___________________

___________________

___________________

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No _______

IN THE

MICHAEL B ELGIN AARON LAWSON HENRY TUCKER AND CHRISTON COLBY

Petitioners v

UNITED STATES DEPARTMENT OF THE TREASURY ET AL

Respondents

On Petition for a Writ of Certiorari to the United States Court of Appeals for the First Circuit

PETITION FOR A WRIT OF CERTIORARI

HARVEY A SCHWARTZ LEAH M NICHOLLS

(Counsel of Record) BRIAN WOLFMAN

RODGERS POWERS amp INSTITUTE FOR PUBLIC

SCHWARTZ LLP REPRESENTATION

18 Tremont St GEORGETOWN UNIVERSITY

Boston MA 02108 LAW CENTER

(617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners July 2011

i

QUESTION PRESENTED

Do federal district courts have jurisdiction overconstitutional claims for equitable relief brought byfederal employees as the Third and DC Circuits haveheld or does the Civil Service Reform Act impliedlypreclude that jurisdiction as the First Second andTenth Circuits have held

ii

PARTIES

Petitioners Michael B ElginAaron Lawson Henry TuckerChriston Colby

RespondentsUnited States of America US Department of the TreasuryUS Department of the Interior

Petitioners initially also sought equitable reliefagainst the President of the United States and theindividual heads of Respondent federal agencies intheir official capacities The district court grantedPetitionersrsquo motion to dismiss their claims against theindividual defendants and those defendants are no longer parties

iii

TABLE OF CONTENTS

QUESTION PRESENTED i

PARTIES ii

TABLE OF AUTHORITIES v

OPINIONS BELOW 1

JURISDICTION 1

STATUTES INVOLVED 1

STATEMENT OF THE CASE 2

A Factual Background 4

B Proceedings Before the Merit SystemsProtection Board and the District Court 8

C Proceedings Before the First Circuit 10

REASONS FOR GRANTING THE WRIT 14

I This Court Should Resolve the Deep andEnduring Circuit Split on the Question Whetherthe Civil Service Reform Act Impliedly PrecludesFederal District Courts From Granting EquitableRelief on the Constitutional Claims of Federal Employees 14

A The Circuit Split 14

iv

B This Courtrsquos Intervention Is Needed to Resolve the Split 21

II The Federal District Court Has Jurisdiction Over Petitionersrsquo Constitutional Claims for Equitable Relief 23

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief 24

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA 27

APPENDIX

Court of Appealsrsquo Decision 1a

District Courtrsquos Decision on Motion for Reconsideration 39a

District Courtrsquos Original Decision 65a

Merits Systems Protection Boardrsquos Decision onPetitioner Elginrsquos Claim 94a

CONCLUSION 32

Civil Service Reform Act 92 Stat 1111 et seq Excerpts 108a

v

TABLE OF AUTHORITIES

CASES

American Federation of Government EmployeesLocal 1 v Stone 502 F3d 1027 (9th Cir 2007) 14 17 18 19 23

Bell v Hood 327 US 678 (1946) 26

Bivens v Six Unknown Federal Narcotics Agents 403 US 388 (1971) 26

Bowen v Michigan Academy of Family Physicians 476 US 667 (1986) 27

Brockmann v Department of the Air Force 27 F3d 544 (Fed Cir 1994) 12 13 31 32

Brooks v Office of Personal Management 59 MSPR 207 (MSPB 1993) 30

Bryant v Cheney 924 F2d 525 (4th Cir 1991) 14 21 22

Bush v Lucas 462 US 367 (1983) 11 15 25

Carlson v Green 446 US 14 (1980) 15 25-26

vi

Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) 20

Chappell v Wallace 462 US 296 (1983) 25

Charner v OPM 2009 MSPB LEXIS 1296 (MSPB Mar 62009) 28-29

Clarke v OPM MSPB LEXIS 7101 (MSPB Dec 172007) 29

Daneshpayeh v Department of the Air Force 1994 WL 18964 (Fed Cir Jan 26 1994) 28

Dotson v Griesa 398 F3d 156 (2d Cir 2005)cert denied 547 US 1191 (2006) 14 20 22

Elgin v Department of the Treasury 2007 MSPB LEXIS 7502 (MSPB Nov 162007) 3

Hardison v Cohen 375 F3d 1262 (11th Cir 2004) 14 21 22

Hubbard v EPA 809 F2d 1 (DC Cir 1986) 15 16 26

Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) 13

vii

Johnson v Robison 415 US 361 (1974) 24 30

Lombardi v Small Business Administration 889 F2d 959 (10th Cir 1989) 19

Maddox v Merit Systems Protection Board 759 F2d 9 (Fed Cir 1985) 27

Manning v Merit Systems Protection Board 742 F2d 1424 (Fed Cir 1984) 31

Marbury v Madison 5 US (1 Cranch) 137 (1803) 16 26

Ex Parte McCardle 74 US (7 Wall) 506 (1869) 16

Mitchum v Hurt 73 F3d 30 (3d Cir 1995) 14 16 17 19 22 25

Osborn v Bank of the United States 22 US (9 Wheat) 738 (1824) 17 26

Paige v Cisneros 91 F3d 40 (7th Cir 1996) 14 21 22

Perez v Merit Systems Protection Board 931 F2d 853 (Fed Cir 1991) 31

Riggin v Office of Senate Fair EmploymentPractices 61 F3d 1563 (Fed Cir 1995) 12 31

viii

Rivera v Department of Veterans Affairs 2008 MSPB LEXIS 2056 (MSPB Mar 312008) 29

Rosano v Department of the Navy 699 F2d 1315 (Fed Cir 1983) 31

Saul v United States 928 F2d 829 (9th Cir 1991) 19

Schweiker v Chilicky 487 US 412 (1988) 25

Spagnola v Mathis 859 F2d 223 (DC Cir 1988) 16

Stanley v Gonzales 476 F3d 653 (9th Cir 2007) 18 19

Steel Co v Citizens for a Better Environment 523 US 83 (1998) 22

Travaglini v Department of Education 18 MSPR 127 (MSPB 1983)affrsquod as modified 23 MSPR 417 (MSPB1984) 28

United States v Fausto 484 US 439 (1988) 11 24

United States v Lee 106 US 196 (1882) 26

ix

Webster v Doe 486 US 592 (1988) 12 18 23 24 27

Whitfield v Department of the Interior 2008 MSPB LEXIS 6910 (MSPB Dec 232008) 29

Whitman v Department of Transportation 547 US 512 (2006) 23 26

Ex Parte Young 209 US 123 (1908) 17 26

STATUTES

Civil Service Reform Act 92 Stat 1111 et seq 2 4 8 11

5 USC sect 702 3 9

5 USC sect 3328 passim

5 USC sectsect 7511-7514 11

5 USC sect 7512(1) 8

5 USC sect 7513(a) 11 27

5 USC sect 7513(d) 8 27

5 USC sect 7701(a) 8

5 USC sect 7703(b)(1) 11

x

28 USC sect 1254 1

28 USC sect 1331 9 26

28 USC sect 2201 3 9

28 USC sect 2202 3 9

50 USC app sect 453 1 4

REGULATIONS AND PROCLAMATION

5 CFR sect 300706(c) 28 29

Proclamation No 4771

28 USC sect 1295(a)(9) 29

28 USC sect 1343 9

28 USC sect 1346 9

50 USC app sect 462(a) 4

50 USC app sect 465(a) 4

5 CFR sect 300707 5

45 Fed Reg 45247 (July 2 1980) 4

xi

OTHER SOURCE

Brief for Respondents Whitman v Department ofTransportation 547 US 512 (2006)(No 04-1131) 2005 WL 2738321 23

PETITION FOR A WRIT OF CERTIORARI Petitioners Michael B Elgin Aaron Lawson Henry

Tucker and Christon Colby respectfully petition for awrit of certiorari to review the judgment of the UnitedStates Court of Appeals for the First Circuit

OPINIONS BELOW The opinion of the United States Court of Appeals

for the First Circuit (Pet App 1a) is published at 641F3d 6 The district courtrsquos decision grantingPetitionersrsquo motion for partial summary judgment anddenying in part and granting in part Respondentsrsquomotion to dismiss (Pet App 65a) is published at 594 FSupp 2d 133 The district courtrsquos decision grantingRespondentsrsquo motion for reconsideration (Pet App39a) is published at 697 F Supp 2d 187

JURISDICTION The judgment of the court of appeals was entered

on April 8 2011 Pet App 2a This Court hasjurisdiction under 28 USC sect 1254(1)

STATUTES INVOLVED 5 USC sect 3328 bars men who fail to register with

the Selective Service from federal agency employmentIn full it provides

(a) An individualmdash (1) who was born after December 31 1959

and is or was required to register under section3 of the Military Selective Service Act (50 AppUSC 453) and

(2) who is not so registered or knowingly andwillfully did not so register before the requirement terminated or became inapplicable to the individual shall be ineligible for

2

appointment to a position in an Executive agency (b) The Office of Personnel Management inconsultation with the Director of the Selective Service System shall prescribe regulations tocarry out this section Such regulations shallinclude provisions prescribing procedures for theadjudication of determinations of whether afailure to register was knowing and willful Suchprocedures shall require that such a determination may not be made if the individualconcerned shows by a preponderance of theevidence that the failure to register was neitherknowing nor willful Such procedures mayprovide that determinations of eligibility underthe requirements of this section shall beadjudicated by the Executive agency making theappointment for which the eligibility is determined The Civil Service Reform Act 92 Stat 1111 et seq

outlines administrative procedures available to certainfederal employees for certain adverse employmentactions Relevant portions of the Civil Service ReformAct are reproduced in the Appendix at 108a

STATEMENT OF THE CASE Petitioners Michael B Elgin Aaron Lawson Henry

Tucker and Christon Colby are former federalemployees Each was terminated or constructivelyterminated from his federal employment under 5USC sect 3328 which imposes a lifetime bar on federalexecutive agency employment on men who do not

3

register with the Selective Service between the ages of18 and 26 First Am Compl para 2

Elgin appealed his termination to the MeritSystems Protection Board (MSPB) arguing that 5USC sect 3328 was a Bill of Attainder and that he wasdiscriminated against on the basis of sex The MSPBdismissed Elginrsquos appeal for lack of jurisdiction PetApp 95a 104a1

Elgin Lawson Tucker and Colby then brought thisaction in district court under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 againsttheir former employers the United States the USDepartment of the Treasury and the US Departmentof the Interior First Am Compl para 5 Petitionerschallenged 5 USC sect 3328 as a Bill of Attainder and asviolative of their constitutional rights to equalprotection on the basis of sex seeking injunctive anddeclaratory relief Id para 4 The district court initiallyheld that 5 USC sect 3328 was a Bill of Attainder butdid not violate Petitionersrsquo right to equal protectionand granted Petitionersrsquo partial motion for summaryjudgment Pet App 66a-67a On reconsideration thedistrict court addressed for the first time whether it had jurisdiction over Petitionersrsquo claims and held thatit did Id at 51a However the district court reversed its holding on the merits ruling that 5 USC sect 3328was not a Bill of Attainder Id at 63a-64a

1The unpublished decision of the MSPB is reproduced in theAppendix at 94a It is also available at Elgin v Department of theTreasury No PH-0752-08-0004-I-1 2007 MSPB LEXIS 7502 (MSPB Nov 16 2007)

4

A divided panel of the Court of Appeals for the FirstCircuit vacated the district courtrsquos decision and remanded for entry of a new judgment denyingPetitioners relief for lack of subject matter jurisdictionId at 15a Acknowledging a circuit split (id at 12a n4) the panel majority held that the district courtlacked jurisdiction to review Petitionersrsquo claimsbecause the Civil Service Reform Act (CSRA) 92 Stat1111 et seq impliedly precludes federal district courtsfrom granting equitable relief for constitutional injuries Id at 12a Because the CSRA does not explicitly preclude such relief the concurring judgewould have found that the district court had jurisdiction Id at 18a

A Factual Background The Military Selective Service Act requires all

males to register with the Selective Service betweenthe ages of 18 and 26 upon proclamation of thePresident 50 USC app sect 453 Since 1980 apresidential proclamation has required registrationand all persons are by statute ldquodeemedrdquo to knowabout the registration requirement Proclamation No4771 45 Fed Reg 45247 (July 2 1980) 50 USC appsect 465(a) Failure to register is a crime punishable bya fine of up to $10000 and up to five years in prisonMen can be prosecuted until their 31st birthdays Id sect 462(a) In addition in 1986 Congress enacted 5USC sect 3328 which further penalizes men whoknowingly and willfully fail to register by imposing alifetime bar on federal executive agency employmentRegulations provide for the termination of employeeswho fail to register and the Office of PersonnelManagement (OPM) is responsible for determining

5

whether the failure to register was knowing andwillful 5 CFR sect 300707

The Selective Service System has no record ofregistration for any of the Petitioners Three ofthemmdashElgin Tucker and Colbymdashdid not becomeaware of the registration requirement until after their26th birthdays when it was too late to register ThefourthmdashLawsonmdashknew about the requirement andbelieves that he registered but the Selective ServiceSystem does not have any record of his registrationElgin Lawson and Colby sought determinations thattheir failure to register was not knowing and willfulbut OPM denied their claims

Petitioners are former employees of federal agencies Elgin Lawson and Colby were terminatedsolely under 5 USC sect 3328 because they failed toregister Tucker resigned from one agency when hisfailure to register became apparent and his offer ofemployment from a second agency was withdrawnsolely because he failed to register

1 Michael B Elgin was first hired by the InternalRevenue Service (IRS) an agency of the TreasuryDepartment in 1991 as a low-level data transcriberPet App 95a Over the next sixteen years Elginconsistently received glowing evaluations and waspromoted to positions with increasing responsibilityFirst Am Compl para 31 As part of a routine backgroundinvestigation when he was offered a promotion in 2002the IRS learned that Elgin had not registered with theSelective Service and passed that information on toOPM Id parapara 32-34 Nevertheless Elgin was promotedId para 33

6

In 2003 OPM determined that Elgin was ineligiblefor federal employment under 5 USC sect 3328 becausehe had failed to register with the Selective ServiceElgin sought a waiver that would permit his employment arguing that his failure to register hadnot been knowing and willful because he had not beenaware of the registration requirement at age 18 hewas struggling to complete high school and support hisson while being virtually homeless Id parapara 29-30 OPMdenied his request for a waiver in 2006 BothMassachusetts Senators and the IRS asked OPM to reconsider explaining that Elgin was a valued IRSemployee whose termination would negatively affectthe agency and that Elginrsquos failure to register wasinadvertent Id para 34 OPM denied the Senatorsrsquo and IRSrsquos request Id para 35 Elgin was terminated on July 27 2007 Id para 36

2 Aaron Lawson has been a wildfire fighter since1997 first with the California Department of Forestryand later with the US Forest Service Id para 40 He isa specialist in directing helicopter crews fighting forestfires Id para 41 The Government has spent tens ofthousands of dollars training him to do this dangerouswork Id In 2003 the Bureau of Land Management adivision of the Interior Department in conjunctionwith the US Forest Service hired him as a wildfire fighter helicopter captain Id para 40 After he was hiredLawson learned that the Selective Service has no record of his registration Id Lawson believes that he completed the registration forms at his local post officearound the time of his 18th birthday Id para 39 TheBureau of Land Management and US Forest Servicerequested a waiver from OPM that would make

7

Lawson eligible for employment Id para 42 OPM deniedthe waiver Lawson was terminated Id

3 In 2007 Henry Tucker was a FinancialInstitution Specialist at the Federal Deposit InsuranceCorporation where he had been employed for 17 yearsId para 44 He had never been aware of the requirementto register with the Selective Service Tuckerrsquos motherleft him when he was 16 and he moved frequently as a teenager Id para 43 In December 2007 the FederalDeposit Insurance Corporation learned that Tuckerhad not registered with the Selective Service andreferred the matter to OPM Id para 45

Fearing that he would be fired Tucker resigned andapplied for a position with the National Institutes ofHealth which offered Tucker a job as a BudgetAnalyst Id para 46 It withdrew the offer however afterlearning that Tucker had not registered with theSelective Service Id

4 Christon Colby began working at the IRS in 2001as a temporary employee and was hired permanentlyin 2002 Id parapara 49-52 Colby received consistentlyexcellent performance reviews and was promoted topositions with increasing responsibility Id para 53 In2003 the IRS informed Colby that it had become awareof his failure to register with the Selective Service Id para 54 Colby sought a waiver from OPM on the basisthat his failure to register was not knowing and willfulColby explained that he had moved out of his parentsrsquohome at age 18 and was unaware of the registrationrequirement until he was too old to register Id parapara 47-48 55

8

In 2006 OPM declined to issue a waiver makinghim eligible for employment Id para 57 Colbyrsquossupervisor at the IRS appealed the determinationwithin OPM explaining that Colby was ldquoan extremelyvaluable and integralrdquo employee and noting that theIRS had invested $25000 in training Colby Id para 58OPM affirmed its decision not to issue Colby a waiverand Colby was terminated on August 3 2007 Id parapara 59-60

B Proceedings Before the Merit SystemsProtection Board and the District Court

The Civil Service Reform Act (CSRA) 92 Stat 1111 et seq provides that non-exempt federal employees(such as Petitioners had been) may challenge theirterminations before the Merit Systems ProtectionBoard (MSPB) under certain conditions 5 USCsectsect 7701(a) 7512(1) 7513(d) Shortly after beingterminated under 5 USC sect 3328 Petitioner Elginappealed the decision to the MSPB arguing that 5USC sect 3328 is a Bill of Attainder and that he wassubject to unconstitutional sex-based discriminationbecause the Selective Service registration requirementonly applies to men On November 16 2007 at theTreasury Departmentrsquos urging the MSPB dismissedElginrsquos appeal for lack of jurisdiction Pet App 100a-01a The MSPB explained that it lacked jurisdictionover appeals where employees were terminated underabsolute statutory prohibitions such as 5 USCsect 3328 Id The MSPB also held that it lacked authorityto rule on the constitutionality of a statute and notedthat to the extent it could review any constitutional ordiscrimination claims it did not have jurisdiction over

9

those claims without an explicit grant of jurisdictionwhich was absent here Id at 101a-02a

After Elginrsquos MSPB appeal was dismissed onDecember 28 2007 Elgin joined by Lawson Tuckerand Colby brought this action challenging theconstitutionality of 5 USC sect 3328 in the UnitedStates District Court for the District of Massachusetts against the United States of America the USDepartment of the Treasury and the US Departmentof the Interior (collectively the Government) First AmCompl para 1 Petitioners contended that 5 USC sect 3328is a Bill of Attainder prohibited by Article I Section 9Clause 3 of the Constitution because it legislativelyimposes punishmentmdashthe lifetime bar on federalemploymentmdashon a specific group of men for theirirreversible failure to register Petitioners also contended that because the Selective Service registration requirement and employment bar appliesto men and not women it unlawfully discriminatesunder the equal protection component of the FifthAmendment Id parapara 1 4 Petitioners sought declaratoryand injunctive relief including reinstatement Id para 4The claims were brought under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 andjurisdiction was premised on 28 USC sectsect 1331 1343and 1346 First Am Compl para 5 Petitioners amendedthe complaint in January 2008 to add a class actionclaim Id para 1

The Government moved to dismiss arguing thatPetitionersrsquo claims failed on the merits Pet App 66aThe Government did not at that time contest the district courtrsquos jurisdiction Petitioners responded by

10

opposing the motion to dismiss as to the equalprotection claim and seeking partial summaryjudgment as to liability on the Bill of Attainder claimAfter a hearing the district court granted Petitionersrsquomotion for partial summary judgment holding that 5USC sect 3328 was a Bill of Attainder and granted theGovernmentrsquos motion to dismiss in part holding thatthe Selective Service scheme did not violate Petitionersrsquo rights to equal protection Id at 66a-67a

Petitioners then filed a motion for class certification and sought a preliminary injunction reinstatingPetitioners The Government filed a motion for reconsideration of the district courtrsquos grant of summaryjudgment on the Bill of Attainder claim contendingboth that the claim failed on the merits and arguing forthe first time that the district court did not have subject matter jurisdiction over the claim because theCSRA precludes district court review of federalemployment decisions Id at 41a-42a The district court held that it did have jurisdiction but granted themotion for reconsideration because it determined on reexamination that 5 USC sect 3328 was not a Bill ofAttainder Id at 51a 63a-64a

C Proceedings Before the First Circuit Petitioners appealed the district courtrsquos decisions

dismissing the equal protection claim and granting themotion for reconsideration on the Bill of Attainder claim to the United States Court of Appeals for theFirst Circuit The panel agreed that Petitionersrsquo claimsshould be dismissed but was divided on the questionwhether the district court had jurisdiction overPetitionersrsquo constitutional claims for equitable reliefId at 15a

11

The majority agreed with the Government that theCSRA provides the exclusive remedy for the termination or constructive termination of federal employees even for facial constitutional challenges likethis one 92 Stat 1111 et seq (codified as amended invarious sections of 5 USC) The CSRA permits non-exempt federal employees such as Petitioners toappeal their terminations to the MSPB if they wereremoved ldquofor such cause as will promote the efficiencyof the servicerdquo 5 USC sect 7513(a) see generally idsectsect 7511-7514 Employees can then appeal the MSPBdecision to the United States Court of Appeals for theFederal Circuit Id sect 7703(b)(1) As the majority notedthis Court has held that though the CSRA does notexplicitly state it is the exclusive remedy itscomprehensiveness generally precludes ordinarydistrict court review of federal employee removals PetApp 6a (citing United States v Fausto 484 US 439 443-55 (1988) and Bush v Lucas 462 US 367 368 (1983))

The majority held that Petitionersrsquo terminationswhich were based solely on 5 USC sect 3328 werenonetheless terminations made for ldquoefficiency of theservicerdquo under 5 USC sect 7513(a) and were thereforesubject to the review procedures outlined by the CSRAPet App 7a-9a Noting the circuit split on thequestion the majority held that the CSRA is theexclusive remedy even when the employee brings onlyconstitutional claims for equitable relief Id at 11a-12a amp 12a n4 Therefore the district court lacked jurisdiction over Petitionersrsquo claims

The majority recognized however that its conclusion might be different if the CSRA provided no

12

remedy for Petitionersrsquo constitutional claims Id at 13a Though the majority did not dispute that theMSPB was powerless to strike down a statute asunconstitutional the majority reasoned that theFederal Circuit had the authority to do so on appealfrom the MSPB Id at 14a Therefore according to themajority the merits of Petitionersrsquo constitutionalclaims could be aired and decided at the Federal Circuit if not the MSPB

Petitioners had argued that their constitutionalclaims could not have been heard in the Federal Circuit because the Federal Circuit has itself repeatedly stated that its jurisdiction on appeal fromthe MSPB is coextensive with the jurisdiction of theMSPB which would not have had jurisdiction overPetitionersrsquo claims The majority disagreed reasoningthat the Federal Circuit had never addressed the question of its jurisdiction under these precisecircumstances and had posited that it would berequired to entertain constitutional claims seekingequitable relief under Webster v Doe 486 US 592 (1988) Pet App 14a (citing Riggin v Office of SenateFair Emprsquot Practices 61 F3d 1563 1570 (Fed Cir 1995) and Brockmann v Deprsquot of the Air Force 27 F3d 544 546-47 (Fed Cir 1994)) Even if the FederalCircuit would have held that it lacked jurisdiction toreview Petitionersrsquo constitutional claims the majorityexplained Petitioners could still have soughtadjudication of their claims on certiorari in this CourtId

Judge Stahl disagreed that the district court lackedjurisdiction but would have rejected Petitionersrsquo claimson the merits Id at 15a Judge Stahl sided with the

13

Third Ninth and DC Circuits and held that because the CSRA does not explicitly state that it prohibitsemployees from bringing constitutional challenges forequitable relief in district court it does not precludesuch actions Id at 23a-24a

Judge Stahl disagreed with the majority thatPetitionersrsquo constitutional claims could have been addressed in the Federal Circuit He explained that theFederal Circuitrsquos jurisdiction has never exceeded thescope of the MSPBrsquos jurisdiction on review of appealsfrom the MSPB even when the appellant assertedconstitutional claims beyond the MSPBrsquos jurisdictionId at 21a-22a (citing Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) (unpublished)) Judge Stahlnoted that in Brockmann v Department of the Air Force relied on by the majority the Federal Circuithypothesized about the possibility of reviewingconstitutional claims but did not actually state that itwould or could do so Id (discussing Brockmann 27 F3d at 546-47) Therefore Judge Stahl reasoned thebetter reading of the Federal Circuitrsquos decisions wasthat it would not have had jurisdiction and the CSRAprocess would not have provided any review ofPetitionersrsquo constitutional claims Id at 22a

14

REASONS FOR GRANTING THE WRIT I This Court Should Resolve the Deep and Enduring

Circuit Split on the Question Whether the CivilService Reform Act Impliedly Precludes FederalDistrict Courts From Granting Equitable Relief onthe Constitutional Claims of Federal Employees As the First Circuit acknowledged this case raises

a question on which there is a deep and longstandingcircuit split whether the CSRA impliedly precludesfederal district courts from exercising jurisdiction overthe constitutional claims of federal employees seekinginjunctive relief Id at 12a n4 24a-25a The Third and DC Circuits have held that the CSRA does not preclude district court jurisdiction over equitableconstitutional claims the First Second and Tenth Circuits have held that it does and four other circuits have recognized the split2

A The Circuit Split 1 Two circuitsmdashthe Third and DC Circuitsmdashhave

held that the CSRA does not preclude federal

2See Am Fedrsquon of Govrsquot Emps Local 1 v Stone 502 F3d 1027 1037-39 (9th Cir 2007) (discussing circuit split) Dotson v Griesa 398 F3d 156 179 (2d Cir 2005) cert denied 547 US 1191 (2006)(ldquoThe circuits are divided as to whether equitable relief such asreinstatement is available to federal employees notwithstandingtheir general agreement that the CSRA precludes Bivens claims for damagesrdquo) Hardison v Cohen 375 F3d 1262 1266 (11th Cir2004) (ldquoSeveral of our sister circuits have differed on whetherequitable relief is precluded by the presence of a statutoryremedial schemerdquo) Paige v Cisneros 91 F3d 40 44 (7th Cir 1996) (discussing circuit split) Mitchum v Hurt 73 F3d 30 34 (3d Cir 1995) (discussing circuit split) Bryant v Cheney 924 F2d 525 525 (4th Cir 1991) (discussing ldquotension among the circuitsrdquo)

15

employees from bringing claims for equitable relief forconstitutional injuries in federal district court Athirdmdashthe Ninth Circuitmdashhas expressly agreed withthe Third and DC Circuits and has held that at least in some circumstances federal employees may bringconstitutional claims for equitable relief in district court

In Hubbard v EPA 809 F2d 1 (DC Cir 1986) adetective with the DC Police Department alleged thathe had been denied a position with the EnvironmentalProtection Agency because of statements he made tothe press about an investigation into illegal drug useby members of Congress Under the CSRA Hubbardcould appeal the decisionmdashincluding his constitutionalclaims under the First Amendmentmdashto OPM and file a petition with the Office of Special Counsel Hubbardbrought a Bivens action in district court for damages aswell as a claim for injunctive relief Id at 1 3 8

Relying on this Courtrsquos decision in Bush v Lucas the DC Circuit held that Hubbardrsquos Bivens claim for damages was precluded by the CSRArsquos comprehensiveremedial scheme In Bush this Court rejected a federalemployeersquos Bivens claim for damages because theldquocomprehensive procedural and substantive provisionsrdquoof the CSRA are ldquospecial factors counselling hesitationin the absence of affirmative action by CongressrdquoBush 462 US at 377 (quoting Carlson v Green 446 US 14 18-19 (1980)) However the DC Circuit ruledthat the CSRA did not preclude Hubbardrsquos claim forequitable relief because to eliminate courtsrsquo jurisdictionover equitable relief for constitutional violationsCongress must do so explicitly and the CSRA did notcontain any provision explicitly eliminating federal

16

court jurisdiction The DC Circuit explained thedifference

The courtsrsquo power to impose equitable remediesagainst agencies is broader than its power toimpose legal remedies against individualsBivens actions are a recent judicial creation and as Carlson v Green made clear comparativelyeasy for Congress to preempt The courtsrsquo power to enjoin unconstitutional acts by the government however is inherent in the Constitution itself see Marbury v Madison 5 US (1 Cranch) 137 LEd 60 (1803) AlthoughCongress may limit this power see Ex Parte McCardle 74 US (7 Wall) 506 19 LEd 264(1869) CSRA did not explicitly limit ourjurisdiction to enjoin unconstitutional personnelactions by federal agencies

Hubbard 809 F2d at 11 n15 The Bivens portion of the Hubbard decision was

reheard and affirmed en banc in Spagnola v Mathis 859 F2d 223 (DC Cir 1988) Although the en banccourt did not rehear the question whether the CSRAalso precludes constitutional claims for equitable reliefit made clear that its decision with regard to theBivens claim left the equitable claim intact ldquo[T]imeand again this court has affirmed the right of civil servants to seek equitable relief against their supervisors and the agency itself in vindication oftheir constitutional rightsrdquo Id at 229-30

In Mitchum v Hurt 73 F3d at 36 the Third Circuit joined the DC Circuit in holding that theCSRA did not preclude district court jurisdiction over

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

ii

PARTIES

Petitioners Michael B ElginAaron Lawson Henry TuckerChriston Colby

RespondentsUnited States of America US Department of the TreasuryUS Department of the Interior

Petitioners initially also sought equitable reliefagainst the President of the United States and theindividual heads of Respondent federal agencies intheir official capacities The district court grantedPetitionersrsquo motion to dismiss their claims against theindividual defendants and those defendants are no longer parties

iii

TABLE OF CONTENTS

QUESTION PRESENTED i

PARTIES ii

TABLE OF AUTHORITIES v

OPINIONS BELOW 1

JURISDICTION 1

STATUTES INVOLVED 1

STATEMENT OF THE CASE 2

A Factual Background 4

B Proceedings Before the Merit SystemsProtection Board and the District Court 8

C Proceedings Before the First Circuit 10

REASONS FOR GRANTING THE WRIT 14

I This Court Should Resolve the Deep andEnduring Circuit Split on the Question Whetherthe Civil Service Reform Act Impliedly PrecludesFederal District Courts From Granting EquitableRelief on the Constitutional Claims of Federal Employees 14

A The Circuit Split 14

iv

B This Courtrsquos Intervention Is Needed to Resolve the Split 21

II The Federal District Court Has Jurisdiction Over Petitionersrsquo Constitutional Claims for Equitable Relief 23

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief 24

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA 27

APPENDIX

Court of Appealsrsquo Decision 1a

District Courtrsquos Decision on Motion for Reconsideration 39a

District Courtrsquos Original Decision 65a

Merits Systems Protection Boardrsquos Decision onPetitioner Elginrsquos Claim 94a

CONCLUSION 32

Civil Service Reform Act 92 Stat 1111 et seq Excerpts 108a

v

TABLE OF AUTHORITIES

CASES

American Federation of Government EmployeesLocal 1 v Stone 502 F3d 1027 (9th Cir 2007) 14 17 18 19 23

Bell v Hood 327 US 678 (1946) 26

Bivens v Six Unknown Federal Narcotics Agents 403 US 388 (1971) 26

Bowen v Michigan Academy of Family Physicians 476 US 667 (1986) 27

Brockmann v Department of the Air Force 27 F3d 544 (Fed Cir 1994) 12 13 31 32

Brooks v Office of Personal Management 59 MSPR 207 (MSPB 1993) 30

Bryant v Cheney 924 F2d 525 (4th Cir 1991) 14 21 22

Bush v Lucas 462 US 367 (1983) 11 15 25

Carlson v Green 446 US 14 (1980) 15 25-26

vi

Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) 20

Chappell v Wallace 462 US 296 (1983) 25

Charner v OPM 2009 MSPB LEXIS 1296 (MSPB Mar 62009) 28-29

Clarke v OPM MSPB LEXIS 7101 (MSPB Dec 172007) 29

Daneshpayeh v Department of the Air Force 1994 WL 18964 (Fed Cir Jan 26 1994) 28

Dotson v Griesa 398 F3d 156 (2d Cir 2005)cert denied 547 US 1191 (2006) 14 20 22

Elgin v Department of the Treasury 2007 MSPB LEXIS 7502 (MSPB Nov 162007) 3

Hardison v Cohen 375 F3d 1262 (11th Cir 2004) 14 21 22

Hubbard v EPA 809 F2d 1 (DC Cir 1986) 15 16 26

Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) 13

vii

Johnson v Robison 415 US 361 (1974) 24 30

Lombardi v Small Business Administration 889 F2d 959 (10th Cir 1989) 19

Maddox v Merit Systems Protection Board 759 F2d 9 (Fed Cir 1985) 27

Manning v Merit Systems Protection Board 742 F2d 1424 (Fed Cir 1984) 31

Marbury v Madison 5 US (1 Cranch) 137 (1803) 16 26

Ex Parte McCardle 74 US (7 Wall) 506 (1869) 16

Mitchum v Hurt 73 F3d 30 (3d Cir 1995) 14 16 17 19 22 25

Osborn v Bank of the United States 22 US (9 Wheat) 738 (1824) 17 26

Paige v Cisneros 91 F3d 40 (7th Cir 1996) 14 21 22

Perez v Merit Systems Protection Board 931 F2d 853 (Fed Cir 1991) 31

Riggin v Office of Senate Fair EmploymentPractices 61 F3d 1563 (Fed Cir 1995) 12 31

viii

Rivera v Department of Veterans Affairs 2008 MSPB LEXIS 2056 (MSPB Mar 312008) 29

Rosano v Department of the Navy 699 F2d 1315 (Fed Cir 1983) 31

Saul v United States 928 F2d 829 (9th Cir 1991) 19

Schweiker v Chilicky 487 US 412 (1988) 25

Spagnola v Mathis 859 F2d 223 (DC Cir 1988) 16

Stanley v Gonzales 476 F3d 653 (9th Cir 2007) 18 19

Steel Co v Citizens for a Better Environment 523 US 83 (1998) 22

Travaglini v Department of Education 18 MSPR 127 (MSPB 1983)affrsquod as modified 23 MSPR 417 (MSPB1984) 28

United States v Fausto 484 US 439 (1988) 11 24

United States v Lee 106 US 196 (1882) 26

ix

Webster v Doe 486 US 592 (1988) 12 18 23 24 27

Whitfield v Department of the Interior 2008 MSPB LEXIS 6910 (MSPB Dec 232008) 29

Whitman v Department of Transportation 547 US 512 (2006) 23 26

Ex Parte Young 209 US 123 (1908) 17 26

STATUTES

Civil Service Reform Act 92 Stat 1111 et seq 2 4 8 11

5 USC sect 702 3 9

5 USC sect 3328 passim

5 USC sectsect 7511-7514 11

5 USC sect 7512(1) 8

5 USC sect 7513(a) 11 27

5 USC sect 7513(d) 8 27

5 USC sect 7701(a) 8

5 USC sect 7703(b)(1) 11

x

28 USC sect 1254 1

28 USC sect 1331 9 26

28 USC sect 2201 3 9

28 USC sect 2202 3 9

50 USC app sect 453 1 4

REGULATIONS AND PROCLAMATION

5 CFR sect 300706(c) 28 29

Proclamation No 4771

28 USC sect 1295(a)(9) 29

28 USC sect 1343 9

28 USC sect 1346 9

50 USC app sect 462(a) 4

50 USC app sect 465(a) 4

5 CFR sect 300707 5

45 Fed Reg 45247 (July 2 1980) 4

xi

OTHER SOURCE

Brief for Respondents Whitman v Department ofTransportation 547 US 512 (2006)(No 04-1131) 2005 WL 2738321 23

PETITION FOR A WRIT OF CERTIORARI Petitioners Michael B Elgin Aaron Lawson Henry

Tucker and Christon Colby respectfully petition for awrit of certiorari to review the judgment of the UnitedStates Court of Appeals for the First Circuit

OPINIONS BELOW The opinion of the United States Court of Appeals

for the First Circuit (Pet App 1a) is published at 641F3d 6 The district courtrsquos decision grantingPetitionersrsquo motion for partial summary judgment anddenying in part and granting in part Respondentsrsquomotion to dismiss (Pet App 65a) is published at 594 FSupp 2d 133 The district courtrsquos decision grantingRespondentsrsquo motion for reconsideration (Pet App39a) is published at 697 F Supp 2d 187

JURISDICTION The judgment of the court of appeals was entered

on April 8 2011 Pet App 2a This Court hasjurisdiction under 28 USC sect 1254(1)

STATUTES INVOLVED 5 USC sect 3328 bars men who fail to register with

the Selective Service from federal agency employmentIn full it provides

(a) An individualmdash (1) who was born after December 31 1959

and is or was required to register under section3 of the Military Selective Service Act (50 AppUSC 453) and

(2) who is not so registered or knowingly andwillfully did not so register before the requirement terminated or became inapplicable to the individual shall be ineligible for

2

appointment to a position in an Executive agency (b) The Office of Personnel Management inconsultation with the Director of the Selective Service System shall prescribe regulations tocarry out this section Such regulations shallinclude provisions prescribing procedures for theadjudication of determinations of whether afailure to register was knowing and willful Suchprocedures shall require that such a determination may not be made if the individualconcerned shows by a preponderance of theevidence that the failure to register was neitherknowing nor willful Such procedures mayprovide that determinations of eligibility underthe requirements of this section shall beadjudicated by the Executive agency making theappointment for which the eligibility is determined The Civil Service Reform Act 92 Stat 1111 et seq

outlines administrative procedures available to certainfederal employees for certain adverse employmentactions Relevant portions of the Civil Service ReformAct are reproduced in the Appendix at 108a

STATEMENT OF THE CASE Petitioners Michael B Elgin Aaron Lawson Henry

Tucker and Christon Colby are former federalemployees Each was terminated or constructivelyterminated from his federal employment under 5USC sect 3328 which imposes a lifetime bar on federalexecutive agency employment on men who do not

3

register with the Selective Service between the ages of18 and 26 First Am Compl para 2

Elgin appealed his termination to the MeritSystems Protection Board (MSPB) arguing that 5USC sect 3328 was a Bill of Attainder and that he wasdiscriminated against on the basis of sex The MSPBdismissed Elginrsquos appeal for lack of jurisdiction PetApp 95a 104a1

Elgin Lawson Tucker and Colby then brought thisaction in district court under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 againsttheir former employers the United States the USDepartment of the Treasury and the US Departmentof the Interior First Am Compl para 5 Petitionerschallenged 5 USC sect 3328 as a Bill of Attainder and asviolative of their constitutional rights to equalprotection on the basis of sex seeking injunctive anddeclaratory relief Id para 4 The district court initiallyheld that 5 USC sect 3328 was a Bill of Attainder butdid not violate Petitionersrsquo right to equal protectionand granted Petitionersrsquo partial motion for summaryjudgment Pet App 66a-67a On reconsideration thedistrict court addressed for the first time whether it had jurisdiction over Petitionersrsquo claims and held thatit did Id at 51a However the district court reversed its holding on the merits ruling that 5 USC sect 3328was not a Bill of Attainder Id at 63a-64a

1The unpublished decision of the MSPB is reproduced in theAppendix at 94a It is also available at Elgin v Department of theTreasury No PH-0752-08-0004-I-1 2007 MSPB LEXIS 7502 (MSPB Nov 16 2007)

4

A divided panel of the Court of Appeals for the FirstCircuit vacated the district courtrsquos decision and remanded for entry of a new judgment denyingPetitioners relief for lack of subject matter jurisdictionId at 15a Acknowledging a circuit split (id at 12a n4) the panel majority held that the district courtlacked jurisdiction to review Petitionersrsquo claimsbecause the Civil Service Reform Act (CSRA) 92 Stat1111 et seq impliedly precludes federal district courtsfrom granting equitable relief for constitutional injuries Id at 12a Because the CSRA does not explicitly preclude such relief the concurring judgewould have found that the district court had jurisdiction Id at 18a

A Factual Background The Military Selective Service Act requires all

males to register with the Selective Service betweenthe ages of 18 and 26 upon proclamation of thePresident 50 USC app sect 453 Since 1980 apresidential proclamation has required registrationand all persons are by statute ldquodeemedrdquo to knowabout the registration requirement Proclamation No4771 45 Fed Reg 45247 (July 2 1980) 50 USC appsect 465(a) Failure to register is a crime punishable bya fine of up to $10000 and up to five years in prisonMen can be prosecuted until their 31st birthdays Id sect 462(a) In addition in 1986 Congress enacted 5USC sect 3328 which further penalizes men whoknowingly and willfully fail to register by imposing alifetime bar on federal executive agency employmentRegulations provide for the termination of employeeswho fail to register and the Office of PersonnelManagement (OPM) is responsible for determining

5

whether the failure to register was knowing andwillful 5 CFR sect 300707

The Selective Service System has no record ofregistration for any of the Petitioners Three ofthemmdashElgin Tucker and Colbymdashdid not becomeaware of the registration requirement until after their26th birthdays when it was too late to register ThefourthmdashLawsonmdashknew about the requirement andbelieves that he registered but the Selective ServiceSystem does not have any record of his registrationElgin Lawson and Colby sought determinations thattheir failure to register was not knowing and willfulbut OPM denied their claims

Petitioners are former employees of federal agencies Elgin Lawson and Colby were terminatedsolely under 5 USC sect 3328 because they failed toregister Tucker resigned from one agency when hisfailure to register became apparent and his offer ofemployment from a second agency was withdrawnsolely because he failed to register

1 Michael B Elgin was first hired by the InternalRevenue Service (IRS) an agency of the TreasuryDepartment in 1991 as a low-level data transcriberPet App 95a Over the next sixteen years Elginconsistently received glowing evaluations and waspromoted to positions with increasing responsibilityFirst Am Compl para 31 As part of a routine backgroundinvestigation when he was offered a promotion in 2002the IRS learned that Elgin had not registered with theSelective Service and passed that information on toOPM Id parapara 32-34 Nevertheless Elgin was promotedId para 33

6

In 2003 OPM determined that Elgin was ineligiblefor federal employment under 5 USC sect 3328 becausehe had failed to register with the Selective ServiceElgin sought a waiver that would permit his employment arguing that his failure to register hadnot been knowing and willful because he had not beenaware of the registration requirement at age 18 hewas struggling to complete high school and support hisson while being virtually homeless Id parapara 29-30 OPMdenied his request for a waiver in 2006 BothMassachusetts Senators and the IRS asked OPM to reconsider explaining that Elgin was a valued IRSemployee whose termination would negatively affectthe agency and that Elginrsquos failure to register wasinadvertent Id para 34 OPM denied the Senatorsrsquo and IRSrsquos request Id para 35 Elgin was terminated on July 27 2007 Id para 36

2 Aaron Lawson has been a wildfire fighter since1997 first with the California Department of Forestryand later with the US Forest Service Id para 40 He isa specialist in directing helicopter crews fighting forestfires Id para 41 The Government has spent tens ofthousands of dollars training him to do this dangerouswork Id In 2003 the Bureau of Land Management adivision of the Interior Department in conjunctionwith the US Forest Service hired him as a wildfire fighter helicopter captain Id para 40 After he was hiredLawson learned that the Selective Service has no record of his registration Id Lawson believes that he completed the registration forms at his local post officearound the time of his 18th birthday Id para 39 TheBureau of Land Management and US Forest Servicerequested a waiver from OPM that would make

7

Lawson eligible for employment Id para 42 OPM deniedthe waiver Lawson was terminated Id

3 In 2007 Henry Tucker was a FinancialInstitution Specialist at the Federal Deposit InsuranceCorporation where he had been employed for 17 yearsId para 44 He had never been aware of the requirementto register with the Selective Service Tuckerrsquos motherleft him when he was 16 and he moved frequently as a teenager Id para 43 In December 2007 the FederalDeposit Insurance Corporation learned that Tuckerhad not registered with the Selective Service andreferred the matter to OPM Id para 45

Fearing that he would be fired Tucker resigned andapplied for a position with the National Institutes ofHealth which offered Tucker a job as a BudgetAnalyst Id para 46 It withdrew the offer however afterlearning that Tucker had not registered with theSelective Service Id

4 Christon Colby began working at the IRS in 2001as a temporary employee and was hired permanentlyin 2002 Id parapara 49-52 Colby received consistentlyexcellent performance reviews and was promoted topositions with increasing responsibility Id para 53 In2003 the IRS informed Colby that it had become awareof his failure to register with the Selective Service Id para 54 Colby sought a waiver from OPM on the basisthat his failure to register was not knowing and willfulColby explained that he had moved out of his parentsrsquohome at age 18 and was unaware of the registrationrequirement until he was too old to register Id parapara 47-48 55

8

In 2006 OPM declined to issue a waiver makinghim eligible for employment Id para 57 Colbyrsquossupervisor at the IRS appealed the determinationwithin OPM explaining that Colby was ldquoan extremelyvaluable and integralrdquo employee and noting that theIRS had invested $25000 in training Colby Id para 58OPM affirmed its decision not to issue Colby a waiverand Colby was terminated on August 3 2007 Id parapara 59-60

B Proceedings Before the Merit SystemsProtection Board and the District Court

The Civil Service Reform Act (CSRA) 92 Stat 1111 et seq provides that non-exempt federal employees(such as Petitioners had been) may challenge theirterminations before the Merit Systems ProtectionBoard (MSPB) under certain conditions 5 USCsectsect 7701(a) 7512(1) 7513(d) Shortly after beingterminated under 5 USC sect 3328 Petitioner Elginappealed the decision to the MSPB arguing that 5USC sect 3328 is a Bill of Attainder and that he wassubject to unconstitutional sex-based discriminationbecause the Selective Service registration requirementonly applies to men On November 16 2007 at theTreasury Departmentrsquos urging the MSPB dismissedElginrsquos appeal for lack of jurisdiction Pet App 100a-01a The MSPB explained that it lacked jurisdictionover appeals where employees were terminated underabsolute statutory prohibitions such as 5 USCsect 3328 Id The MSPB also held that it lacked authorityto rule on the constitutionality of a statute and notedthat to the extent it could review any constitutional ordiscrimination claims it did not have jurisdiction over

9

those claims without an explicit grant of jurisdictionwhich was absent here Id at 101a-02a

After Elginrsquos MSPB appeal was dismissed onDecember 28 2007 Elgin joined by Lawson Tuckerand Colby brought this action challenging theconstitutionality of 5 USC sect 3328 in the UnitedStates District Court for the District of Massachusetts against the United States of America the USDepartment of the Treasury and the US Departmentof the Interior (collectively the Government) First AmCompl para 1 Petitioners contended that 5 USC sect 3328is a Bill of Attainder prohibited by Article I Section 9Clause 3 of the Constitution because it legislativelyimposes punishmentmdashthe lifetime bar on federalemploymentmdashon a specific group of men for theirirreversible failure to register Petitioners also contended that because the Selective Service registration requirement and employment bar appliesto men and not women it unlawfully discriminatesunder the equal protection component of the FifthAmendment Id parapara 1 4 Petitioners sought declaratoryand injunctive relief including reinstatement Id para 4The claims were brought under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 andjurisdiction was premised on 28 USC sectsect 1331 1343and 1346 First Am Compl para 5 Petitioners amendedthe complaint in January 2008 to add a class actionclaim Id para 1

The Government moved to dismiss arguing thatPetitionersrsquo claims failed on the merits Pet App 66aThe Government did not at that time contest the district courtrsquos jurisdiction Petitioners responded by

10

opposing the motion to dismiss as to the equalprotection claim and seeking partial summaryjudgment as to liability on the Bill of Attainder claimAfter a hearing the district court granted Petitionersrsquomotion for partial summary judgment holding that 5USC sect 3328 was a Bill of Attainder and granted theGovernmentrsquos motion to dismiss in part holding thatthe Selective Service scheme did not violate Petitionersrsquo rights to equal protection Id at 66a-67a

Petitioners then filed a motion for class certification and sought a preliminary injunction reinstatingPetitioners The Government filed a motion for reconsideration of the district courtrsquos grant of summaryjudgment on the Bill of Attainder claim contendingboth that the claim failed on the merits and arguing forthe first time that the district court did not have subject matter jurisdiction over the claim because theCSRA precludes district court review of federalemployment decisions Id at 41a-42a The district court held that it did have jurisdiction but granted themotion for reconsideration because it determined on reexamination that 5 USC sect 3328 was not a Bill ofAttainder Id at 51a 63a-64a

C Proceedings Before the First Circuit Petitioners appealed the district courtrsquos decisions

dismissing the equal protection claim and granting themotion for reconsideration on the Bill of Attainder claim to the United States Court of Appeals for theFirst Circuit The panel agreed that Petitionersrsquo claimsshould be dismissed but was divided on the questionwhether the district court had jurisdiction overPetitionersrsquo constitutional claims for equitable reliefId at 15a

11

The majority agreed with the Government that theCSRA provides the exclusive remedy for the termination or constructive termination of federal employees even for facial constitutional challenges likethis one 92 Stat 1111 et seq (codified as amended invarious sections of 5 USC) The CSRA permits non-exempt federal employees such as Petitioners toappeal their terminations to the MSPB if they wereremoved ldquofor such cause as will promote the efficiencyof the servicerdquo 5 USC sect 7513(a) see generally idsectsect 7511-7514 Employees can then appeal the MSPBdecision to the United States Court of Appeals for theFederal Circuit Id sect 7703(b)(1) As the majority notedthis Court has held that though the CSRA does notexplicitly state it is the exclusive remedy itscomprehensiveness generally precludes ordinarydistrict court review of federal employee removals PetApp 6a (citing United States v Fausto 484 US 439 443-55 (1988) and Bush v Lucas 462 US 367 368 (1983))

The majority held that Petitionersrsquo terminationswhich were based solely on 5 USC sect 3328 werenonetheless terminations made for ldquoefficiency of theservicerdquo under 5 USC sect 7513(a) and were thereforesubject to the review procedures outlined by the CSRAPet App 7a-9a Noting the circuit split on thequestion the majority held that the CSRA is theexclusive remedy even when the employee brings onlyconstitutional claims for equitable relief Id at 11a-12a amp 12a n4 Therefore the district court lacked jurisdiction over Petitionersrsquo claims

The majority recognized however that its conclusion might be different if the CSRA provided no

12

remedy for Petitionersrsquo constitutional claims Id at 13a Though the majority did not dispute that theMSPB was powerless to strike down a statute asunconstitutional the majority reasoned that theFederal Circuit had the authority to do so on appealfrom the MSPB Id at 14a Therefore according to themajority the merits of Petitionersrsquo constitutionalclaims could be aired and decided at the Federal Circuit if not the MSPB

Petitioners had argued that their constitutionalclaims could not have been heard in the Federal Circuit because the Federal Circuit has itself repeatedly stated that its jurisdiction on appeal fromthe MSPB is coextensive with the jurisdiction of theMSPB which would not have had jurisdiction overPetitionersrsquo claims The majority disagreed reasoningthat the Federal Circuit had never addressed the question of its jurisdiction under these precisecircumstances and had posited that it would berequired to entertain constitutional claims seekingequitable relief under Webster v Doe 486 US 592 (1988) Pet App 14a (citing Riggin v Office of SenateFair Emprsquot Practices 61 F3d 1563 1570 (Fed Cir 1995) and Brockmann v Deprsquot of the Air Force 27 F3d 544 546-47 (Fed Cir 1994)) Even if the FederalCircuit would have held that it lacked jurisdiction toreview Petitionersrsquo constitutional claims the majorityexplained Petitioners could still have soughtadjudication of their claims on certiorari in this CourtId

Judge Stahl disagreed that the district court lackedjurisdiction but would have rejected Petitionersrsquo claimson the merits Id at 15a Judge Stahl sided with the

13

Third Ninth and DC Circuits and held that because the CSRA does not explicitly state that it prohibitsemployees from bringing constitutional challenges forequitable relief in district court it does not precludesuch actions Id at 23a-24a

Judge Stahl disagreed with the majority thatPetitionersrsquo constitutional claims could have been addressed in the Federal Circuit He explained that theFederal Circuitrsquos jurisdiction has never exceeded thescope of the MSPBrsquos jurisdiction on review of appealsfrom the MSPB even when the appellant assertedconstitutional claims beyond the MSPBrsquos jurisdictionId at 21a-22a (citing Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) (unpublished)) Judge Stahlnoted that in Brockmann v Department of the Air Force relied on by the majority the Federal Circuithypothesized about the possibility of reviewingconstitutional claims but did not actually state that itwould or could do so Id (discussing Brockmann 27 F3d at 546-47) Therefore Judge Stahl reasoned thebetter reading of the Federal Circuitrsquos decisions wasthat it would not have had jurisdiction and the CSRAprocess would not have provided any review ofPetitionersrsquo constitutional claims Id at 22a

14

REASONS FOR GRANTING THE WRIT I This Court Should Resolve the Deep and Enduring

Circuit Split on the Question Whether the CivilService Reform Act Impliedly Precludes FederalDistrict Courts From Granting Equitable Relief onthe Constitutional Claims of Federal Employees As the First Circuit acknowledged this case raises

a question on which there is a deep and longstandingcircuit split whether the CSRA impliedly precludesfederal district courts from exercising jurisdiction overthe constitutional claims of federal employees seekinginjunctive relief Id at 12a n4 24a-25a The Third and DC Circuits have held that the CSRA does not preclude district court jurisdiction over equitableconstitutional claims the First Second and Tenth Circuits have held that it does and four other circuits have recognized the split2

A The Circuit Split 1 Two circuitsmdashthe Third and DC Circuitsmdashhave

held that the CSRA does not preclude federal

2See Am Fedrsquon of Govrsquot Emps Local 1 v Stone 502 F3d 1027 1037-39 (9th Cir 2007) (discussing circuit split) Dotson v Griesa 398 F3d 156 179 (2d Cir 2005) cert denied 547 US 1191 (2006)(ldquoThe circuits are divided as to whether equitable relief such asreinstatement is available to federal employees notwithstandingtheir general agreement that the CSRA precludes Bivens claims for damagesrdquo) Hardison v Cohen 375 F3d 1262 1266 (11th Cir2004) (ldquoSeveral of our sister circuits have differed on whetherequitable relief is precluded by the presence of a statutoryremedial schemerdquo) Paige v Cisneros 91 F3d 40 44 (7th Cir 1996) (discussing circuit split) Mitchum v Hurt 73 F3d 30 34 (3d Cir 1995) (discussing circuit split) Bryant v Cheney 924 F2d 525 525 (4th Cir 1991) (discussing ldquotension among the circuitsrdquo)

15

employees from bringing claims for equitable relief forconstitutional injuries in federal district court Athirdmdashthe Ninth Circuitmdashhas expressly agreed withthe Third and DC Circuits and has held that at least in some circumstances federal employees may bringconstitutional claims for equitable relief in district court

In Hubbard v EPA 809 F2d 1 (DC Cir 1986) adetective with the DC Police Department alleged thathe had been denied a position with the EnvironmentalProtection Agency because of statements he made tothe press about an investigation into illegal drug useby members of Congress Under the CSRA Hubbardcould appeal the decisionmdashincluding his constitutionalclaims under the First Amendmentmdashto OPM and file a petition with the Office of Special Counsel Hubbardbrought a Bivens action in district court for damages aswell as a claim for injunctive relief Id at 1 3 8

Relying on this Courtrsquos decision in Bush v Lucas the DC Circuit held that Hubbardrsquos Bivens claim for damages was precluded by the CSRArsquos comprehensiveremedial scheme In Bush this Court rejected a federalemployeersquos Bivens claim for damages because theldquocomprehensive procedural and substantive provisionsrdquoof the CSRA are ldquospecial factors counselling hesitationin the absence of affirmative action by CongressrdquoBush 462 US at 377 (quoting Carlson v Green 446 US 14 18-19 (1980)) However the DC Circuit ruledthat the CSRA did not preclude Hubbardrsquos claim forequitable relief because to eliminate courtsrsquo jurisdictionover equitable relief for constitutional violationsCongress must do so explicitly and the CSRA did notcontain any provision explicitly eliminating federal

16

court jurisdiction The DC Circuit explained thedifference

The courtsrsquo power to impose equitable remediesagainst agencies is broader than its power toimpose legal remedies against individualsBivens actions are a recent judicial creation and as Carlson v Green made clear comparativelyeasy for Congress to preempt The courtsrsquo power to enjoin unconstitutional acts by the government however is inherent in the Constitution itself see Marbury v Madison 5 US (1 Cranch) 137 LEd 60 (1803) AlthoughCongress may limit this power see Ex Parte McCardle 74 US (7 Wall) 506 19 LEd 264(1869) CSRA did not explicitly limit ourjurisdiction to enjoin unconstitutional personnelactions by federal agencies

Hubbard 809 F2d at 11 n15 The Bivens portion of the Hubbard decision was

reheard and affirmed en banc in Spagnola v Mathis 859 F2d 223 (DC Cir 1988) Although the en banccourt did not rehear the question whether the CSRAalso precludes constitutional claims for equitable reliefit made clear that its decision with regard to theBivens claim left the equitable claim intact ldquo[T]imeand again this court has affirmed the right of civil servants to seek equitable relief against their supervisors and the agency itself in vindication oftheir constitutional rightsrdquo Id at 229-30

In Mitchum v Hurt 73 F3d at 36 the Third Circuit joined the DC Circuit in holding that theCSRA did not preclude district court jurisdiction over

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

iii

TABLE OF CONTENTS

QUESTION PRESENTED i

PARTIES ii

TABLE OF AUTHORITIES v

OPINIONS BELOW 1

JURISDICTION 1

STATUTES INVOLVED 1

STATEMENT OF THE CASE 2

A Factual Background 4

B Proceedings Before the Merit SystemsProtection Board and the District Court 8

C Proceedings Before the First Circuit 10

REASONS FOR GRANTING THE WRIT 14

I This Court Should Resolve the Deep andEnduring Circuit Split on the Question Whetherthe Civil Service Reform Act Impliedly PrecludesFederal District Courts From Granting EquitableRelief on the Constitutional Claims of Federal Employees 14

A The Circuit Split 14

iv

B This Courtrsquos Intervention Is Needed to Resolve the Split 21

II The Federal District Court Has Jurisdiction Over Petitionersrsquo Constitutional Claims for Equitable Relief 23

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief 24

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA 27

APPENDIX

Court of Appealsrsquo Decision 1a

District Courtrsquos Decision on Motion for Reconsideration 39a

District Courtrsquos Original Decision 65a

Merits Systems Protection Boardrsquos Decision onPetitioner Elginrsquos Claim 94a

CONCLUSION 32

Civil Service Reform Act 92 Stat 1111 et seq Excerpts 108a

v

TABLE OF AUTHORITIES

CASES

American Federation of Government EmployeesLocal 1 v Stone 502 F3d 1027 (9th Cir 2007) 14 17 18 19 23

Bell v Hood 327 US 678 (1946) 26

Bivens v Six Unknown Federal Narcotics Agents 403 US 388 (1971) 26

Bowen v Michigan Academy of Family Physicians 476 US 667 (1986) 27

Brockmann v Department of the Air Force 27 F3d 544 (Fed Cir 1994) 12 13 31 32

Brooks v Office of Personal Management 59 MSPR 207 (MSPB 1993) 30

Bryant v Cheney 924 F2d 525 (4th Cir 1991) 14 21 22

Bush v Lucas 462 US 367 (1983) 11 15 25

Carlson v Green 446 US 14 (1980) 15 25-26

vi

Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) 20

Chappell v Wallace 462 US 296 (1983) 25

Charner v OPM 2009 MSPB LEXIS 1296 (MSPB Mar 62009) 28-29

Clarke v OPM MSPB LEXIS 7101 (MSPB Dec 172007) 29

Daneshpayeh v Department of the Air Force 1994 WL 18964 (Fed Cir Jan 26 1994) 28

Dotson v Griesa 398 F3d 156 (2d Cir 2005)cert denied 547 US 1191 (2006) 14 20 22

Elgin v Department of the Treasury 2007 MSPB LEXIS 7502 (MSPB Nov 162007) 3

Hardison v Cohen 375 F3d 1262 (11th Cir 2004) 14 21 22

Hubbard v EPA 809 F2d 1 (DC Cir 1986) 15 16 26

Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) 13

vii

Johnson v Robison 415 US 361 (1974) 24 30

Lombardi v Small Business Administration 889 F2d 959 (10th Cir 1989) 19

Maddox v Merit Systems Protection Board 759 F2d 9 (Fed Cir 1985) 27

Manning v Merit Systems Protection Board 742 F2d 1424 (Fed Cir 1984) 31

Marbury v Madison 5 US (1 Cranch) 137 (1803) 16 26

Ex Parte McCardle 74 US (7 Wall) 506 (1869) 16

Mitchum v Hurt 73 F3d 30 (3d Cir 1995) 14 16 17 19 22 25

Osborn v Bank of the United States 22 US (9 Wheat) 738 (1824) 17 26

Paige v Cisneros 91 F3d 40 (7th Cir 1996) 14 21 22

Perez v Merit Systems Protection Board 931 F2d 853 (Fed Cir 1991) 31

Riggin v Office of Senate Fair EmploymentPractices 61 F3d 1563 (Fed Cir 1995) 12 31

viii

Rivera v Department of Veterans Affairs 2008 MSPB LEXIS 2056 (MSPB Mar 312008) 29

Rosano v Department of the Navy 699 F2d 1315 (Fed Cir 1983) 31

Saul v United States 928 F2d 829 (9th Cir 1991) 19

Schweiker v Chilicky 487 US 412 (1988) 25

Spagnola v Mathis 859 F2d 223 (DC Cir 1988) 16

Stanley v Gonzales 476 F3d 653 (9th Cir 2007) 18 19

Steel Co v Citizens for a Better Environment 523 US 83 (1998) 22

Travaglini v Department of Education 18 MSPR 127 (MSPB 1983)affrsquod as modified 23 MSPR 417 (MSPB1984) 28

United States v Fausto 484 US 439 (1988) 11 24

United States v Lee 106 US 196 (1882) 26

ix

Webster v Doe 486 US 592 (1988) 12 18 23 24 27

Whitfield v Department of the Interior 2008 MSPB LEXIS 6910 (MSPB Dec 232008) 29

Whitman v Department of Transportation 547 US 512 (2006) 23 26

Ex Parte Young 209 US 123 (1908) 17 26

STATUTES

Civil Service Reform Act 92 Stat 1111 et seq 2 4 8 11

5 USC sect 702 3 9

5 USC sect 3328 passim

5 USC sectsect 7511-7514 11

5 USC sect 7512(1) 8

5 USC sect 7513(a) 11 27

5 USC sect 7513(d) 8 27

5 USC sect 7701(a) 8

5 USC sect 7703(b)(1) 11

x

28 USC sect 1254 1

28 USC sect 1331 9 26

28 USC sect 2201 3 9

28 USC sect 2202 3 9

50 USC app sect 453 1 4

REGULATIONS AND PROCLAMATION

5 CFR sect 300706(c) 28 29

Proclamation No 4771

28 USC sect 1295(a)(9) 29

28 USC sect 1343 9

28 USC sect 1346 9

50 USC app sect 462(a) 4

50 USC app sect 465(a) 4

5 CFR sect 300707 5

45 Fed Reg 45247 (July 2 1980) 4

xi

OTHER SOURCE

Brief for Respondents Whitman v Department ofTransportation 547 US 512 (2006)(No 04-1131) 2005 WL 2738321 23

PETITION FOR A WRIT OF CERTIORARI Petitioners Michael B Elgin Aaron Lawson Henry

Tucker and Christon Colby respectfully petition for awrit of certiorari to review the judgment of the UnitedStates Court of Appeals for the First Circuit

OPINIONS BELOW The opinion of the United States Court of Appeals

for the First Circuit (Pet App 1a) is published at 641F3d 6 The district courtrsquos decision grantingPetitionersrsquo motion for partial summary judgment anddenying in part and granting in part Respondentsrsquomotion to dismiss (Pet App 65a) is published at 594 FSupp 2d 133 The district courtrsquos decision grantingRespondentsrsquo motion for reconsideration (Pet App39a) is published at 697 F Supp 2d 187

JURISDICTION The judgment of the court of appeals was entered

on April 8 2011 Pet App 2a This Court hasjurisdiction under 28 USC sect 1254(1)

STATUTES INVOLVED 5 USC sect 3328 bars men who fail to register with

the Selective Service from federal agency employmentIn full it provides

(a) An individualmdash (1) who was born after December 31 1959

and is or was required to register under section3 of the Military Selective Service Act (50 AppUSC 453) and

(2) who is not so registered or knowingly andwillfully did not so register before the requirement terminated or became inapplicable to the individual shall be ineligible for

2

appointment to a position in an Executive agency (b) The Office of Personnel Management inconsultation with the Director of the Selective Service System shall prescribe regulations tocarry out this section Such regulations shallinclude provisions prescribing procedures for theadjudication of determinations of whether afailure to register was knowing and willful Suchprocedures shall require that such a determination may not be made if the individualconcerned shows by a preponderance of theevidence that the failure to register was neitherknowing nor willful Such procedures mayprovide that determinations of eligibility underthe requirements of this section shall beadjudicated by the Executive agency making theappointment for which the eligibility is determined The Civil Service Reform Act 92 Stat 1111 et seq

outlines administrative procedures available to certainfederal employees for certain adverse employmentactions Relevant portions of the Civil Service ReformAct are reproduced in the Appendix at 108a

STATEMENT OF THE CASE Petitioners Michael B Elgin Aaron Lawson Henry

Tucker and Christon Colby are former federalemployees Each was terminated or constructivelyterminated from his federal employment under 5USC sect 3328 which imposes a lifetime bar on federalexecutive agency employment on men who do not

3

register with the Selective Service between the ages of18 and 26 First Am Compl para 2

Elgin appealed his termination to the MeritSystems Protection Board (MSPB) arguing that 5USC sect 3328 was a Bill of Attainder and that he wasdiscriminated against on the basis of sex The MSPBdismissed Elginrsquos appeal for lack of jurisdiction PetApp 95a 104a1

Elgin Lawson Tucker and Colby then brought thisaction in district court under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 againsttheir former employers the United States the USDepartment of the Treasury and the US Departmentof the Interior First Am Compl para 5 Petitionerschallenged 5 USC sect 3328 as a Bill of Attainder and asviolative of their constitutional rights to equalprotection on the basis of sex seeking injunctive anddeclaratory relief Id para 4 The district court initiallyheld that 5 USC sect 3328 was a Bill of Attainder butdid not violate Petitionersrsquo right to equal protectionand granted Petitionersrsquo partial motion for summaryjudgment Pet App 66a-67a On reconsideration thedistrict court addressed for the first time whether it had jurisdiction over Petitionersrsquo claims and held thatit did Id at 51a However the district court reversed its holding on the merits ruling that 5 USC sect 3328was not a Bill of Attainder Id at 63a-64a

1The unpublished decision of the MSPB is reproduced in theAppendix at 94a It is also available at Elgin v Department of theTreasury No PH-0752-08-0004-I-1 2007 MSPB LEXIS 7502 (MSPB Nov 16 2007)

4

A divided panel of the Court of Appeals for the FirstCircuit vacated the district courtrsquos decision and remanded for entry of a new judgment denyingPetitioners relief for lack of subject matter jurisdictionId at 15a Acknowledging a circuit split (id at 12a n4) the panel majority held that the district courtlacked jurisdiction to review Petitionersrsquo claimsbecause the Civil Service Reform Act (CSRA) 92 Stat1111 et seq impliedly precludes federal district courtsfrom granting equitable relief for constitutional injuries Id at 12a Because the CSRA does not explicitly preclude such relief the concurring judgewould have found that the district court had jurisdiction Id at 18a

A Factual Background The Military Selective Service Act requires all

males to register with the Selective Service betweenthe ages of 18 and 26 upon proclamation of thePresident 50 USC app sect 453 Since 1980 apresidential proclamation has required registrationand all persons are by statute ldquodeemedrdquo to knowabout the registration requirement Proclamation No4771 45 Fed Reg 45247 (July 2 1980) 50 USC appsect 465(a) Failure to register is a crime punishable bya fine of up to $10000 and up to five years in prisonMen can be prosecuted until their 31st birthdays Id sect 462(a) In addition in 1986 Congress enacted 5USC sect 3328 which further penalizes men whoknowingly and willfully fail to register by imposing alifetime bar on federal executive agency employmentRegulations provide for the termination of employeeswho fail to register and the Office of PersonnelManagement (OPM) is responsible for determining

5

whether the failure to register was knowing andwillful 5 CFR sect 300707

The Selective Service System has no record ofregistration for any of the Petitioners Three ofthemmdashElgin Tucker and Colbymdashdid not becomeaware of the registration requirement until after their26th birthdays when it was too late to register ThefourthmdashLawsonmdashknew about the requirement andbelieves that he registered but the Selective ServiceSystem does not have any record of his registrationElgin Lawson and Colby sought determinations thattheir failure to register was not knowing and willfulbut OPM denied their claims

Petitioners are former employees of federal agencies Elgin Lawson and Colby were terminatedsolely under 5 USC sect 3328 because they failed toregister Tucker resigned from one agency when hisfailure to register became apparent and his offer ofemployment from a second agency was withdrawnsolely because he failed to register

1 Michael B Elgin was first hired by the InternalRevenue Service (IRS) an agency of the TreasuryDepartment in 1991 as a low-level data transcriberPet App 95a Over the next sixteen years Elginconsistently received glowing evaluations and waspromoted to positions with increasing responsibilityFirst Am Compl para 31 As part of a routine backgroundinvestigation when he was offered a promotion in 2002the IRS learned that Elgin had not registered with theSelective Service and passed that information on toOPM Id parapara 32-34 Nevertheless Elgin was promotedId para 33

6

In 2003 OPM determined that Elgin was ineligiblefor federal employment under 5 USC sect 3328 becausehe had failed to register with the Selective ServiceElgin sought a waiver that would permit his employment arguing that his failure to register hadnot been knowing and willful because he had not beenaware of the registration requirement at age 18 hewas struggling to complete high school and support hisson while being virtually homeless Id parapara 29-30 OPMdenied his request for a waiver in 2006 BothMassachusetts Senators and the IRS asked OPM to reconsider explaining that Elgin was a valued IRSemployee whose termination would negatively affectthe agency and that Elginrsquos failure to register wasinadvertent Id para 34 OPM denied the Senatorsrsquo and IRSrsquos request Id para 35 Elgin was terminated on July 27 2007 Id para 36

2 Aaron Lawson has been a wildfire fighter since1997 first with the California Department of Forestryand later with the US Forest Service Id para 40 He isa specialist in directing helicopter crews fighting forestfires Id para 41 The Government has spent tens ofthousands of dollars training him to do this dangerouswork Id In 2003 the Bureau of Land Management adivision of the Interior Department in conjunctionwith the US Forest Service hired him as a wildfire fighter helicopter captain Id para 40 After he was hiredLawson learned that the Selective Service has no record of his registration Id Lawson believes that he completed the registration forms at his local post officearound the time of his 18th birthday Id para 39 TheBureau of Land Management and US Forest Servicerequested a waiver from OPM that would make

7

Lawson eligible for employment Id para 42 OPM deniedthe waiver Lawson was terminated Id

3 In 2007 Henry Tucker was a FinancialInstitution Specialist at the Federal Deposit InsuranceCorporation where he had been employed for 17 yearsId para 44 He had never been aware of the requirementto register with the Selective Service Tuckerrsquos motherleft him when he was 16 and he moved frequently as a teenager Id para 43 In December 2007 the FederalDeposit Insurance Corporation learned that Tuckerhad not registered with the Selective Service andreferred the matter to OPM Id para 45

Fearing that he would be fired Tucker resigned andapplied for a position with the National Institutes ofHealth which offered Tucker a job as a BudgetAnalyst Id para 46 It withdrew the offer however afterlearning that Tucker had not registered with theSelective Service Id

4 Christon Colby began working at the IRS in 2001as a temporary employee and was hired permanentlyin 2002 Id parapara 49-52 Colby received consistentlyexcellent performance reviews and was promoted topositions with increasing responsibility Id para 53 In2003 the IRS informed Colby that it had become awareof his failure to register with the Selective Service Id para 54 Colby sought a waiver from OPM on the basisthat his failure to register was not knowing and willfulColby explained that he had moved out of his parentsrsquohome at age 18 and was unaware of the registrationrequirement until he was too old to register Id parapara 47-48 55

8

In 2006 OPM declined to issue a waiver makinghim eligible for employment Id para 57 Colbyrsquossupervisor at the IRS appealed the determinationwithin OPM explaining that Colby was ldquoan extremelyvaluable and integralrdquo employee and noting that theIRS had invested $25000 in training Colby Id para 58OPM affirmed its decision not to issue Colby a waiverand Colby was terminated on August 3 2007 Id parapara 59-60

B Proceedings Before the Merit SystemsProtection Board and the District Court

The Civil Service Reform Act (CSRA) 92 Stat 1111 et seq provides that non-exempt federal employees(such as Petitioners had been) may challenge theirterminations before the Merit Systems ProtectionBoard (MSPB) under certain conditions 5 USCsectsect 7701(a) 7512(1) 7513(d) Shortly after beingterminated under 5 USC sect 3328 Petitioner Elginappealed the decision to the MSPB arguing that 5USC sect 3328 is a Bill of Attainder and that he wassubject to unconstitutional sex-based discriminationbecause the Selective Service registration requirementonly applies to men On November 16 2007 at theTreasury Departmentrsquos urging the MSPB dismissedElginrsquos appeal for lack of jurisdiction Pet App 100a-01a The MSPB explained that it lacked jurisdictionover appeals where employees were terminated underabsolute statutory prohibitions such as 5 USCsect 3328 Id The MSPB also held that it lacked authorityto rule on the constitutionality of a statute and notedthat to the extent it could review any constitutional ordiscrimination claims it did not have jurisdiction over

9

those claims without an explicit grant of jurisdictionwhich was absent here Id at 101a-02a

After Elginrsquos MSPB appeal was dismissed onDecember 28 2007 Elgin joined by Lawson Tuckerand Colby brought this action challenging theconstitutionality of 5 USC sect 3328 in the UnitedStates District Court for the District of Massachusetts against the United States of America the USDepartment of the Treasury and the US Departmentof the Interior (collectively the Government) First AmCompl para 1 Petitioners contended that 5 USC sect 3328is a Bill of Attainder prohibited by Article I Section 9Clause 3 of the Constitution because it legislativelyimposes punishmentmdashthe lifetime bar on federalemploymentmdashon a specific group of men for theirirreversible failure to register Petitioners also contended that because the Selective Service registration requirement and employment bar appliesto men and not women it unlawfully discriminatesunder the equal protection component of the FifthAmendment Id parapara 1 4 Petitioners sought declaratoryand injunctive relief including reinstatement Id para 4The claims were brought under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 andjurisdiction was premised on 28 USC sectsect 1331 1343and 1346 First Am Compl para 5 Petitioners amendedthe complaint in January 2008 to add a class actionclaim Id para 1

The Government moved to dismiss arguing thatPetitionersrsquo claims failed on the merits Pet App 66aThe Government did not at that time contest the district courtrsquos jurisdiction Petitioners responded by

10

opposing the motion to dismiss as to the equalprotection claim and seeking partial summaryjudgment as to liability on the Bill of Attainder claimAfter a hearing the district court granted Petitionersrsquomotion for partial summary judgment holding that 5USC sect 3328 was a Bill of Attainder and granted theGovernmentrsquos motion to dismiss in part holding thatthe Selective Service scheme did not violate Petitionersrsquo rights to equal protection Id at 66a-67a

Petitioners then filed a motion for class certification and sought a preliminary injunction reinstatingPetitioners The Government filed a motion for reconsideration of the district courtrsquos grant of summaryjudgment on the Bill of Attainder claim contendingboth that the claim failed on the merits and arguing forthe first time that the district court did not have subject matter jurisdiction over the claim because theCSRA precludes district court review of federalemployment decisions Id at 41a-42a The district court held that it did have jurisdiction but granted themotion for reconsideration because it determined on reexamination that 5 USC sect 3328 was not a Bill ofAttainder Id at 51a 63a-64a

C Proceedings Before the First Circuit Petitioners appealed the district courtrsquos decisions

dismissing the equal protection claim and granting themotion for reconsideration on the Bill of Attainder claim to the United States Court of Appeals for theFirst Circuit The panel agreed that Petitionersrsquo claimsshould be dismissed but was divided on the questionwhether the district court had jurisdiction overPetitionersrsquo constitutional claims for equitable reliefId at 15a

11

The majority agreed with the Government that theCSRA provides the exclusive remedy for the termination or constructive termination of federal employees even for facial constitutional challenges likethis one 92 Stat 1111 et seq (codified as amended invarious sections of 5 USC) The CSRA permits non-exempt federal employees such as Petitioners toappeal their terminations to the MSPB if they wereremoved ldquofor such cause as will promote the efficiencyof the servicerdquo 5 USC sect 7513(a) see generally idsectsect 7511-7514 Employees can then appeal the MSPBdecision to the United States Court of Appeals for theFederal Circuit Id sect 7703(b)(1) As the majority notedthis Court has held that though the CSRA does notexplicitly state it is the exclusive remedy itscomprehensiveness generally precludes ordinarydistrict court review of federal employee removals PetApp 6a (citing United States v Fausto 484 US 439 443-55 (1988) and Bush v Lucas 462 US 367 368 (1983))

The majority held that Petitionersrsquo terminationswhich were based solely on 5 USC sect 3328 werenonetheless terminations made for ldquoefficiency of theservicerdquo under 5 USC sect 7513(a) and were thereforesubject to the review procedures outlined by the CSRAPet App 7a-9a Noting the circuit split on thequestion the majority held that the CSRA is theexclusive remedy even when the employee brings onlyconstitutional claims for equitable relief Id at 11a-12a amp 12a n4 Therefore the district court lacked jurisdiction over Petitionersrsquo claims

The majority recognized however that its conclusion might be different if the CSRA provided no

12

remedy for Petitionersrsquo constitutional claims Id at 13a Though the majority did not dispute that theMSPB was powerless to strike down a statute asunconstitutional the majority reasoned that theFederal Circuit had the authority to do so on appealfrom the MSPB Id at 14a Therefore according to themajority the merits of Petitionersrsquo constitutionalclaims could be aired and decided at the Federal Circuit if not the MSPB

Petitioners had argued that their constitutionalclaims could not have been heard in the Federal Circuit because the Federal Circuit has itself repeatedly stated that its jurisdiction on appeal fromthe MSPB is coextensive with the jurisdiction of theMSPB which would not have had jurisdiction overPetitionersrsquo claims The majority disagreed reasoningthat the Federal Circuit had never addressed the question of its jurisdiction under these precisecircumstances and had posited that it would berequired to entertain constitutional claims seekingequitable relief under Webster v Doe 486 US 592 (1988) Pet App 14a (citing Riggin v Office of SenateFair Emprsquot Practices 61 F3d 1563 1570 (Fed Cir 1995) and Brockmann v Deprsquot of the Air Force 27 F3d 544 546-47 (Fed Cir 1994)) Even if the FederalCircuit would have held that it lacked jurisdiction toreview Petitionersrsquo constitutional claims the majorityexplained Petitioners could still have soughtadjudication of their claims on certiorari in this CourtId

Judge Stahl disagreed that the district court lackedjurisdiction but would have rejected Petitionersrsquo claimson the merits Id at 15a Judge Stahl sided with the

13

Third Ninth and DC Circuits and held that because the CSRA does not explicitly state that it prohibitsemployees from bringing constitutional challenges forequitable relief in district court it does not precludesuch actions Id at 23a-24a

Judge Stahl disagreed with the majority thatPetitionersrsquo constitutional claims could have been addressed in the Federal Circuit He explained that theFederal Circuitrsquos jurisdiction has never exceeded thescope of the MSPBrsquos jurisdiction on review of appealsfrom the MSPB even when the appellant assertedconstitutional claims beyond the MSPBrsquos jurisdictionId at 21a-22a (citing Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) (unpublished)) Judge Stahlnoted that in Brockmann v Department of the Air Force relied on by the majority the Federal Circuithypothesized about the possibility of reviewingconstitutional claims but did not actually state that itwould or could do so Id (discussing Brockmann 27 F3d at 546-47) Therefore Judge Stahl reasoned thebetter reading of the Federal Circuitrsquos decisions wasthat it would not have had jurisdiction and the CSRAprocess would not have provided any review ofPetitionersrsquo constitutional claims Id at 22a

14

REASONS FOR GRANTING THE WRIT I This Court Should Resolve the Deep and Enduring

Circuit Split on the Question Whether the CivilService Reform Act Impliedly Precludes FederalDistrict Courts From Granting Equitable Relief onthe Constitutional Claims of Federal Employees As the First Circuit acknowledged this case raises

a question on which there is a deep and longstandingcircuit split whether the CSRA impliedly precludesfederal district courts from exercising jurisdiction overthe constitutional claims of federal employees seekinginjunctive relief Id at 12a n4 24a-25a The Third and DC Circuits have held that the CSRA does not preclude district court jurisdiction over equitableconstitutional claims the First Second and Tenth Circuits have held that it does and four other circuits have recognized the split2

A The Circuit Split 1 Two circuitsmdashthe Third and DC Circuitsmdashhave

held that the CSRA does not preclude federal

2See Am Fedrsquon of Govrsquot Emps Local 1 v Stone 502 F3d 1027 1037-39 (9th Cir 2007) (discussing circuit split) Dotson v Griesa 398 F3d 156 179 (2d Cir 2005) cert denied 547 US 1191 (2006)(ldquoThe circuits are divided as to whether equitable relief such asreinstatement is available to federal employees notwithstandingtheir general agreement that the CSRA precludes Bivens claims for damagesrdquo) Hardison v Cohen 375 F3d 1262 1266 (11th Cir2004) (ldquoSeveral of our sister circuits have differed on whetherequitable relief is precluded by the presence of a statutoryremedial schemerdquo) Paige v Cisneros 91 F3d 40 44 (7th Cir 1996) (discussing circuit split) Mitchum v Hurt 73 F3d 30 34 (3d Cir 1995) (discussing circuit split) Bryant v Cheney 924 F2d 525 525 (4th Cir 1991) (discussing ldquotension among the circuitsrdquo)

15

employees from bringing claims for equitable relief forconstitutional injuries in federal district court Athirdmdashthe Ninth Circuitmdashhas expressly agreed withthe Third and DC Circuits and has held that at least in some circumstances federal employees may bringconstitutional claims for equitable relief in district court

In Hubbard v EPA 809 F2d 1 (DC Cir 1986) adetective with the DC Police Department alleged thathe had been denied a position with the EnvironmentalProtection Agency because of statements he made tothe press about an investigation into illegal drug useby members of Congress Under the CSRA Hubbardcould appeal the decisionmdashincluding his constitutionalclaims under the First Amendmentmdashto OPM and file a petition with the Office of Special Counsel Hubbardbrought a Bivens action in district court for damages aswell as a claim for injunctive relief Id at 1 3 8

Relying on this Courtrsquos decision in Bush v Lucas the DC Circuit held that Hubbardrsquos Bivens claim for damages was precluded by the CSRArsquos comprehensiveremedial scheme In Bush this Court rejected a federalemployeersquos Bivens claim for damages because theldquocomprehensive procedural and substantive provisionsrdquoof the CSRA are ldquospecial factors counselling hesitationin the absence of affirmative action by CongressrdquoBush 462 US at 377 (quoting Carlson v Green 446 US 14 18-19 (1980)) However the DC Circuit ruledthat the CSRA did not preclude Hubbardrsquos claim forequitable relief because to eliminate courtsrsquo jurisdictionover equitable relief for constitutional violationsCongress must do so explicitly and the CSRA did notcontain any provision explicitly eliminating federal

16

court jurisdiction The DC Circuit explained thedifference

The courtsrsquo power to impose equitable remediesagainst agencies is broader than its power toimpose legal remedies against individualsBivens actions are a recent judicial creation and as Carlson v Green made clear comparativelyeasy for Congress to preempt The courtsrsquo power to enjoin unconstitutional acts by the government however is inherent in the Constitution itself see Marbury v Madison 5 US (1 Cranch) 137 LEd 60 (1803) AlthoughCongress may limit this power see Ex Parte McCardle 74 US (7 Wall) 506 19 LEd 264(1869) CSRA did not explicitly limit ourjurisdiction to enjoin unconstitutional personnelactions by federal agencies

Hubbard 809 F2d at 11 n15 The Bivens portion of the Hubbard decision was

reheard and affirmed en banc in Spagnola v Mathis 859 F2d 223 (DC Cir 1988) Although the en banccourt did not rehear the question whether the CSRAalso precludes constitutional claims for equitable reliefit made clear that its decision with regard to theBivens claim left the equitable claim intact ldquo[T]imeand again this court has affirmed the right of civil servants to seek equitable relief against their supervisors and the agency itself in vindication oftheir constitutional rightsrdquo Id at 229-30

In Mitchum v Hurt 73 F3d at 36 the Third Circuit joined the DC Circuit in holding that theCSRA did not preclude district court jurisdiction over

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

iv

B This Courtrsquos Intervention Is Needed to Resolve the Split 21

II The Federal District Court Has Jurisdiction Over Petitionersrsquo Constitutional Claims for Equitable Relief 23

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief 24

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA 27

APPENDIX

Court of Appealsrsquo Decision 1a

District Courtrsquos Decision on Motion for Reconsideration 39a

District Courtrsquos Original Decision 65a

Merits Systems Protection Boardrsquos Decision onPetitioner Elginrsquos Claim 94a

CONCLUSION 32

Civil Service Reform Act 92 Stat 1111 et seq Excerpts 108a

v

TABLE OF AUTHORITIES

CASES

American Federation of Government EmployeesLocal 1 v Stone 502 F3d 1027 (9th Cir 2007) 14 17 18 19 23

Bell v Hood 327 US 678 (1946) 26

Bivens v Six Unknown Federal Narcotics Agents 403 US 388 (1971) 26

Bowen v Michigan Academy of Family Physicians 476 US 667 (1986) 27

Brockmann v Department of the Air Force 27 F3d 544 (Fed Cir 1994) 12 13 31 32

Brooks v Office of Personal Management 59 MSPR 207 (MSPB 1993) 30

Bryant v Cheney 924 F2d 525 (4th Cir 1991) 14 21 22

Bush v Lucas 462 US 367 (1983) 11 15 25

Carlson v Green 446 US 14 (1980) 15 25-26

vi

Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) 20

Chappell v Wallace 462 US 296 (1983) 25

Charner v OPM 2009 MSPB LEXIS 1296 (MSPB Mar 62009) 28-29

Clarke v OPM MSPB LEXIS 7101 (MSPB Dec 172007) 29

Daneshpayeh v Department of the Air Force 1994 WL 18964 (Fed Cir Jan 26 1994) 28

Dotson v Griesa 398 F3d 156 (2d Cir 2005)cert denied 547 US 1191 (2006) 14 20 22

Elgin v Department of the Treasury 2007 MSPB LEXIS 7502 (MSPB Nov 162007) 3

Hardison v Cohen 375 F3d 1262 (11th Cir 2004) 14 21 22

Hubbard v EPA 809 F2d 1 (DC Cir 1986) 15 16 26

Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) 13

vii

Johnson v Robison 415 US 361 (1974) 24 30

Lombardi v Small Business Administration 889 F2d 959 (10th Cir 1989) 19

Maddox v Merit Systems Protection Board 759 F2d 9 (Fed Cir 1985) 27

Manning v Merit Systems Protection Board 742 F2d 1424 (Fed Cir 1984) 31

Marbury v Madison 5 US (1 Cranch) 137 (1803) 16 26

Ex Parte McCardle 74 US (7 Wall) 506 (1869) 16

Mitchum v Hurt 73 F3d 30 (3d Cir 1995) 14 16 17 19 22 25

Osborn v Bank of the United States 22 US (9 Wheat) 738 (1824) 17 26

Paige v Cisneros 91 F3d 40 (7th Cir 1996) 14 21 22

Perez v Merit Systems Protection Board 931 F2d 853 (Fed Cir 1991) 31

Riggin v Office of Senate Fair EmploymentPractices 61 F3d 1563 (Fed Cir 1995) 12 31

viii

Rivera v Department of Veterans Affairs 2008 MSPB LEXIS 2056 (MSPB Mar 312008) 29

Rosano v Department of the Navy 699 F2d 1315 (Fed Cir 1983) 31

Saul v United States 928 F2d 829 (9th Cir 1991) 19

Schweiker v Chilicky 487 US 412 (1988) 25

Spagnola v Mathis 859 F2d 223 (DC Cir 1988) 16

Stanley v Gonzales 476 F3d 653 (9th Cir 2007) 18 19

Steel Co v Citizens for a Better Environment 523 US 83 (1998) 22

Travaglini v Department of Education 18 MSPR 127 (MSPB 1983)affrsquod as modified 23 MSPR 417 (MSPB1984) 28

United States v Fausto 484 US 439 (1988) 11 24

United States v Lee 106 US 196 (1882) 26

ix

Webster v Doe 486 US 592 (1988) 12 18 23 24 27

Whitfield v Department of the Interior 2008 MSPB LEXIS 6910 (MSPB Dec 232008) 29

Whitman v Department of Transportation 547 US 512 (2006) 23 26

Ex Parte Young 209 US 123 (1908) 17 26

STATUTES

Civil Service Reform Act 92 Stat 1111 et seq 2 4 8 11

5 USC sect 702 3 9

5 USC sect 3328 passim

5 USC sectsect 7511-7514 11

5 USC sect 7512(1) 8

5 USC sect 7513(a) 11 27

5 USC sect 7513(d) 8 27

5 USC sect 7701(a) 8

5 USC sect 7703(b)(1) 11

x

28 USC sect 1254 1

28 USC sect 1331 9 26

28 USC sect 2201 3 9

28 USC sect 2202 3 9

50 USC app sect 453 1 4

REGULATIONS AND PROCLAMATION

5 CFR sect 300706(c) 28 29

Proclamation No 4771

28 USC sect 1295(a)(9) 29

28 USC sect 1343 9

28 USC sect 1346 9

50 USC app sect 462(a) 4

50 USC app sect 465(a) 4

5 CFR sect 300707 5

45 Fed Reg 45247 (July 2 1980) 4

xi

OTHER SOURCE

Brief for Respondents Whitman v Department ofTransportation 547 US 512 (2006)(No 04-1131) 2005 WL 2738321 23

PETITION FOR A WRIT OF CERTIORARI Petitioners Michael B Elgin Aaron Lawson Henry

Tucker and Christon Colby respectfully petition for awrit of certiorari to review the judgment of the UnitedStates Court of Appeals for the First Circuit

OPINIONS BELOW The opinion of the United States Court of Appeals

for the First Circuit (Pet App 1a) is published at 641F3d 6 The district courtrsquos decision grantingPetitionersrsquo motion for partial summary judgment anddenying in part and granting in part Respondentsrsquomotion to dismiss (Pet App 65a) is published at 594 FSupp 2d 133 The district courtrsquos decision grantingRespondentsrsquo motion for reconsideration (Pet App39a) is published at 697 F Supp 2d 187

JURISDICTION The judgment of the court of appeals was entered

on April 8 2011 Pet App 2a This Court hasjurisdiction under 28 USC sect 1254(1)

STATUTES INVOLVED 5 USC sect 3328 bars men who fail to register with

the Selective Service from federal agency employmentIn full it provides

(a) An individualmdash (1) who was born after December 31 1959

and is or was required to register under section3 of the Military Selective Service Act (50 AppUSC 453) and

(2) who is not so registered or knowingly andwillfully did not so register before the requirement terminated or became inapplicable to the individual shall be ineligible for

2

appointment to a position in an Executive agency (b) The Office of Personnel Management inconsultation with the Director of the Selective Service System shall prescribe regulations tocarry out this section Such regulations shallinclude provisions prescribing procedures for theadjudication of determinations of whether afailure to register was knowing and willful Suchprocedures shall require that such a determination may not be made if the individualconcerned shows by a preponderance of theevidence that the failure to register was neitherknowing nor willful Such procedures mayprovide that determinations of eligibility underthe requirements of this section shall beadjudicated by the Executive agency making theappointment for which the eligibility is determined The Civil Service Reform Act 92 Stat 1111 et seq

outlines administrative procedures available to certainfederal employees for certain adverse employmentactions Relevant portions of the Civil Service ReformAct are reproduced in the Appendix at 108a

STATEMENT OF THE CASE Petitioners Michael B Elgin Aaron Lawson Henry

Tucker and Christon Colby are former federalemployees Each was terminated or constructivelyterminated from his federal employment under 5USC sect 3328 which imposes a lifetime bar on federalexecutive agency employment on men who do not

3

register with the Selective Service between the ages of18 and 26 First Am Compl para 2

Elgin appealed his termination to the MeritSystems Protection Board (MSPB) arguing that 5USC sect 3328 was a Bill of Attainder and that he wasdiscriminated against on the basis of sex The MSPBdismissed Elginrsquos appeal for lack of jurisdiction PetApp 95a 104a1

Elgin Lawson Tucker and Colby then brought thisaction in district court under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 againsttheir former employers the United States the USDepartment of the Treasury and the US Departmentof the Interior First Am Compl para 5 Petitionerschallenged 5 USC sect 3328 as a Bill of Attainder and asviolative of their constitutional rights to equalprotection on the basis of sex seeking injunctive anddeclaratory relief Id para 4 The district court initiallyheld that 5 USC sect 3328 was a Bill of Attainder butdid not violate Petitionersrsquo right to equal protectionand granted Petitionersrsquo partial motion for summaryjudgment Pet App 66a-67a On reconsideration thedistrict court addressed for the first time whether it had jurisdiction over Petitionersrsquo claims and held thatit did Id at 51a However the district court reversed its holding on the merits ruling that 5 USC sect 3328was not a Bill of Attainder Id at 63a-64a

1The unpublished decision of the MSPB is reproduced in theAppendix at 94a It is also available at Elgin v Department of theTreasury No PH-0752-08-0004-I-1 2007 MSPB LEXIS 7502 (MSPB Nov 16 2007)

4

A divided panel of the Court of Appeals for the FirstCircuit vacated the district courtrsquos decision and remanded for entry of a new judgment denyingPetitioners relief for lack of subject matter jurisdictionId at 15a Acknowledging a circuit split (id at 12a n4) the panel majority held that the district courtlacked jurisdiction to review Petitionersrsquo claimsbecause the Civil Service Reform Act (CSRA) 92 Stat1111 et seq impliedly precludes federal district courtsfrom granting equitable relief for constitutional injuries Id at 12a Because the CSRA does not explicitly preclude such relief the concurring judgewould have found that the district court had jurisdiction Id at 18a

A Factual Background The Military Selective Service Act requires all

males to register with the Selective Service betweenthe ages of 18 and 26 upon proclamation of thePresident 50 USC app sect 453 Since 1980 apresidential proclamation has required registrationand all persons are by statute ldquodeemedrdquo to knowabout the registration requirement Proclamation No4771 45 Fed Reg 45247 (July 2 1980) 50 USC appsect 465(a) Failure to register is a crime punishable bya fine of up to $10000 and up to five years in prisonMen can be prosecuted until their 31st birthdays Id sect 462(a) In addition in 1986 Congress enacted 5USC sect 3328 which further penalizes men whoknowingly and willfully fail to register by imposing alifetime bar on federal executive agency employmentRegulations provide for the termination of employeeswho fail to register and the Office of PersonnelManagement (OPM) is responsible for determining

5

whether the failure to register was knowing andwillful 5 CFR sect 300707

The Selective Service System has no record ofregistration for any of the Petitioners Three ofthemmdashElgin Tucker and Colbymdashdid not becomeaware of the registration requirement until after their26th birthdays when it was too late to register ThefourthmdashLawsonmdashknew about the requirement andbelieves that he registered but the Selective ServiceSystem does not have any record of his registrationElgin Lawson and Colby sought determinations thattheir failure to register was not knowing and willfulbut OPM denied their claims

Petitioners are former employees of federal agencies Elgin Lawson and Colby were terminatedsolely under 5 USC sect 3328 because they failed toregister Tucker resigned from one agency when hisfailure to register became apparent and his offer ofemployment from a second agency was withdrawnsolely because he failed to register

1 Michael B Elgin was first hired by the InternalRevenue Service (IRS) an agency of the TreasuryDepartment in 1991 as a low-level data transcriberPet App 95a Over the next sixteen years Elginconsistently received glowing evaluations and waspromoted to positions with increasing responsibilityFirst Am Compl para 31 As part of a routine backgroundinvestigation when he was offered a promotion in 2002the IRS learned that Elgin had not registered with theSelective Service and passed that information on toOPM Id parapara 32-34 Nevertheless Elgin was promotedId para 33

6

In 2003 OPM determined that Elgin was ineligiblefor federal employment under 5 USC sect 3328 becausehe had failed to register with the Selective ServiceElgin sought a waiver that would permit his employment arguing that his failure to register hadnot been knowing and willful because he had not beenaware of the registration requirement at age 18 hewas struggling to complete high school and support hisson while being virtually homeless Id parapara 29-30 OPMdenied his request for a waiver in 2006 BothMassachusetts Senators and the IRS asked OPM to reconsider explaining that Elgin was a valued IRSemployee whose termination would negatively affectthe agency and that Elginrsquos failure to register wasinadvertent Id para 34 OPM denied the Senatorsrsquo and IRSrsquos request Id para 35 Elgin was terminated on July 27 2007 Id para 36

2 Aaron Lawson has been a wildfire fighter since1997 first with the California Department of Forestryand later with the US Forest Service Id para 40 He isa specialist in directing helicopter crews fighting forestfires Id para 41 The Government has spent tens ofthousands of dollars training him to do this dangerouswork Id In 2003 the Bureau of Land Management adivision of the Interior Department in conjunctionwith the US Forest Service hired him as a wildfire fighter helicopter captain Id para 40 After he was hiredLawson learned that the Selective Service has no record of his registration Id Lawson believes that he completed the registration forms at his local post officearound the time of his 18th birthday Id para 39 TheBureau of Land Management and US Forest Servicerequested a waiver from OPM that would make

7

Lawson eligible for employment Id para 42 OPM deniedthe waiver Lawson was terminated Id

3 In 2007 Henry Tucker was a FinancialInstitution Specialist at the Federal Deposit InsuranceCorporation where he had been employed for 17 yearsId para 44 He had never been aware of the requirementto register with the Selective Service Tuckerrsquos motherleft him when he was 16 and he moved frequently as a teenager Id para 43 In December 2007 the FederalDeposit Insurance Corporation learned that Tuckerhad not registered with the Selective Service andreferred the matter to OPM Id para 45

Fearing that he would be fired Tucker resigned andapplied for a position with the National Institutes ofHealth which offered Tucker a job as a BudgetAnalyst Id para 46 It withdrew the offer however afterlearning that Tucker had not registered with theSelective Service Id

4 Christon Colby began working at the IRS in 2001as a temporary employee and was hired permanentlyin 2002 Id parapara 49-52 Colby received consistentlyexcellent performance reviews and was promoted topositions with increasing responsibility Id para 53 In2003 the IRS informed Colby that it had become awareof his failure to register with the Selective Service Id para 54 Colby sought a waiver from OPM on the basisthat his failure to register was not knowing and willfulColby explained that he had moved out of his parentsrsquohome at age 18 and was unaware of the registrationrequirement until he was too old to register Id parapara 47-48 55

8

In 2006 OPM declined to issue a waiver makinghim eligible for employment Id para 57 Colbyrsquossupervisor at the IRS appealed the determinationwithin OPM explaining that Colby was ldquoan extremelyvaluable and integralrdquo employee and noting that theIRS had invested $25000 in training Colby Id para 58OPM affirmed its decision not to issue Colby a waiverand Colby was terminated on August 3 2007 Id parapara 59-60

B Proceedings Before the Merit SystemsProtection Board and the District Court

The Civil Service Reform Act (CSRA) 92 Stat 1111 et seq provides that non-exempt federal employees(such as Petitioners had been) may challenge theirterminations before the Merit Systems ProtectionBoard (MSPB) under certain conditions 5 USCsectsect 7701(a) 7512(1) 7513(d) Shortly after beingterminated under 5 USC sect 3328 Petitioner Elginappealed the decision to the MSPB arguing that 5USC sect 3328 is a Bill of Attainder and that he wassubject to unconstitutional sex-based discriminationbecause the Selective Service registration requirementonly applies to men On November 16 2007 at theTreasury Departmentrsquos urging the MSPB dismissedElginrsquos appeal for lack of jurisdiction Pet App 100a-01a The MSPB explained that it lacked jurisdictionover appeals where employees were terminated underabsolute statutory prohibitions such as 5 USCsect 3328 Id The MSPB also held that it lacked authorityto rule on the constitutionality of a statute and notedthat to the extent it could review any constitutional ordiscrimination claims it did not have jurisdiction over

9

those claims without an explicit grant of jurisdictionwhich was absent here Id at 101a-02a

After Elginrsquos MSPB appeal was dismissed onDecember 28 2007 Elgin joined by Lawson Tuckerand Colby brought this action challenging theconstitutionality of 5 USC sect 3328 in the UnitedStates District Court for the District of Massachusetts against the United States of America the USDepartment of the Treasury and the US Departmentof the Interior (collectively the Government) First AmCompl para 1 Petitioners contended that 5 USC sect 3328is a Bill of Attainder prohibited by Article I Section 9Clause 3 of the Constitution because it legislativelyimposes punishmentmdashthe lifetime bar on federalemploymentmdashon a specific group of men for theirirreversible failure to register Petitioners also contended that because the Selective Service registration requirement and employment bar appliesto men and not women it unlawfully discriminatesunder the equal protection component of the FifthAmendment Id parapara 1 4 Petitioners sought declaratoryand injunctive relief including reinstatement Id para 4The claims were brought under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 andjurisdiction was premised on 28 USC sectsect 1331 1343and 1346 First Am Compl para 5 Petitioners amendedthe complaint in January 2008 to add a class actionclaim Id para 1

The Government moved to dismiss arguing thatPetitionersrsquo claims failed on the merits Pet App 66aThe Government did not at that time contest the district courtrsquos jurisdiction Petitioners responded by

10

opposing the motion to dismiss as to the equalprotection claim and seeking partial summaryjudgment as to liability on the Bill of Attainder claimAfter a hearing the district court granted Petitionersrsquomotion for partial summary judgment holding that 5USC sect 3328 was a Bill of Attainder and granted theGovernmentrsquos motion to dismiss in part holding thatthe Selective Service scheme did not violate Petitionersrsquo rights to equal protection Id at 66a-67a

Petitioners then filed a motion for class certification and sought a preliminary injunction reinstatingPetitioners The Government filed a motion for reconsideration of the district courtrsquos grant of summaryjudgment on the Bill of Attainder claim contendingboth that the claim failed on the merits and arguing forthe first time that the district court did not have subject matter jurisdiction over the claim because theCSRA precludes district court review of federalemployment decisions Id at 41a-42a The district court held that it did have jurisdiction but granted themotion for reconsideration because it determined on reexamination that 5 USC sect 3328 was not a Bill ofAttainder Id at 51a 63a-64a

C Proceedings Before the First Circuit Petitioners appealed the district courtrsquos decisions

dismissing the equal protection claim and granting themotion for reconsideration on the Bill of Attainder claim to the United States Court of Appeals for theFirst Circuit The panel agreed that Petitionersrsquo claimsshould be dismissed but was divided on the questionwhether the district court had jurisdiction overPetitionersrsquo constitutional claims for equitable reliefId at 15a

11

The majority agreed with the Government that theCSRA provides the exclusive remedy for the termination or constructive termination of federal employees even for facial constitutional challenges likethis one 92 Stat 1111 et seq (codified as amended invarious sections of 5 USC) The CSRA permits non-exempt federal employees such as Petitioners toappeal their terminations to the MSPB if they wereremoved ldquofor such cause as will promote the efficiencyof the servicerdquo 5 USC sect 7513(a) see generally idsectsect 7511-7514 Employees can then appeal the MSPBdecision to the United States Court of Appeals for theFederal Circuit Id sect 7703(b)(1) As the majority notedthis Court has held that though the CSRA does notexplicitly state it is the exclusive remedy itscomprehensiveness generally precludes ordinarydistrict court review of federal employee removals PetApp 6a (citing United States v Fausto 484 US 439 443-55 (1988) and Bush v Lucas 462 US 367 368 (1983))

The majority held that Petitionersrsquo terminationswhich were based solely on 5 USC sect 3328 werenonetheless terminations made for ldquoefficiency of theservicerdquo under 5 USC sect 7513(a) and were thereforesubject to the review procedures outlined by the CSRAPet App 7a-9a Noting the circuit split on thequestion the majority held that the CSRA is theexclusive remedy even when the employee brings onlyconstitutional claims for equitable relief Id at 11a-12a amp 12a n4 Therefore the district court lacked jurisdiction over Petitionersrsquo claims

The majority recognized however that its conclusion might be different if the CSRA provided no

12

remedy for Petitionersrsquo constitutional claims Id at 13a Though the majority did not dispute that theMSPB was powerless to strike down a statute asunconstitutional the majority reasoned that theFederal Circuit had the authority to do so on appealfrom the MSPB Id at 14a Therefore according to themajority the merits of Petitionersrsquo constitutionalclaims could be aired and decided at the Federal Circuit if not the MSPB

Petitioners had argued that their constitutionalclaims could not have been heard in the Federal Circuit because the Federal Circuit has itself repeatedly stated that its jurisdiction on appeal fromthe MSPB is coextensive with the jurisdiction of theMSPB which would not have had jurisdiction overPetitionersrsquo claims The majority disagreed reasoningthat the Federal Circuit had never addressed the question of its jurisdiction under these precisecircumstances and had posited that it would berequired to entertain constitutional claims seekingequitable relief under Webster v Doe 486 US 592 (1988) Pet App 14a (citing Riggin v Office of SenateFair Emprsquot Practices 61 F3d 1563 1570 (Fed Cir 1995) and Brockmann v Deprsquot of the Air Force 27 F3d 544 546-47 (Fed Cir 1994)) Even if the FederalCircuit would have held that it lacked jurisdiction toreview Petitionersrsquo constitutional claims the majorityexplained Petitioners could still have soughtadjudication of their claims on certiorari in this CourtId

Judge Stahl disagreed that the district court lackedjurisdiction but would have rejected Petitionersrsquo claimson the merits Id at 15a Judge Stahl sided with the

13

Third Ninth and DC Circuits and held that because the CSRA does not explicitly state that it prohibitsemployees from bringing constitutional challenges forequitable relief in district court it does not precludesuch actions Id at 23a-24a

Judge Stahl disagreed with the majority thatPetitionersrsquo constitutional claims could have been addressed in the Federal Circuit He explained that theFederal Circuitrsquos jurisdiction has never exceeded thescope of the MSPBrsquos jurisdiction on review of appealsfrom the MSPB even when the appellant assertedconstitutional claims beyond the MSPBrsquos jurisdictionId at 21a-22a (citing Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) (unpublished)) Judge Stahlnoted that in Brockmann v Department of the Air Force relied on by the majority the Federal Circuithypothesized about the possibility of reviewingconstitutional claims but did not actually state that itwould or could do so Id (discussing Brockmann 27 F3d at 546-47) Therefore Judge Stahl reasoned thebetter reading of the Federal Circuitrsquos decisions wasthat it would not have had jurisdiction and the CSRAprocess would not have provided any review ofPetitionersrsquo constitutional claims Id at 22a

14

REASONS FOR GRANTING THE WRIT I This Court Should Resolve the Deep and Enduring

Circuit Split on the Question Whether the CivilService Reform Act Impliedly Precludes FederalDistrict Courts From Granting Equitable Relief onthe Constitutional Claims of Federal Employees As the First Circuit acknowledged this case raises

a question on which there is a deep and longstandingcircuit split whether the CSRA impliedly precludesfederal district courts from exercising jurisdiction overthe constitutional claims of federal employees seekinginjunctive relief Id at 12a n4 24a-25a The Third and DC Circuits have held that the CSRA does not preclude district court jurisdiction over equitableconstitutional claims the First Second and Tenth Circuits have held that it does and four other circuits have recognized the split2

A The Circuit Split 1 Two circuitsmdashthe Third and DC Circuitsmdashhave

held that the CSRA does not preclude federal

2See Am Fedrsquon of Govrsquot Emps Local 1 v Stone 502 F3d 1027 1037-39 (9th Cir 2007) (discussing circuit split) Dotson v Griesa 398 F3d 156 179 (2d Cir 2005) cert denied 547 US 1191 (2006)(ldquoThe circuits are divided as to whether equitable relief such asreinstatement is available to federal employees notwithstandingtheir general agreement that the CSRA precludes Bivens claims for damagesrdquo) Hardison v Cohen 375 F3d 1262 1266 (11th Cir2004) (ldquoSeveral of our sister circuits have differed on whetherequitable relief is precluded by the presence of a statutoryremedial schemerdquo) Paige v Cisneros 91 F3d 40 44 (7th Cir 1996) (discussing circuit split) Mitchum v Hurt 73 F3d 30 34 (3d Cir 1995) (discussing circuit split) Bryant v Cheney 924 F2d 525 525 (4th Cir 1991) (discussing ldquotension among the circuitsrdquo)

15

employees from bringing claims for equitable relief forconstitutional injuries in federal district court Athirdmdashthe Ninth Circuitmdashhas expressly agreed withthe Third and DC Circuits and has held that at least in some circumstances federal employees may bringconstitutional claims for equitable relief in district court

In Hubbard v EPA 809 F2d 1 (DC Cir 1986) adetective with the DC Police Department alleged thathe had been denied a position with the EnvironmentalProtection Agency because of statements he made tothe press about an investigation into illegal drug useby members of Congress Under the CSRA Hubbardcould appeal the decisionmdashincluding his constitutionalclaims under the First Amendmentmdashto OPM and file a petition with the Office of Special Counsel Hubbardbrought a Bivens action in district court for damages aswell as a claim for injunctive relief Id at 1 3 8

Relying on this Courtrsquos decision in Bush v Lucas the DC Circuit held that Hubbardrsquos Bivens claim for damages was precluded by the CSRArsquos comprehensiveremedial scheme In Bush this Court rejected a federalemployeersquos Bivens claim for damages because theldquocomprehensive procedural and substantive provisionsrdquoof the CSRA are ldquospecial factors counselling hesitationin the absence of affirmative action by CongressrdquoBush 462 US at 377 (quoting Carlson v Green 446 US 14 18-19 (1980)) However the DC Circuit ruledthat the CSRA did not preclude Hubbardrsquos claim forequitable relief because to eliminate courtsrsquo jurisdictionover equitable relief for constitutional violationsCongress must do so explicitly and the CSRA did notcontain any provision explicitly eliminating federal

16

court jurisdiction The DC Circuit explained thedifference

The courtsrsquo power to impose equitable remediesagainst agencies is broader than its power toimpose legal remedies against individualsBivens actions are a recent judicial creation and as Carlson v Green made clear comparativelyeasy for Congress to preempt The courtsrsquo power to enjoin unconstitutional acts by the government however is inherent in the Constitution itself see Marbury v Madison 5 US (1 Cranch) 137 LEd 60 (1803) AlthoughCongress may limit this power see Ex Parte McCardle 74 US (7 Wall) 506 19 LEd 264(1869) CSRA did not explicitly limit ourjurisdiction to enjoin unconstitutional personnelactions by federal agencies

Hubbard 809 F2d at 11 n15 The Bivens portion of the Hubbard decision was

reheard and affirmed en banc in Spagnola v Mathis 859 F2d 223 (DC Cir 1988) Although the en banccourt did not rehear the question whether the CSRAalso precludes constitutional claims for equitable reliefit made clear that its decision with regard to theBivens claim left the equitable claim intact ldquo[T]imeand again this court has affirmed the right of civil servants to seek equitable relief against their supervisors and the agency itself in vindication oftheir constitutional rightsrdquo Id at 229-30

In Mitchum v Hurt 73 F3d at 36 the Third Circuit joined the DC Circuit in holding that theCSRA did not preclude district court jurisdiction over

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

v

TABLE OF AUTHORITIES

CASES

American Federation of Government EmployeesLocal 1 v Stone 502 F3d 1027 (9th Cir 2007) 14 17 18 19 23

Bell v Hood 327 US 678 (1946) 26

Bivens v Six Unknown Federal Narcotics Agents 403 US 388 (1971) 26

Bowen v Michigan Academy of Family Physicians 476 US 667 (1986) 27

Brockmann v Department of the Air Force 27 F3d 544 (Fed Cir 1994) 12 13 31 32

Brooks v Office of Personal Management 59 MSPR 207 (MSPB 1993) 30

Bryant v Cheney 924 F2d 525 (4th Cir 1991) 14 21 22

Bush v Lucas 462 US 367 (1983) 11 15 25

Carlson v Green 446 US 14 (1980) 15 25-26

vi

Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) 20

Chappell v Wallace 462 US 296 (1983) 25

Charner v OPM 2009 MSPB LEXIS 1296 (MSPB Mar 62009) 28-29

Clarke v OPM MSPB LEXIS 7101 (MSPB Dec 172007) 29

Daneshpayeh v Department of the Air Force 1994 WL 18964 (Fed Cir Jan 26 1994) 28

Dotson v Griesa 398 F3d 156 (2d Cir 2005)cert denied 547 US 1191 (2006) 14 20 22

Elgin v Department of the Treasury 2007 MSPB LEXIS 7502 (MSPB Nov 162007) 3

Hardison v Cohen 375 F3d 1262 (11th Cir 2004) 14 21 22

Hubbard v EPA 809 F2d 1 (DC Cir 1986) 15 16 26

Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) 13

vii

Johnson v Robison 415 US 361 (1974) 24 30

Lombardi v Small Business Administration 889 F2d 959 (10th Cir 1989) 19

Maddox v Merit Systems Protection Board 759 F2d 9 (Fed Cir 1985) 27

Manning v Merit Systems Protection Board 742 F2d 1424 (Fed Cir 1984) 31

Marbury v Madison 5 US (1 Cranch) 137 (1803) 16 26

Ex Parte McCardle 74 US (7 Wall) 506 (1869) 16

Mitchum v Hurt 73 F3d 30 (3d Cir 1995) 14 16 17 19 22 25

Osborn v Bank of the United States 22 US (9 Wheat) 738 (1824) 17 26

Paige v Cisneros 91 F3d 40 (7th Cir 1996) 14 21 22

Perez v Merit Systems Protection Board 931 F2d 853 (Fed Cir 1991) 31

Riggin v Office of Senate Fair EmploymentPractices 61 F3d 1563 (Fed Cir 1995) 12 31

viii

Rivera v Department of Veterans Affairs 2008 MSPB LEXIS 2056 (MSPB Mar 312008) 29

Rosano v Department of the Navy 699 F2d 1315 (Fed Cir 1983) 31

Saul v United States 928 F2d 829 (9th Cir 1991) 19

Schweiker v Chilicky 487 US 412 (1988) 25

Spagnola v Mathis 859 F2d 223 (DC Cir 1988) 16

Stanley v Gonzales 476 F3d 653 (9th Cir 2007) 18 19

Steel Co v Citizens for a Better Environment 523 US 83 (1998) 22

Travaglini v Department of Education 18 MSPR 127 (MSPB 1983)affrsquod as modified 23 MSPR 417 (MSPB1984) 28

United States v Fausto 484 US 439 (1988) 11 24

United States v Lee 106 US 196 (1882) 26

ix

Webster v Doe 486 US 592 (1988) 12 18 23 24 27

Whitfield v Department of the Interior 2008 MSPB LEXIS 6910 (MSPB Dec 232008) 29

Whitman v Department of Transportation 547 US 512 (2006) 23 26

Ex Parte Young 209 US 123 (1908) 17 26

STATUTES

Civil Service Reform Act 92 Stat 1111 et seq 2 4 8 11

5 USC sect 702 3 9

5 USC sect 3328 passim

5 USC sectsect 7511-7514 11

5 USC sect 7512(1) 8

5 USC sect 7513(a) 11 27

5 USC sect 7513(d) 8 27

5 USC sect 7701(a) 8

5 USC sect 7703(b)(1) 11

x

28 USC sect 1254 1

28 USC sect 1331 9 26

28 USC sect 2201 3 9

28 USC sect 2202 3 9

50 USC app sect 453 1 4

REGULATIONS AND PROCLAMATION

5 CFR sect 300706(c) 28 29

Proclamation No 4771

28 USC sect 1295(a)(9) 29

28 USC sect 1343 9

28 USC sect 1346 9

50 USC app sect 462(a) 4

50 USC app sect 465(a) 4

5 CFR sect 300707 5

45 Fed Reg 45247 (July 2 1980) 4

xi

OTHER SOURCE

Brief for Respondents Whitman v Department ofTransportation 547 US 512 (2006)(No 04-1131) 2005 WL 2738321 23

PETITION FOR A WRIT OF CERTIORARI Petitioners Michael B Elgin Aaron Lawson Henry

Tucker and Christon Colby respectfully petition for awrit of certiorari to review the judgment of the UnitedStates Court of Appeals for the First Circuit

OPINIONS BELOW The opinion of the United States Court of Appeals

for the First Circuit (Pet App 1a) is published at 641F3d 6 The district courtrsquos decision grantingPetitionersrsquo motion for partial summary judgment anddenying in part and granting in part Respondentsrsquomotion to dismiss (Pet App 65a) is published at 594 FSupp 2d 133 The district courtrsquos decision grantingRespondentsrsquo motion for reconsideration (Pet App39a) is published at 697 F Supp 2d 187

JURISDICTION The judgment of the court of appeals was entered

on April 8 2011 Pet App 2a This Court hasjurisdiction under 28 USC sect 1254(1)

STATUTES INVOLVED 5 USC sect 3328 bars men who fail to register with

the Selective Service from federal agency employmentIn full it provides

(a) An individualmdash (1) who was born after December 31 1959

and is or was required to register under section3 of the Military Selective Service Act (50 AppUSC 453) and

(2) who is not so registered or knowingly andwillfully did not so register before the requirement terminated or became inapplicable to the individual shall be ineligible for

2

appointment to a position in an Executive agency (b) The Office of Personnel Management inconsultation with the Director of the Selective Service System shall prescribe regulations tocarry out this section Such regulations shallinclude provisions prescribing procedures for theadjudication of determinations of whether afailure to register was knowing and willful Suchprocedures shall require that such a determination may not be made if the individualconcerned shows by a preponderance of theevidence that the failure to register was neitherknowing nor willful Such procedures mayprovide that determinations of eligibility underthe requirements of this section shall beadjudicated by the Executive agency making theappointment for which the eligibility is determined The Civil Service Reform Act 92 Stat 1111 et seq

outlines administrative procedures available to certainfederal employees for certain adverse employmentactions Relevant portions of the Civil Service ReformAct are reproduced in the Appendix at 108a

STATEMENT OF THE CASE Petitioners Michael B Elgin Aaron Lawson Henry

Tucker and Christon Colby are former federalemployees Each was terminated or constructivelyterminated from his federal employment under 5USC sect 3328 which imposes a lifetime bar on federalexecutive agency employment on men who do not

3

register with the Selective Service between the ages of18 and 26 First Am Compl para 2

Elgin appealed his termination to the MeritSystems Protection Board (MSPB) arguing that 5USC sect 3328 was a Bill of Attainder and that he wasdiscriminated against on the basis of sex The MSPBdismissed Elginrsquos appeal for lack of jurisdiction PetApp 95a 104a1

Elgin Lawson Tucker and Colby then brought thisaction in district court under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 againsttheir former employers the United States the USDepartment of the Treasury and the US Departmentof the Interior First Am Compl para 5 Petitionerschallenged 5 USC sect 3328 as a Bill of Attainder and asviolative of their constitutional rights to equalprotection on the basis of sex seeking injunctive anddeclaratory relief Id para 4 The district court initiallyheld that 5 USC sect 3328 was a Bill of Attainder butdid not violate Petitionersrsquo right to equal protectionand granted Petitionersrsquo partial motion for summaryjudgment Pet App 66a-67a On reconsideration thedistrict court addressed for the first time whether it had jurisdiction over Petitionersrsquo claims and held thatit did Id at 51a However the district court reversed its holding on the merits ruling that 5 USC sect 3328was not a Bill of Attainder Id at 63a-64a

1The unpublished decision of the MSPB is reproduced in theAppendix at 94a It is also available at Elgin v Department of theTreasury No PH-0752-08-0004-I-1 2007 MSPB LEXIS 7502 (MSPB Nov 16 2007)

4

A divided panel of the Court of Appeals for the FirstCircuit vacated the district courtrsquos decision and remanded for entry of a new judgment denyingPetitioners relief for lack of subject matter jurisdictionId at 15a Acknowledging a circuit split (id at 12a n4) the panel majority held that the district courtlacked jurisdiction to review Petitionersrsquo claimsbecause the Civil Service Reform Act (CSRA) 92 Stat1111 et seq impliedly precludes federal district courtsfrom granting equitable relief for constitutional injuries Id at 12a Because the CSRA does not explicitly preclude such relief the concurring judgewould have found that the district court had jurisdiction Id at 18a

A Factual Background The Military Selective Service Act requires all

males to register with the Selective Service betweenthe ages of 18 and 26 upon proclamation of thePresident 50 USC app sect 453 Since 1980 apresidential proclamation has required registrationand all persons are by statute ldquodeemedrdquo to knowabout the registration requirement Proclamation No4771 45 Fed Reg 45247 (July 2 1980) 50 USC appsect 465(a) Failure to register is a crime punishable bya fine of up to $10000 and up to five years in prisonMen can be prosecuted until their 31st birthdays Id sect 462(a) In addition in 1986 Congress enacted 5USC sect 3328 which further penalizes men whoknowingly and willfully fail to register by imposing alifetime bar on federal executive agency employmentRegulations provide for the termination of employeeswho fail to register and the Office of PersonnelManagement (OPM) is responsible for determining

5

whether the failure to register was knowing andwillful 5 CFR sect 300707

The Selective Service System has no record ofregistration for any of the Petitioners Three ofthemmdashElgin Tucker and Colbymdashdid not becomeaware of the registration requirement until after their26th birthdays when it was too late to register ThefourthmdashLawsonmdashknew about the requirement andbelieves that he registered but the Selective ServiceSystem does not have any record of his registrationElgin Lawson and Colby sought determinations thattheir failure to register was not knowing and willfulbut OPM denied their claims

Petitioners are former employees of federal agencies Elgin Lawson and Colby were terminatedsolely under 5 USC sect 3328 because they failed toregister Tucker resigned from one agency when hisfailure to register became apparent and his offer ofemployment from a second agency was withdrawnsolely because he failed to register

1 Michael B Elgin was first hired by the InternalRevenue Service (IRS) an agency of the TreasuryDepartment in 1991 as a low-level data transcriberPet App 95a Over the next sixteen years Elginconsistently received glowing evaluations and waspromoted to positions with increasing responsibilityFirst Am Compl para 31 As part of a routine backgroundinvestigation when he was offered a promotion in 2002the IRS learned that Elgin had not registered with theSelective Service and passed that information on toOPM Id parapara 32-34 Nevertheless Elgin was promotedId para 33

6

In 2003 OPM determined that Elgin was ineligiblefor federal employment under 5 USC sect 3328 becausehe had failed to register with the Selective ServiceElgin sought a waiver that would permit his employment arguing that his failure to register hadnot been knowing and willful because he had not beenaware of the registration requirement at age 18 hewas struggling to complete high school and support hisson while being virtually homeless Id parapara 29-30 OPMdenied his request for a waiver in 2006 BothMassachusetts Senators and the IRS asked OPM to reconsider explaining that Elgin was a valued IRSemployee whose termination would negatively affectthe agency and that Elginrsquos failure to register wasinadvertent Id para 34 OPM denied the Senatorsrsquo and IRSrsquos request Id para 35 Elgin was terminated on July 27 2007 Id para 36

2 Aaron Lawson has been a wildfire fighter since1997 first with the California Department of Forestryand later with the US Forest Service Id para 40 He isa specialist in directing helicopter crews fighting forestfires Id para 41 The Government has spent tens ofthousands of dollars training him to do this dangerouswork Id In 2003 the Bureau of Land Management adivision of the Interior Department in conjunctionwith the US Forest Service hired him as a wildfire fighter helicopter captain Id para 40 After he was hiredLawson learned that the Selective Service has no record of his registration Id Lawson believes that he completed the registration forms at his local post officearound the time of his 18th birthday Id para 39 TheBureau of Land Management and US Forest Servicerequested a waiver from OPM that would make

7

Lawson eligible for employment Id para 42 OPM deniedthe waiver Lawson was terminated Id

3 In 2007 Henry Tucker was a FinancialInstitution Specialist at the Federal Deposit InsuranceCorporation where he had been employed for 17 yearsId para 44 He had never been aware of the requirementto register with the Selective Service Tuckerrsquos motherleft him when he was 16 and he moved frequently as a teenager Id para 43 In December 2007 the FederalDeposit Insurance Corporation learned that Tuckerhad not registered with the Selective Service andreferred the matter to OPM Id para 45

Fearing that he would be fired Tucker resigned andapplied for a position with the National Institutes ofHealth which offered Tucker a job as a BudgetAnalyst Id para 46 It withdrew the offer however afterlearning that Tucker had not registered with theSelective Service Id

4 Christon Colby began working at the IRS in 2001as a temporary employee and was hired permanentlyin 2002 Id parapara 49-52 Colby received consistentlyexcellent performance reviews and was promoted topositions with increasing responsibility Id para 53 In2003 the IRS informed Colby that it had become awareof his failure to register with the Selective Service Id para 54 Colby sought a waiver from OPM on the basisthat his failure to register was not knowing and willfulColby explained that he had moved out of his parentsrsquohome at age 18 and was unaware of the registrationrequirement until he was too old to register Id parapara 47-48 55

8

In 2006 OPM declined to issue a waiver makinghim eligible for employment Id para 57 Colbyrsquossupervisor at the IRS appealed the determinationwithin OPM explaining that Colby was ldquoan extremelyvaluable and integralrdquo employee and noting that theIRS had invested $25000 in training Colby Id para 58OPM affirmed its decision not to issue Colby a waiverand Colby was terminated on August 3 2007 Id parapara 59-60

B Proceedings Before the Merit SystemsProtection Board and the District Court

The Civil Service Reform Act (CSRA) 92 Stat 1111 et seq provides that non-exempt federal employees(such as Petitioners had been) may challenge theirterminations before the Merit Systems ProtectionBoard (MSPB) under certain conditions 5 USCsectsect 7701(a) 7512(1) 7513(d) Shortly after beingterminated under 5 USC sect 3328 Petitioner Elginappealed the decision to the MSPB arguing that 5USC sect 3328 is a Bill of Attainder and that he wassubject to unconstitutional sex-based discriminationbecause the Selective Service registration requirementonly applies to men On November 16 2007 at theTreasury Departmentrsquos urging the MSPB dismissedElginrsquos appeal for lack of jurisdiction Pet App 100a-01a The MSPB explained that it lacked jurisdictionover appeals where employees were terminated underabsolute statutory prohibitions such as 5 USCsect 3328 Id The MSPB also held that it lacked authorityto rule on the constitutionality of a statute and notedthat to the extent it could review any constitutional ordiscrimination claims it did not have jurisdiction over

9

those claims without an explicit grant of jurisdictionwhich was absent here Id at 101a-02a

After Elginrsquos MSPB appeal was dismissed onDecember 28 2007 Elgin joined by Lawson Tuckerand Colby brought this action challenging theconstitutionality of 5 USC sect 3328 in the UnitedStates District Court for the District of Massachusetts against the United States of America the USDepartment of the Treasury and the US Departmentof the Interior (collectively the Government) First AmCompl para 1 Petitioners contended that 5 USC sect 3328is a Bill of Attainder prohibited by Article I Section 9Clause 3 of the Constitution because it legislativelyimposes punishmentmdashthe lifetime bar on federalemploymentmdashon a specific group of men for theirirreversible failure to register Petitioners also contended that because the Selective Service registration requirement and employment bar appliesto men and not women it unlawfully discriminatesunder the equal protection component of the FifthAmendment Id parapara 1 4 Petitioners sought declaratoryand injunctive relief including reinstatement Id para 4The claims were brought under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 andjurisdiction was premised on 28 USC sectsect 1331 1343and 1346 First Am Compl para 5 Petitioners amendedthe complaint in January 2008 to add a class actionclaim Id para 1

The Government moved to dismiss arguing thatPetitionersrsquo claims failed on the merits Pet App 66aThe Government did not at that time contest the district courtrsquos jurisdiction Petitioners responded by

10

opposing the motion to dismiss as to the equalprotection claim and seeking partial summaryjudgment as to liability on the Bill of Attainder claimAfter a hearing the district court granted Petitionersrsquomotion for partial summary judgment holding that 5USC sect 3328 was a Bill of Attainder and granted theGovernmentrsquos motion to dismiss in part holding thatthe Selective Service scheme did not violate Petitionersrsquo rights to equal protection Id at 66a-67a

Petitioners then filed a motion for class certification and sought a preliminary injunction reinstatingPetitioners The Government filed a motion for reconsideration of the district courtrsquos grant of summaryjudgment on the Bill of Attainder claim contendingboth that the claim failed on the merits and arguing forthe first time that the district court did not have subject matter jurisdiction over the claim because theCSRA precludes district court review of federalemployment decisions Id at 41a-42a The district court held that it did have jurisdiction but granted themotion for reconsideration because it determined on reexamination that 5 USC sect 3328 was not a Bill ofAttainder Id at 51a 63a-64a

C Proceedings Before the First Circuit Petitioners appealed the district courtrsquos decisions

dismissing the equal protection claim and granting themotion for reconsideration on the Bill of Attainder claim to the United States Court of Appeals for theFirst Circuit The panel agreed that Petitionersrsquo claimsshould be dismissed but was divided on the questionwhether the district court had jurisdiction overPetitionersrsquo constitutional claims for equitable reliefId at 15a

11

The majority agreed with the Government that theCSRA provides the exclusive remedy for the termination or constructive termination of federal employees even for facial constitutional challenges likethis one 92 Stat 1111 et seq (codified as amended invarious sections of 5 USC) The CSRA permits non-exempt federal employees such as Petitioners toappeal their terminations to the MSPB if they wereremoved ldquofor such cause as will promote the efficiencyof the servicerdquo 5 USC sect 7513(a) see generally idsectsect 7511-7514 Employees can then appeal the MSPBdecision to the United States Court of Appeals for theFederal Circuit Id sect 7703(b)(1) As the majority notedthis Court has held that though the CSRA does notexplicitly state it is the exclusive remedy itscomprehensiveness generally precludes ordinarydistrict court review of federal employee removals PetApp 6a (citing United States v Fausto 484 US 439 443-55 (1988) and Bush v Lucas 462 US 367 368 (1983))

The majority held that Petitionersrsquo terminationswhich were based solely on 5 USC sect 3328 werenonetheless terminations made for ldquoefficiency of theservicerdquo under 5 USC sect 7513(a) and were thereforesubject to the review procedures outlined by the CSRAPet App 7a-9a Noting the circuit split on thequestion the majority held that the CSRA is theexclusive remedy even when the employee brings onlyconstitutional claims for equitable relief Id at 11a-12a amp 12a n4 Therefore the district court lacked jurisdiction over Petitionersrsquo claims

The majority recognized however that its conclusion might be different if the CSRA provided no

12

remedy for Petitionersrsquo constitutional claims Id at 13a Though the majority did not dispute that theMSPB was powerless to strike down a statute asunconstitutional the majority reasoned that theFederal Circuit had the authority to do so on appealfrom the MSPB Id at 14a Therefore according to themajority the merits of Petitionersrsquo constitutionalclaims could be aired and decided at the Federal Circuit if not the MSPB

Petitioners had argued that their constitutionalclaims could not have been heard in the Federal Circuit because the Federal Circuit has itself repeatedly stated that its jurisdiction on appeal fromthe MSPB is coextensive with the jurisdiction of theMSPB which would not have had jurisdiction overPetitionersrsquo claims The majority disagreed reasoningthat the Federal Circuit had never addressed the question of its jurisdiction under these precisecircumstances and had posited that it would berequired to entertain constitutional claims seekingequitable relief under Webster v Doe 486 US 592 (1988) Pet App 14a (citing Riggin v Office of SenateFair Emprsquot Practices 61 F3d 1563 1570 (Fed Cir 1995) and Brockmann v Deprsquot of the Air Force 27 F3d 544 546-47 (Fed Cir 1994)) Even if the FederalCircuit would have held that it lacked jurisdiction toreview Petitionersrsquo constitutional claims the majorityexplained Petitioners could still have soughtadjudication of their claims on certiorari in this CourtId

Judge Stahl disagreed that the district court lackedjurisdiction but would have rejected Petitionersrsquo claimson the merits Id at 15a Judge Stahl sided with the

13

Third Ninth and DC Circuits and held that because the CSRA does not explicitly state that it prohibitsemployees from bringing constitutional challenges forequitable relief in district court it does not precludesuch actions Id at 23a-24a

Judge Stahl disagreed with the majority thatPetitionersrsquo constitutional claims could have been addressed in the Federal Circuit He explained that theFederal Circuitrsquos jurisdiction has never exceeded thescope of the MSPBrsquos jurisdiction on review of appealsfrom the MSPB even when the appellant assertedconstitutional claims beyond the MSPBrsquos jurisdictionId at 21a-22a (citing Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) (unpublished)) Judge Stahlnoted that in Brockmann v Department of the Air Force relied on by the majority the Federal Circuithypothesized about the possibility of reviewingconstitutional claims but did not actually state that itwould or could do so Id (discussing Brockmann 27 F3d at 546-47) Therefore Judge Stahl reasoned thebetter reading of the Federal Circuitrsquos decisions wasthat it would not have had jurisdiction and the CSRAprocess would not have provided any review ofPetitionersrsquo constitutional claims Id at 22a

14

REASONS FOR GRANTING THE WRIT I This Court Should Resolve the Deep and Enduring

Circuit Split on the Question Whether the CivilService Reform Act Impliedly Precludes FederalDistrict Courts From Granting Equitable Relief onthe Constitutional Claims of Federal Employees As the First Circuit acknowledged this case raises

a question on which there is a deep and longstandingcircuit split whether the CSRA impliedly precludesfederal district courts from exercising jurisdiction overthe constitutional claims of federal employees seekinginjunctive relief Id at 12a n4 24a-25a The Third and DC Circuits have held that the CSRA does not preclude district court jurisdiction over equitableconstitutional claims the First Second and Tenth Circuits have held that it does and four other circuits have recognized the split2

A The Circuit Split 1 Two circuitsmdashthe Third and DC Circuitsmdashhave

held that the CSRA does not preclude federal

2See Am Fedrsquon of Govrsquot Emps Local 1 v Stone 502 F3d 1027 1037-39 (9th Cir 2007) (discussing circuit split) Dotson v Griesa 398 F3d 156 179 (2d Cir 2005) cert denied 547 US 1191 (2006)(ldquoThe circuits are divided as to whether equitable relief such asreinstatement is available to federal employees notwithstandingtheir general agreement that the CSRA precludes Bivens claims for damagesrdquo) Hardison v Cohen 375 F3d 1262 1266 (11th Cir2004) (ldquoSeveral of our sister circuits have differed on whetherequitable relief is precluded by the presence of a statutoryremedial schemerdquo) Paige v Cisneros 91 F3d 40 44 (7th Cir 1996) (discussing circuit split) Mitchum v Hurt 73 F3d 30 34 (3d Cir 1995) (discussing circuit split) Bryant v Cheney 924 F2d 525 525 (4th Cir 1991) (discussing ldquotension among the circuitsrdquo)

15

employees from bringing claims for equitable relief forconstitutional injuries in federal district court Athirdmdashthe Ninth Circuitmdashhas expressly agreed withthe Third and DC Circuits and has held that at least in some circumstances federal employees may bringconstitutional claims for equitable relief in district court

In Hubbard v EPA 809 F2d 1 (DC Cir 1986) adetective with the DC Police Department alleged thathe had been denied a position with the EnvironmentalProtection Agency because of statements he made tothe press about an investigation into illegal drug useby members of Congress Under the CSRA Hubbardcould appeal the decisionmdashincluding his constitutionalclaims under the First Amendmentmdashto OPM and file a petition with the Office of Special Counsel Hubbardbrought a Bivens action in district court for damages aswell as a claim for injunctive relief Id at 1 3 8

Relying on this Courtrsquos decision in Bush v Lucas the DC Circuit held that Hubbardrsquos Bivens claim for damages was precluded by the CSRArsquos comprehensiveremedial scheme In Bush this Court rejected a federalemployeersquos Bivens claim for damages because theldquocomprehensive procedural and substantive provisionsrdquoof the CSRA are ldquospecial factors counselling hesitationin the absence of affirmative action by CongressrdquoBush 462 US at 377 (quoting Carlson v Green 446 US 14 18-19 (1980)) However the DC Circuit ruledthat the CSRA did not preclude Hubbardrsquos claim forequitable relief because to eliminate courtsrsquo jurisdictionover equitable relief for constitutional violationsCongress must do so explicitly and the CSRA did notcontain any provision explicitly eliminating federal

16

court jurisdiction The DC Circuit explained thedifference

The courtsrsquo power to impose equitable remediesagainst agencies is broader than its power toimpose legal remedies against individualsBivens actions are a recent judicial creation and as Carlson v Green made clear comparativelyeasy for Congress to preempt The courtsrsquo power to enjoin unconstitutional acts by the government however is inherent in the Constitution itself see Marbury v Madison 5 US (1 Cranch) 137 LEd 60 (1803) AlthoughCongress may limit this power see Ex Parte McCardle 74 US (7 Wall) 506 19 LEd 264(1869) CSRA did not explicitly limit ourjurisdiction to enjoin unconstitutional personnelactions by federal agencies

Hubbard 809 F2d at 11 n15 The Bivens portion of the Hubbard decision was

reheard and affirmed en banc in Spagnola v Mathis 859 F2d 223 (DC Cir 1988) Although the en banccourt did not rehear the question whether the CSRAalso precludes constitutional claims for equitable reliefit made clear that its decision with regard to theBivens claim left the equitable claim intact ldquo[T]imeand again this court has affirmed the right of civil servants to seek equitable relief against their supervisors and the agency itself in vindication oftheir constitutional rightsrdquo Id at 229-30

In Mitchum v Hurt 73 F3d at 36 the Third Circuit joined the DC Circuit in holding that theCSRA did not preclude district court jurisdiction over

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

vi

Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) 20

Chappell v Wallace 462 US 296 (1983) 25

Charner v OPM 2009 MSPB LEXIS 1296 (MSPB Mar 62009) 28-29

Clarke v OPM MSPB LEXIS 7101 (MSPB Dec 172007) 29

Daneshpayeh v Department of the Air Force 1994 WL 18964 (Fed Cir Jan 26 1994) 28

Dotson v Griesa 398 F3d 156 (2d Cir 2005)cert denied 547 US 1191 (2006) 14 20 22

Elgin v Department of the Treasury 2007 MSPB LEXIS 7502 (MSPB Nov 162007) 3

Hardison v Cohen 375 F3d 1262 (11th Cir 2004) 14 21 22

Hubbard v EPA 809 F2d 1 (DC Cir 1986) 15 16 26

Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) 13

vii

Johnson v Robison 415 US 361 (1974) 24 30

Lombardi v Small Business Administration 889 F2d 959 (10th Cir 1989) 19

Maddox v Merit Systems Protection Board 759 F2d 9 (Fed Cir 1985) 27

Manning v Merit Systems Protection Board 742 F2d 1424 (Fed Cir 1984) 31

Marbury v Madison 5 US (1 Cranch) 137 (1803) 16 26

Ex Parte McCardle 74 US (7 Wall) 506 (1869) 16

Mitchum v Hurt 73 F3d 30 (3d Cir 1995) 14 16 17 19 22 25

Osborn v Bank of the United States 22 US (9 Wheat) 738 (1824) 17 26

Paige v Cisneros 91 F3d 40 (7th Cir 1996) 14 21 22

Perez v Merit Systems Protection Board 931 F2d 853 (Fed Cir 1991) 31

Riggin v Office of Senate Fair EmploymentPractices 61 F3d 1563 (Fed Cir 1995) 12 31

viii

Rivera v Department of Veterans Affairs 2008 MSPB LEXIS 2056 (MSPB Mar 312008) 29

Rosano v Department of the Navy 699 F2d 1315 (Fed Cir 1983) 31

Saul v United States 928 F2d 829 (9th Cir 1991) 19

Schweiker v Chilicky 487 US 412 (1988) 25

Spagnola v Mathis 859 F2d 223 (DC Cir 1988) 16

Stanley v Gonzales 476 F3d 653 (9th Cir 2007) 18 19

Steel Co v Citizens for a Better Environment 523 US 83 (1998) 22

Travaglini v Department of Education 18 MSPR 127 (MSPB 1983)affrsquod as modified 23 MSPR 417 (MSPB1984) 28

United States v Fausto 484 US 439 (1988) 11 24

United States v Lee 106 US 196 (1882) 26

ix

Webster v Doe 486 US 592 (1988) 12 18 23 24 27

Whitfield v Department of the Interior 2008 MSPB LEXIS 6910 (MSPB Dec 232008) 29

Whitman v Department of Transportation 547 US 512 (2006) 23 26

Ex Parte Young 209 US 123 (1908) 17 26

STATUTES

Civil Service Reform Act 92 Stat 1111 et seq 2 4 8 11

5 USC sect 702 3 9

5 USC sect 3328 passim

5 USC sectsect 7511-7514 11

5 USC sect 7512(1) 8

5 USC sect 7513(a) 11 27

5 USC sect 7513(d) 8 27

5 USC sect 7701(a) 8

5 USC sect 7703(b)(1) 11

x

28 USC sect 1254 1

28 USC sect 1331 9 26

28 USC sect 2201 3 9

28 USC sect 2202 3 9

50 USC app sect 453 1 4

REGULATIONS AND PROCLAMATION

5 CFR sect 300706(c) 28 29

Proclamation No 4771

28 USC sect 1295(a)(9) 29

28 USC sect 1343 9

28 USC sect 1346 9

50 USC app sect 462(a) 4

50 USC app sect 465(a) 4

5 CFR sect 300707 5

45 Fed Reg 45247 (July 2 1980) 4

xi

OTHER SOURCE

Brief for Respondents Whitman v Department ofTransportation 547 US 512 (2006)(No 04-1131) 2005 WL 2738321 23

PETITION FOR A WRIT OF CERTIORARI Petitioners Michael B Elgin Aaron Lawson Henry

Tucker and Christon Colby respectfully petition for awrit of certiorari to review the judgment of the UnitedStates Court of Appeals for the First Circuit

OPINIONS BELOW The opinion of the United States Court of Appeals

for the First Circuit (Pet App 1a) is published at 641F3d 6 The district courtrsquos decision grantingPetitionersrsquo motion for partial summary judgment anddenying in part and granting in part Respondentsrsquomotion to dismiss (Pet App 65a) is published at 594 FSupp 2d 133 The district courtrsquos decision grantingRespondentsrsquo motion for reconsideration (Pet App39a) is published at 697 F Supp 2d 187

JURISDICTION The judgment of the court of appeals was entered

on April 8 2011 Pet App 2a This Court hasjurisdiction under 28 USC sect 1254(1)

STATUTES INVOLVED 5 USC sect 3328 bars men who fail to register with

the Selective Service from federal agency employmentIn full it provides

(a) An individualmdash (1) who was born after December 31 1959

and is or was required to register under section3 of the Military Selective Service Act (50 AppUSC 453) and

(2) who is not so registered or knowingly andwillfully did not so register before the requirement terminated or became inapplicable to the individual shall be ineligible for

2

appointment to a position in an Executive agency (b) The Office of Personnel Management inconsultation with the Director of the Selective Service System shall prescribe regulations tocarry out this section Such regulations shallinclude provisions prescribing procedures for theadjudication of determinations of whether afailure to register was knowing and willful Suchprocedures shall require that such a determination may not be made if the individualconcerned shows by a preponderance of theevidence that the failure to register was neitherknowing nor willful Such procedures mayprovide that determinations of eligibility underthe requirements of this section shall beadjudicated by the Executive agency making theappointment for which the eligibility is determined The Civil Service Reform Act 92 Stat 1111 et seq

outlines administrative procedures available to certainfederal employees for certain adverse employmentactions Relevant portions of the Civil Service ReformAct are reproduced in the Appendix at 108a

STATEMENT OF THE CASE Petitioners Michael B Elgin Aaron Lawson Henry

Tucker and Christon Colby are former federalemployees Each was terminated or constructivelyterminated from his federal employment under 5USC sect 3328 which imposes a lifetime bar on federalexecutive agency employment on men who do not

3

register with the Selective Service between the ages of18 and 26 First Am Compl para 2

Elgin appealed his termination to the MeritSystems Protection Board (MSPB) arguing that 5USC sect 3328 was a Bill of Attainder and that he wasdiscriminated against on the basis of sex The MSPBdismissed Elginrsquos appeal for lack of jurisdiction PetApp 95a 104a1

Elgin Lawson Tucker and Colby then brought thisaction in district court under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 againsttheir former employers the United States the USDepartment of the Treasury and the US Departmentof the Interior First Am Compl para 5 Petitionerschallenged 5 USC sect 3328 as a Bill of Attainder and asviolative of their constitutional rights to equalprotection on the basis of sex seeking injunctive anddeclaratory relief Id para 4 The district court initiallyheld that 5 USC sect 3328 was a Bill of Attainder butdid not violate Petitionersrsquo right to equal protectionand granted Petitionersrsquo partial motion for summaryjudgment Pet App 66a-67a On reconsideration thedistrict court addressed for the first time whether it had jurisdiction over Petitionersrsquo claims and held thatit did Id at 51a However the district court reversed its holding on the merits ruling that 5 USC sect 3328was not a Bill of Attainder Id at 63a-64a

1The unpublished decision of the MSPB is reproduced in theAppendix at 94a It is also available at Elgin v Department of theTreasury No PH-0752-08-0004-I-1 2007 MSPB LEXIS 7502 (MSPB Nov 16 2007)

4

A divided panel of the Court of Appeals for the FirstCircuit vacated the district courtrsquos decision and remanded for entry of a new judgment denyingPetitioners relief for lack of subject matter jurisdictionId at 15a Acknowledging a circuit split (id at 12a n4) the panel majority held that the district courtlacked jurisdiction to review Petitionersrsquo claimsbecause the Civil Service Reform Act (CSRA) 92 Stat1111 et seq impliedly precludes federal district courtsfrom granting equitable relief for constitutional injuries Id at 12a Because the CSRA does not explicitly preclude such relief the concurring judgewould have found that the district court had jurisdiction Id at 18a

A Factual Background The Military Selective Service Act requires all

males to register with the Selective Service betweenthe ages of 18 and 26 upon proclamation of thePresident 50 USC app sect 453 Since 1980 apresidential proclamation has required registrationand all persons are by statute ldquodeemedrdquo to knowabout the registration requirement Proclamation No4771 45 Fed Reg 45247 (July 2 1980) 50 USC appsect 465(a) Failure to register is a crime punishable bya fine of up to $10000 and up to five years in prisonMen can be prosecuted until their 31st birthdays Id sect 462(a) In addition in 1986 Congress enacted 5USC sect 3328 which further penalizes men whoknowingly and willfully fail to register by imposing alifetime bar on federal executive agency employmentRegulations provide for the termination of employeeswho fail to register and the Office of PersonnelManagement (OPM) is responsible for determining

5

whether the failure to register was knowing andwillful 5 CFR sect 300707

The Selective Service System has no record ofregistration for any of the Petitioners Three ofthemmdashElgin Tucker and Colbymdashdid not becomeaware of the registration requirement until after their26th birthdays when it was too late to register ThefourthmdashLawsonmdashknew about the requirement andbelieves that he registered but the Selective ServiceSystem does not have any record of his registrationElgin Lawson and Colby sought determinations thattheir failure to register was not knowing and willfulbut OPM denied their claims

Petitioners are former employees of federal agencies Elgin Lawson and Colby were terminatedsolely under 5 USC sect 3328 because they failed toregister Tucker resigned from one agency when hisfailure to register became apparent and his offer ofemployment from a second agency was withdrawnsolely because he failed to register

1 Michael B Elgin was first hired by the InternalRevenue Service (IRS) an agency of the TreasuryDepartment in 1991 as a low-level data transcriberPet App 95a Over the next sixteen years Elginconsistently received glowing evaluations and waspromoted to positions with increasing responsibilityFirst Am Compl para 31 As part of a routine backgroundinvestigation when he was offered a promotion in 2002the IRS learned that Elgin had not registered with theSelective Service and passed that information on toOPM Id parapara 32-34 Nevertheless Elgin was promotedId para 33

6

In 2003 OPM determined that Elgin was ineligiblefor federal employment under 5 USC sect 3328 becausehe had failed to register with the Selective ServiceElgin sought a waiver that would permit his employment arguing that his failure to register hadnot been knowing and willful because he had not beenaware of the registration requirement at age 18 hewas struggling to complete high school and support hisson while being virtually homeless Id parapara 29-30 OPMdenied his request for a waiver in 2006 BothMassachusetts Senators and the IRS asked OPM to reconsider explaining that Elgin was a valued IRSemployee whose termination would negatively affectthe agency and that Elginrsquos failure to register wasinadvertent Id para 34 OPM denied the Senatorsrsquo and IRSrsquos request Id para 35 Elgin was terminated on July 27 2007 Id para 36

2 Aaron Lawson has been a wildfire fighter since1997 first with the California Department of Forestryand later with the US Forest Service Id para 40 He isa specialist in directing helicopter crews fighting forestfires Id para 41 The Government has spent tens ofthousands of dollars training him to do this dangerouswork Id In 2003 the Bureau of Land Management adivision of the Interior Department in conjunctionwith the US Forest Service hired him as a wildfire fighter helicopter captain Id para 40 After he was hiredLawson learned that the Selective Service has no record of his registration Id Lawson believes that he completed the registration forms at his local post officearound the time of his 18th birthday Id para 39 TheBureau of Land Management and US Forest Servicerequested a waiver from OPM that would make

7

Lawson eligible for employment Id para 42 OPM deniedthe waiver Lawson was terminated Id

3 In 2007 Henry Tucker was a FinancialInstitution Specialist at the Federal Deposit InsuranceCorporation where he had been employed for 17 yearsId para 44 He had never been aware of the requirementto register with the Selective Service Tuckerrsquos motherleft him when he was 16 and he moved frequently as a teenager Id para 43 In December 2007 the FederalDeposit Insurance Corporation learned that Tuckerhad not registered with the Selective Service andreferred the matter to OPM Id para 45

Fearing that he would be fired Tucker resigned andapplied for a position with the National Institutes ofHealth which offered Tucker a job as a BudgetAnalyst Id para 46 It withdrew the offer however afterlearning that Tucker had not registered with theSelective Service Id

4 Christon Colby began working at the IRS in 2001as a temporary employee and was hired permanentlyin 2002 Id parapara 49-52 Colby received consistentlyexcellent performance reviews and was promoted topositions with increasing responsibility Id para 53 In2003 the IRS informed Colby that it had become awareof his failure to register with the Selective Service Id para 54 Colby sought a waiver from OPM on the basisthat his failure to register was not knowing and willfulColby explained that he had moved out of his parentsrsquohome at age 18 and was unaware of the registrationrequirement until he was too old to register Id parapara 47-48 55

8

In 2006 OPM declined to issue a waiver makinghim eligible for employment Id para 57 Colbyrsquossupervisor at the IRS appealed the determinationwithin OPM explaining that Colby was ldquoan extremelyvaluable and integralrdquo employee and noting that theIRS had invested $25000 in training Colby Id para 58OPM affirmed its decision not to issue Colby a waiverand Colby was terminated on August 3 2007 Id parapara 59-60

B Proceedings Before the Merit SystemsProtection Board and the District Court

The Civil Service Reform Act (CSRA) 92 Stat 1111 et seq provides that non-exempt federal employees(such as Petitioners had been) may challenge theirterminations before the Merit Systems ProtectionBoard (MSPB) under certain conditions 5 USCsectsect 7701(a) 7512(1) 7513(d) Shortly after beingterminated under 5 USC sect 3328 Petitioner Elginappealed the decision to the MSPB arguing that 5USC sect 3328 is a Bill of Attainder and that he wassubject to unconstitutional sex-based discriminationbecause the Selective Service registration requirementonly applies to men On November 16 2007 at theTreasury Departmentrsquos urging the MSPB dismissedElginrsquos appeal for lack of jurisdiction Pet App 100a-01a The MSPB explained that it lacked jurisdictionover appeals where employees were terminated underabsolute statutory prohibitions such as 5 USCsect 3328 Id The MSPB also held that it lacked authorityto rule on the constitutionality of a statute and notedthat to the extent it could review any constitutional ordiscrimination claims it did not have jurisdiction over

9

those claims without an explicit grant of jurisdictionwhich was absent here Id at 101a-02a

After Elginrsquos MSPB appeal was dismissed onDecember 28 2007 Elgin joined by Lawson Tuckerand Colby brought this action challenging theconstitutionality of 5 USC sect 3328 in the UnitedStates District Court for the District of Massachusetts against the United States of America the USDepartment of the Treasury and the US Departmentof the Interior (collectively the Government) First AmCompl para 1 Petitioners contended that 5 USC sect 3328is a Bill of Attainder prohibited by Article I Section 9Clause 3 of the Constitution because it legislativelyimposes punishmentmdashthe lifetime bar on federalemploymentmdashon a specific group of men for theirirreversible failure to register Petitioners also contended that because the Selective Service registration requirement and employment bar appliesto men and not women it unlawfully discriminatesunder the equal protection component of the FifthAmendment Id parapara 1 4 Petitioners sought declaratoryand injunctive relief including reinstatement Id para 4The claims were brought under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 andjurisdiction was premised on 28 USC sectsect 1331 1343and 1346 First Am Compl para 5 Petitioners amendedthe complaint in January 2008 to add a class actionclaim Id para 1

The Government moved to dismiss arguing thatPetitionersrsquo claims failed on the merits Pet App 66aThe Government did not at that time contest the district courtrsquos jurisdiction Petitioners responded by

10

opposing the motion to dismiss as to the equalprotection claim and seeking partial summaryjudgment as to liability on the Bill of Attainder claimAfter a hearing the district court granted Petitionersrsquomotion for partial summary judgment holding that 5USC sect 3328 was a Bill of Attainder and granted theGovernmentrsquos motion to dismiss in part holding thatthe Selective Service scheme did not violate Petitionersrsquo rights to equal protection Id at 66a-67a

Petitioners then filed a motion for class certification and sought a preliminary injunction reinstatingPetitioners The Government filed a motion for reconsideration of the district courtrsquos grant of summaryjudgment on the Bill of Attainder claim contendingboth that the claim failed on the merits and arguing forthe first time that the district court did not have subject matter jurisdiction over the claim because theCSRA precludes district court review of federalemployment decisions Id at 41a-42a The district court held that it did have jurisdiction but granted themotion for reconsideration because it determined on reexamination that 5 USC sect 3328 was not a Bill ofAttainder Id at 51a 63a-64a

C Proceedings Before the First Circuit Petitioners appealed the district courtrsquos decisions

dismissing the equal protection claim and granting themotion for reconsideration on the Bill of Attainder claim to the United States Court of Appeals for theFirst Circuit The panel agreed that Petitionersrsquo claimsshould be dismissed but was divided on the questionwhether the district court had jurisdiction overPetitionersrsquo constitutional claims for equitable reliefId at 15a

11

The majority agreed with the Government that theCSRA provides the exclusive remedy for the termination or constructive termination of federal employees even for facial constitutional challenges likethis one 92 Stat 1111 et seq (codified as amended invarious sections of 5 USC) The CSRA permits non-exempt federal employees such as Petitioners toappeal their terminations to the MSPB if they wereremoved ldquofor such cause as will promote the efficiencyof the servicerdquo 5 USC sect 7513(a) see generally idsectsect 7511-7514 Employees can then appeal the MSPBdecision to the United States Court of Appeals for theFederal Circuit Id sect 7703(b)(1) As the majority notedthis Court has held that though the CSRA does notexplicitly state it is the exclusive remedy itscomprehensiveness generally precludes ordinarydistrict court review of federal employee removals PetApp 6a (citing United States v Fausto 484 US 439 443-55 (1988) and Bush v Lucas 462 US 367 368 (1983))

The majority held that Petitionersrsquo terminationswhich were based solely on 5 USC sect 3328 werenonetheless terminations made for ldquoefficiency of theservicerdquo under 5 USC sect 7513(a) and were thereforesubject to the review procedures outlined by the CSRAPet App 7a-9a Noting the circuit split on thequestion the majority held that the CSRA is theexclusive remedy even when the employee brings onlyconstitutional claims for equitable relief Id at 11a-12a amp 12a n4 Therefore the district court lacked jurisdiction over Petitionersrsquo claims

The majority recognized however that its conclusion might be different if the CSRA provided no

12

remedy for Petitionersrsquo constitutional claims Id at 13a Though the majority did not dispute that theMSPB was powerless to strike down a statute asunconstitutional the majority reasoned that theFederal Circuit had the authority to do so on appealfrom the MSPB Id at 14a Therefore according to themajority the merits of Petitionersrsquo constitutionalclaims could be aired and decided at the Federal Circuit if not the MSPB

Petitioners had argued that their constitutionalclaims could not have been heard in the Federal Circuit because the Federal Circuit has itself repeatedly stated that its jurisdiction on appeal fromthe MSPB is coextensive with the jurisdiction of theMSPB which would not have had jurisdiction overPetitionersrsquo claims The majority disagreed reasoningthat the Federal Circuit had never addressed the question of its jurisdiction under these precisecircumstances and had posited that it would berequired to entertain constitutional claims seekingequitable relief under Webster v Doe 486 US 592 (1988) Pet App 14a (citing Riggin v Office of SenateFair Emprsquot Practices 61 F3d 1563 1570 (Fed Cir 1995) and Brockmann v Deprsquot of the Air Force 27 F3d 544 546-47 (Fed Cir 1994)) Even if the FederalCircuit would have held that it lacked jurisdiction toreview Petitionersrsquo constitutional claims the majorityexplained Petitioners could still have soughtadjudication of their claims on certiorari in this CourtId

Judge Stahl disagreed that the district court lackedjurisdiction but would have rejected Petitionersrsquo claimson the merits Id at 15a Judge Stahl sided with the

13

Third Ninth and DC Circuits and held that because the CSRA does not explicitly state that it prohibitsemployees from bringing constitutional challenges forequitable relief in district court it does not precludesuch actions Id at 23a-24a

Judge Stahl disagreed with the majority thatPetitionersrsquo constitutional claims could have been addressed in the Federal Circuit He explained that theFederal Circuitrsquos jurisdiction has never exceeded thescope of the MSPBrsquos jurisdiction on review of appealsfrom the MSPB even when the appellant assertedconstitutional claims beyond the MSPBrsquos jurisdictionId at 21a-22a (citing Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) (unpublished)) Judge Stahlnoted that in Brockmann v Department of the Air Force relied on by the majority the Federal Circuithypothesized about the possibility of reviewingconstitutional claims but did not actually state that itwould or could do so Id (discussing Brockmann 27 F3d at 546-47) Therefore Judge Stahl reasoned thebetter reading of the Federal Circuitrsquos decisions wasthat it would not have had jurisdiction and the CSRAprocess would not have provided any review ofPetitionersrsquo constitutional claims Id at 22a

14

REASONS FOR GRANTING THE WRIT I This Court Should Resolve the Deep and Enduring

Circuit Split on the Question Whether the CivilService Reform Act Impliedly Precludes FederalDistrict Courts From Granting Equitable Relief onthe Constitutional Claims of Federal Employees As the First Circuit acknowledged this case raises

a question on which there is a deep and longstandingcircuit split whether the CSRA impliedly precludesfederal district courts from exercising jurisdiction overthe constitutional claims of federal employees seekinginjunctive relief Id at 12a n4 24a-25a The Third and DC Circuits have held that the CSRA does not preclude district court jurisdiction over equitableconstitutional claims the First Second and Tenth Circuits have held that it does and four other circuits have recognized the split2

A The Circuit Split 1 Two circuitsmdashthe Third and DC Circuitsmdashhave

held that the CSRA does not preclude federal

2See Am Fedrsquon of Govrsquot Emps Local 1 v Stone 502 F3d 1027 1037-39 (9th Cir 2007) (discussing circuit split) Dotson v Griesa 398 F3d 156 179 (2d Cir 2005) cert denied 547 US 1191 (2006)(ldquoThe circuits are divided as to whether equitable relief such asreinstatement is available to federal employees notwithstandingtheir general agreement that the CSRA precludes Bivens claims for damagesrdquo) Hardison v Cohen 375 F3d 1262 1266 (11th Cir2004) (ldquoSeveral of our sister circuits have differed on whetherequitable relief is precluded by the presence of a statutoryremedial schemerdquo) Paige v Cisneros 91 F3d 40 44 (7th Cir 1996) (discussing circuit split) Mitchum v Hurt 73 F3d 30 34 (3d Cir 1995) (discussing circuit split) Bryant v Cheney 924 F2d 525 525 (4th Cir 1991) (discussing ldquotension among the circuitsrdquo)

15

employees from bringing claims for equitable relief forconstitutional injuries in federal district court Athirdmdashthe Ninth Circuitmdashhas expressly agreed withthe Third and DC Circuits and has held that at least in some circumstances federal employees may bringconstitutional claims for equitable relief in district court

In Hubbard v EPA 809 F2d 1 (DC Cir 1986) adetective with the DC Police Department alleged thathe had been denied a position with the EnvironmentalProtection Agency because of statements he made tothe press about an investigation into illegal drug useby members of Congress Under the CSRA Hubbardcould appeal the decisionmdashincluding his constitutionalclaims under the First Amendmentmdashto OPM and file a petition with the Office of Special Counsel Hubbardbrought a Bivens action in district court for damages aswell as a claim for injunctive relief Id at 1 3 8

Relying on this Courtrsquos decision in Bush v Lucas the DC Circuit held that Hubbardrsquos Bivens claim for damages was precluded by the CSRArsquos comprehensiveremedial scheme In Bush this Court rejected a federalemployeersquos Bivens claim for damages because theldquocomprehensive procedural and substantive provisionsrdquoof the CSRA are ldquospecial factors counselling hesitationin the absence of affirmative action by CongressrdquoBush 462 US at 377 (quoting Carlson v Green 446 US 14 18-19 (1980)) However the DC Circuit ruledthat the CSRA did not preclude Hubbardrsquos claim forequitable relief because to eliminate courtsrsquo jurisdictionover equitable relief for constitutional violationsCongress must do so explicitly and the CSRA did notcontain any provision explicitly eliminating federal

16

court jurisdiction The DC Circuit explained thedifference

The courtsrsquo power to impose equitable remediesagainst agencies is broader than its power toimpose legal remedies against individualsBivens actions are a recent judicial creation and as Carlson v Green made clear comparativelyeasy for Congress to preempt The courtsrsquo power to enjoin unconstitutional acts by the government however is inherent in the Constitution itself see Marbury v Madison 5 US (1 Cranch) 137 LEd 60 (1803) AlthoughCongress may limit this power see Ex Parte McCardle 74 US (7 Wall) 506 19 LEd 264(1869) CSRA did not explicitly limit ourjurisdiction to enjoin unconstitutional personnelactions by federal agencies

Hubbard 809 F2d at 11 n15 The Bivens portion of the Hubbard decision was

reheard and affirmed en banc in Spagnola v Mathis 859 F2d 223 (DC Cir 1988) Although the en banccourt did not rehear the question whether the CSRAalso precludes constitutional claims for equitable reliefit made clear that its decision with regard to theBivens claim left the equitable claim intact ldquo[T]imeand again this court has affirmed the right of civil servants to seek equitable relief against their supervisors and the agency itself in vindication oftheir constitutional rightsrdquo Id at 229-30

In Mitchum v Hurt 73 F3d at 36 the Third Circuit joined the DC Circuit in holding that theCSRA did not preclude district court jurisdiction over

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

vii

Johnson v Robison 415 US 361 (1974) 24 30

Lombardi v Small Business Administration 889 F2d 959 (10th Cir 1989) 19

Maddox v Merit Systems Protection Board 759 F2d 9 (Fed Cir 1985) 27

Manning v Merit Systems Protection Board 742 F2d 1424 (Fed Cir 1984) 31

Marbury v Madison 5 US (1 Cranch) 137 (1803) 16 26

Ex Parte McCardle 74 US (7 Wall) 506 (1869) 16

Mitchum v Hurt 73 F3d 30 (3d Cir 1995) 14 16 17 19 22 25

Osborn v Bank of the United States 22 US (9 Wheat) 738 (1824) 17 26

Paige v Cisneros 91 F3d 40 (7th Cir 1996) 14 21 22

Perez v Merit Systems Protection Board 931 F2d 853 (Fed Cir 1991) 31

Riggin v Office of Senate Fair EmploymentPractices 61 F3d 1563 (Fed Cir 1995) 12 31

viii

Rivera v Department of Veterans Affairs 2008 MSPB LEXIS 2056 (MSPB Mar 312008) 29

Rosano v Department of the Navy 699 F2d 1315 (Fed Cir 1983) 31

Saul v United States 928 F2d 829 (9th Cir 1991) 19

Schweiker v Chilicky 487 US 412 (1988) 25

Spagnola v Mathis 859 F2d 223 (DC Cir 1988) 16

Stanley v Gonzales 476 F3d 653 (9th Cir 2007) 18 19

Steel Co v Citizens for a Better Environment 523 US 83 (1998) 22

Travaglini v Department of Education 18 MSPR 127 (MSPB 1983)affrsquod as modified 23 MSPR 417 (MSPB1984) 28

United States v Fausto 484 US 439 (1988) 11 24

United States v Lee 106 US 196 (1882) 26

ix

Webster v Doe 486 US 592 (1988) 12 18 23 24 27

Whitfield v Department of the Interior 2008 MSPB LEXIS 6910 (MSPB Dec 232008) 29

Whitman v Department of Transportation 547 US 512 (2006) 23 26

Ex Parte Young 209 US 123 (1908) 17 26

STATUTES

Civil Service Reform Act 92 Stat 1111 et seq 2 4 8 11

5 USC sect 702 3 9

5 USC sect 3328 passim

5 USC sectsect 7511-7514 11

5 USC sect 7512(1) 8

5 USC sect 7513(a) 11 27

5 USC sect 7513(d) 8 27

5 USC sect 7701(a) 8

5 USC sect 7703(b)(1) 11

x

28 USC sect 1254 1

28 USC sect 1331 9 26

28 USC sect 2201 3 9

28 USC sect 2202 3 9

50 USC app sect 453 1 4

REGULATIONS AND PROCLAMATION

5 CFR sect 300706(c) 28 29

Proclamation No 4771

28 USC sect 1295(a)(9) 29

28 USC sect 1343 9

28 USC sect 1346 9

50 USC app sect 462(a) 4

50 USC app sect 465(a) 4

5 CFR sect 300707 5

45 Fed Reg 45247 (July 2 1980) 4

xi

OTHER SOURCE

Brief for Respondents Whitman v Department ofTransportation 547 US 512 (2006)(No 04-1131) 2005 WL 2738321 23

PETITION FOR A WRIT OF CERTIORARI Petitioners Michael B Elgin Aaron Lawson Henry

Tucker and Christon Colby respectfully petition for awrit of certiorari to review the judgment of the UnitedStates Court of Appeals for the First Circuit

OPINIONS BELOW The opinion of the United States Court of Appeals

for the First Circuit (Pet App 1a) is published at 641F3d 6 The district courtrsquos decision grantingPetitionersrsquo motion for partial summary judgment anddenying in part and granting in part Respondentsrsquomotion to dismiss (Pet App 65a) is published at 594 FSupp 2d 133 The district courtrsquos decision grantingRespondentsrsquo motion for reconsideration (Pet App39a) is published at 697 F Supp 2d 187

JURISDICTION The judgment of the court of appeals was entered

on April 8 2011 Pet App 2a This Court hasjurisdiction under 28 USC sect 1254(1)

STATUTES INVOLVED 5 USC sect 3328 bars men who fail to register with

the Selective Service from federal agency employmentIn full it provides

(a) An individualmdash (1) who was born after December 31 1959

and is or was required to register under section3 of the Military Selective Service Act (50 AppUSC 453) and

(2) who is not so registered or knowingly andwillfully did not so register before the requirement terminated or became inapplicable to the individual shall be ineligible for

2

appointment to a position in an Executive agency (b) The Office of Personnel Management inconsultation with the Director of the Selective Service System shall prescribe regulations tocarry out this section Such regulations shallinclude provisions prescribing procedures for theadjudication of determinations of whether afailure to register was knowing and willful Suchprocedures shall require that such a determination may not be made if the individualconcerned shows by a preponderance of theevidence that the failure to register was neitherknowing nor willful Such procedures mayprovide that determinations of eligibility underthe requirements of this section shall beadjudicated by the Executive agency making theappointment for which the eligibility is determined The Civil Service Reform Act 92 Stat 1111 et seq

outlines administrative procedures available to certainfederal employees for certain adverse employmentactions Relevant portions of the Civil Service ReformAct are reproduced in the Appendix at 108a

STATEMENT OF THE CASE Petitioners Michael B Elgin Aaron Lawson Henry

Tucker and Christon Colby are former federalemployees Each was terminated or constructivelyterminated from his federal employment under 5USC sect 3328 which imposes a lifetime bar on federalexecutive agency employment on men who do not

3

register with the Selective Service between the ages of18 and 26 First Am Compl para 2

Elgin appealed his termination to the MeritSystems Protection Board (MSPB) arguing that 5USC sect 3328 was a Bill of Attainder and that he wasdiscriminated against on the basis of sex The MSPBdismissed Elginrsquos appeal for lack of jurisdiction PetApp 95a 104a1

Elgin Lawson Tucker and Colby then brought thisaction in district court under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 againsttheir former employers the United States the USDepartment of the Treasury and the US Departmentof the Interior First Am Compl para 5 Petitionerschallenged 5 USC sect 3328 as a Bill of Attainder and asviolative of their constitutional rights to equalprotection on the basis of sex seeking injunctive anddeclaratory relief Id para 4 The district court initiallyheld that 5 USC sect 3328 was a Bill of Attainder butdid not violate Petitionersrsquo right to equal protectionand granted Petitionersrsquo partial motion for summaryjudgment Pet App 66a-67a On reconsideration thedistrict court addressed for the first time whether it had jurisdiction over Petitionersrsquo claims and held thatit did Id at 51a However the district court reversed its holding on the merits ruling that 5 USC sect 3328was not a Bill of Attainder Id at 63a-64a

1The unpublished decision of the MSPB is reproduced in theAppendix at 94a It is also available at Elgin v Department of theTreasury No PH-0752-08-0004-I-1 2007 MSPB LEXIS 7502 (MSPB Nov 16 2007)

4

A divided panel of the Court of Appeals for the FirstCircuit vacated the district courtrsquos decision and remanded for entry of a new judgment denyingPetitioners relief for lack of subject matter jurisdictionId at 15a Acknowledging a circuit split (id at 12a n4) the panel majority held that the district courtlacked jurisdiction to review Petitionersrsquo claimsbecause the Civil Service Reform Act (CSRA) 92 Stat1111 et seq impliedly precludes federal district courtsfrom granting equitable relief for constitutional injuries Id at 12a Because the CSRA does not explicitly preclude such relief the concurring judgewould have found that the district court had jurisdiction Id at 18a

A Factual Background The Military Selective Service Act requires all

males to register with the Selective Service betweenthe ages of 18 and 26 upon proclamation of thePresident 50 USC app sect 453 Since 1980 apresidential proclamation has required registrationand all persons are by statute ldquodeemedrdquo to knowabout the registration requirement Proclamation No4771 45 Fed Reg 45247 (July 2 1980) 50 USC appsect 465(a) Failure to register is a crime punishable bya fine of up to $10000 and up to five years in prisonMen can be prosecuted until their 31st birthdays Id sect 462(a) In addition in 1986 Congress enacted 5USC sect 3328 which further penalizes men whoknowingly and willfully fail to register by imposing alifetime bar on federal executive agency employmentRegulations provide for the termination of employeeswho fail to register and the Office of PersonnelManagement (OPM) is responsible for determining

5

whether the failure to register was knowing andwillful 5 CFR sect 300707

The Selective Service System has no record ofregistration for any of the Petitioners Three ofthemmdashElgin Tucker and Colbymdashdid not becomeaware of the registration requirement until after their26th birthdays when it was too late to register ThefourthmdashLawsonmdashknew about the requirement andbelieves that he registered but the Selective ServiceSystem does not have any record of his registrationElgin Lawson and Colby sought determinations thattheir failure to register was not knowing and willfulbut OPM denied their claims

Petitioners are former employees of federal agencies Elgin Lawson and Colby were terminatedsolely under 5 USC sect 3328 because they failed toregister Tucker resigned from one agency when hisfailure to register became apparent and his offer ofemployment from a second agency was withdrawnsolely because he failed to register

1 Michael B Elgin was first hired by the InternalRevenue Service (IRS) an agency of the TreasuryDepartment in 1991 as a low-level data transcriberPet App 95a Over the next sixteen years Elginconsistently received glowing evaluations and waspromoted to positions with increasing responsibilityFirst Am Compl para 31 As part of a routine backgroundinvestigation when he was offered a promotion in 2002the IRS learned that Elgin had not registered with theSelective Service and passed that information on toOPM Id parapara 32-34 Nevertheless Elgin was promotedId para 33

6

In 2003 OPM determined that Elgin was ineligiblefor federal employment under 5 USC sect 3328 becausehe had failed to register with the Selective ServiceElgin sought a waiver that would permit his employment arguing that his failure to register hadnot been knowing and willful because he had not beenaware of the registration requirement at age 18 hewas struggling to complete high school and support hisson while being virtually homeless Id parapara 29-30 OPMdenied his request for a waiver in 2006 BothMassachusetts Senators and the IRS asked OPM to reconsider explaining that Elgin was a valued IRSemployee whose termination would negatively affectthe agency and that Elginrsquos failure to register wasinadvertent Id para 34 OPM denied the Senatorsrsquo and IRSrsquos request Id para 35 Elgin was terminated on July 27 2007 Id para 36

2 Aaron Lawson has been a wildfire fighter since1997 first with the California Department of Forestryand later with the US Forest Service Id para 40 He isa specialist in directing helicopter crews fighting forestfires Id para 41 The Government has spent tens ofthousands of dollars training him to do this dangerouswork Id In 2003 the Bureau of Land Management adivision of the Interior Department in conjunctionwith the US Forest Service hired him as a wildfire fighter helicopter captain Id para 40 After he was hiredLawson learned that the Selective Service has no record of his registration Id Lawson believes that he completed the registration forms at his local post officearound the time of his 18th birthday Id para 39 TheBureau of Land Management and US Forest Servicerequested a waiver from OPM that would make

7

Lawson eligible for employment Id para 42 OPM deniedthe waiver Lawson was terminated Id

3 In 2007 Henry Tucker was a FinancialInstitution Specialist at the Federal Deposit InsuranceCorporation where he had been employed for 17 yearsId para 44 He had never been aware of the requirementto register with the Selective Service Tuckerrsquos motherleft him when he was 16 and he moved frequently as a teenager Id para 43 In December 2007 the FederalDeposit Insurance Corporation learned that Tuckerhad not registered with the Selective Service andreferred the matter to OPM Id para 45

Fearing that he would be fired Tucker resigned andapplied for a position with the National Institutes ofHealth which offered Tucker a job as a BudgetAnalyst Id para 46 It withdrew the offer however afterlearning that Tucker had not registered with theSelective Service Id

4 Christon Colby began working at the IRS in 2001as a temporary employee and was hired permanentlyin 2002 Id parapara 49-52 Colby received consistentlyexcellent performance reviews and was promoted topositions with increasing responsibility Id para 53 In2003 the IRS informed Colby that it had become awareof his failure to register with the Selective Service Id para 54 Colby sought a waiver from OPM on the basisthat his failure to register was not knowing and willfulColby explained that he had moved out of his parentsrsquohome at age 18 and was unaware of the registrationrequirement until he was too old to register Id parapara 47-48 55

8

In 2006 OPM declined to issue a waiver makinghim eligible for employment Id para 57 Colbyrsquossupervisor at the IRS appealed the determinationwithin OPM explaining that Colby was ldquoan extremelyvaluable and integralrdquo employee and noting that theIRS had invested $25000 in training Colby Id para 58OPM affirmed its decision not to issue Colby a waiverand Colby was terminated on August 3 2007 Id parapara 59-60

B Proceedings Before the Merit SystemsProtection Board and the District Court

The Civil Service Reform Act (CSRA) 92 Stat 1111 et seq provides that non-exempt federal employees(such as Petitioners had been) may challenge theirterminations before the Merit Systems ProtectionBoard (MSPB) under certain conditions 5 USCsectsect 7701(a) 7512(1) 7513(d) Shortly after beingterminated under 5 USC sect 3328 Petitioner Elginappealed the decision to the MSPB arguing that 5USC sect 3328 is a Bill of Attainder and that he wassubject to unconstitutional sex-based discriminationbecause the Selective Service registration requirementonly applies to men On November 16 2007 at theTreasury Departmentrsquos urging the MSPB dismissedElginrsquos appeal for lack of jurisdiction Pet App 100a-01a The MSPB explained that it lacked jurisdictionover appeals where employees were terminated underabsolute statutory prohibitions such as 5 USCsect 3328 Id The MSPB also held that it lacked authorityto rule on the constitutionality of a statute and notedthat to the extent it could review any constitutional ordiscrimination claims it did not have jurisdiction over

9

those claims without an explicit grant of jurisdictionwhich was absent here Id at 101a-02a

After Elginrsquos MSPB appeal was dismissed onDecember 28 2007 Elgin joined by Lawson Tuckerand Colby brought this action challenging theconstitutionality of 5 USC sect 3328 in the UnitedStates District Court for the District of Massachusetts against the United States of America the USDepartment of the Treasury and the US Departmentof the Interior (collectively the Government) First AmCompl para 1 Petitioners contended that 5 USC sect 3328is a Bill of Attainder prohibited by Article I Section 9Clause 3 of the Constitution because it legislativelyimposes punishmentmdashthe lifetime bar on federalemploymentmdashon a specific group of men for theirirreversible failure to register Petitioners also contended that because the Selective Service registration requirement and employment bar appliesto men and not women it unlawfully discriminatesunder the equal protection component of the FifthAmendment Id parapara 1 4 Petitioners sought declaratoryand injunctive relief including reinstatement Id para 4The claims were brought under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 andjurisdiction was premised on 28 USC sectsect 1331 1343and 1346 First Am Compl para 5 Petitioners amendedthe complaint in January 2008 to add a class actionclaim Id para 1

The Government moved to dismiss arguing thatPetitionersrsquo claims failed on the merits Pet App 66aThe Government did not at that time contest the district courtrsquos jurisdiction Petitioners responded by

10

opposing the motion to dismiss as to the equalprotection claim and seeking partial summaryjudgment as to liability on the Bill of Attainder claimAfter a hearing the district court granted Petitionersrsquomotion for partial summary judgment holding that 5USC sect 3328 was a Bill of Attainder and granted theGovernmentrsquos motion to dismiss in part holding thatthe Selective Service scheme did not violate Petitionersrsquo rights to equal protection Id at 66a-67a

Petitioners then filed a motion for class certification and sought a preliminary injunction reinstatingPetitioners The Government filed a motion for reconsideration of the district courtrsquos grant of summaryjudgment on the Bill of Attainder claim contendingboth that the claim failed on the merits and arguing forthe first time that the district court did not have subject matter jurisdiction over the claim because theCSRA precludes district court review of federalemployment decisions Id at 41a-42a The district court held that it did have jurisdiction but granted themotion for reconsideration because it determined on reexamination that 5 USC sect 3328 was not a Bill ofAttainder Id at 51a 63a-64a

C Proceedings Before the First Circuit Petitioners appealed the district courtrsquos decisions

dismissing the equal protection claim and granting themotion for reconsideration on the Bill of Attainder claim to the United States Court of Appeals for theFirst Circuit The panel agreed that Petitionersrsquo claimsshould be dismissed but was divided on the questionwhether the district court had jurisdiction overPetitionersrsquo constitutional claims for equitable reliefId at 15a

11

The majority agreed with the Government that theCSRA provides the exclusive remedy for the termination or constructive termination of federal employees even for facial constitutional challenges likethis one 92 Stat 1111 et seq (codified as amended invarious sections of 5 USC) The CSRA permits non-exempt federal employees such as Petitioners toappeal their terminations to the MSPB if they wereremoved ldquofor such cause as will promote the efficiencyof the servicerdquo 5 USC sect 7513(a) see generally idsectsect 7511-7514 Employees can then appeal the MSPBdecision to the United States Court of Appeals for theFederal Circuit Id sect 7703(b)(1) As the majority notedthis Court has held that though the CSRA does notexplicitly state it is the exclusive remedy itscomprehensiveness generally precludes ordinarydistrict court review of federal employee removals PetApp 6a (citing United States v Fausto 484 US 439 443-55 (1988) and Bush v Lucas 462 US 367 368 (1983))

The majority held that Petitionersrsquo terminationswhich were based solely on 5 USC sect 3328 werenonetheless terminations made for ldquoefficiency of theservicerdquo under 5 USC sect 7513(a) and were thereforesubject to the review procedures outlined by the CSRAPet App 7a-9a Noting the circuit split on thequestion the majority held that the CSRA is theexclusive remedy even when the employee brings onlyconstitutional claims for equitable relief Id at 11a-12a amp 12a n4 Therefore the district court lacked jurisdiction over Petitionersrsquo claims

The majority recognized however that its conclusion might be different if the CSRA provided no

12

remedy for Petitionersrsquo constitutional claims Id at 13a Though the majority did not dispute that theMSPB was powerless to strike down a statute asunconstitutional the majority reasoned that theFederal Circuit had the authority to do so on appealfrom the MSPB Id at 14a Therefore according to themajority the merits of Petitionersrsquo constitutionalclaims could be aired and decided at the Federal Circuit if not the MSPB

Petitioners had argued that their constitutionalclaims could not have been heard in the Federal Circuit because the Federal Circuit has itself repeatedly stated that its jurisdiction on appeal fromthe MSPB is coextensive with the jurisdiction of theMSPB which would not have had jurisdiction overPetitionersrsquo claims The majority disagreed reasoningthat the Federal Circuit had never addressed the question of its jurisdiction under these precisecircumstances and had posited that it would berequired to entertain constitutional claims seekingequitable relief under Webster v Doe 486 US 592 (1988) Pet App 14a (citing Riggin v Office of SenateFair Emprsquot Practices 61 F3d 1563 1570 (Fed Cir 1995) and Brockmann v Deprsquot of the Air Force 27 F3d 544 546-47 (Fed Cir 1994)) Even if the FederalCircuit would have held that it lacked jurisdiction toreview Petitionersrsquo constitutional claims the majorityexplained Petitioners could still have soughtadjudication of their claims on certiorari in this CourtId

Judge Stahl disagreed that the district court lackedjurisdiction but would have rejected Petitionersrsquo claimson the merits Id at 15a Judge Stahl sided with the

13

Third Ninth and DC Circuits and held that because the CSRA does not explicitly state that it prohibitsemployees from bringing constitutional challenges forequitable relief in district court it does not precludesuch actions Id at 23a-24a

Judge Stahl disagreed with the majority thatPetitionersrsquo constitutional claims could have been addressed in the Federal Circuit He explained that theFederal Circuitrsquos jurisdiction has never exceeded thescope of the MSPBrsquos jurisdiction on review of appealsfrom the MSPB even when the appellant assertedconstitutional claims beyond the MSPBrsquos jurisdictionId at 21a-22a (citing Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) (unpublished)) Judge Stahlnoted that in Brockmann v Department of the Air Force relied on by the majority the Federal Circuithypothesized about the possibility of reviewingconstitutional claims but did not actually state that itwould or could do so Id (discussing Brockmann 27 F3d at 546-47) Therefore Judge Stahl reasoned thebetter reading of the Federal Circuitrsquos decisions wasthat it would not have had jurisdiction and the CSRAprocess would not have provided any review ofPetitionersrsquo constitutional claims Id at 22a

14

REASONS FOR GRANTING THE WRIT I This Court Should Resolve the Deep and Enduring

Circuit Split on the Question Whether the CivilService Reform Act Impliedly Precludes FederalDistrict Courts From Granting Equitable Relief onthe Constitutional Claims of Federal Employees As the First Circuit acknowledged this case raises

a question on which there is a deep and longstandingcircuit split whether the CSRA impliedly precludesfederal district courts from exercising jurisdiction overthe constitutional claims of federal employees seekinginjunctive relief Id at 12a n4 24a-25a The Third and DC Circuits have held that the CSRA does not preclude district court jurisdiction over equitableconstitutional claims the First Second and Tenth Circuits have held that it does and four other circuits have recognized the split2

A The Circuit Split 1 Two circuitsmdashthe Third and DC Circuitsmdashhave

held that the CSRA does not preclude federal

2See Am Fedrsquon of Govrsquot Emps Local 1 v Stone 502 F3d 1027 1037-39 (9th Cir 2007) (discussing circuit split) Dotson v Griesa 398 F3d 156 179 (2d Cir 2005) cert denied 547 US 1191 (2006)(ldquoThe circuits are divided as to whether equitable relief such asreinstatement is available to federal employees notwithstandingtheir general agreement that the CSRA precludes Bivens claims for damagesrdquo) Hardison v Cohen 375 F3d 1262 1266 (11th Cir2004) (ldquoSeveral of our sister circuits have differed on whetherequitable relief is precluded by the presence of a statutoryremedial schemerdquo) Paige v Cisneros 91 F3d 40 44 (7th Cir 1996) (discussing circuit split) Mitchum v Hurt 73 F3d 30 34 (3d Cir 1995) (discussing circuit split) Bryant v Cheney 924 F2d 525 525 (4th Cir 1991) (discussing ldquotension among the circuitsrdquo)

15

employees from bringing claims for equitable relief forconstitutional injuries in federal district court Athirdmdashthe Ninth Circuitmdashhas expressly agreed withthe Third and DC Circuits and has held that at least in some circumstances federal employees may bringconstitutional claims for equitable relief in district court

In Hubbard v EPA 809 F2d 1 (DC Cir 1986) adetective with the DC Police Department alleged thathe had been denied a position with the EnvironmentalProtection Agency because of statements he made tothe press about an investigation into illegal drug useby members of Congress Under the CSRA Hubbardcould appeal the decisionmdashincluding his constitutionalclaims under the First Amendmentmdashto OPM and file a petition with the Office of Special Counsel Hubbardbrought a Bivens action in district court for damages aswell as a claim for injunctive relief Id at 1 3 8

Relying on this Courtrsquos decision in Bush v Lucas the DC Circuit held that Hubbardrsquos Bivens claim for damages was precluded by the CSRArsquos comprehensiveremedial scheme In Bush this Court rejected a federalemployeersquos Bivens claim for damages because theldquocomprehensive procedural and substantive provisionsrdquoof the CSRA are ldquospecial factors counselling hesitationin the absence of affirmative action by CongressrdquoBush 462 US at 377 (quoting Carlson v Green 446 US 14 18-19 (1980)) However the DC Circuit ruledthat the CSRA did not preclude Hubbardrsquos claim forequitable relief because to eliminate courtsrsquo jurisdictionover equitable relief for constitutional violationsCongress must do so explicitly and the CSRA did notcontain any provision explicitly eliminating federal

16

court jurisdiction The DC Circuit explained thedifference

The courtsrsquo power to impose equitable remediesagainst agencies is broader than its power toimpose legal remedies against individualsBivens actions are a recent judicial creation and as Carlson v Green made clear comparativelyeasy for Congress to preempt The courtsrsquo power to enjoin unconstitutional acts by the government however is inherent in the Constitution itself see Marbury v Madison 5 US (1 Cranch) 137 LEd 60 (1803) AlthoughCongress may limit this power see Ex Parte McCardle 74 US (7 Wall) 506 19 LEd 264(1869) CSRA did not explicitly limit ourjurisdiction to enjoin unconstitutional personnelactions by federal agencies

Hubbard 809 F2d at 11 n15 The Bivens portion of the Hubbard decision was

reheard and affirmed en banc in Spagnola v Mathis 859 F2d 223 (DC Cir 1988) Although the en banccourt did not rehear the question whether the CSRAalso precludes constitutional claims for equitable reliefit made clear that its decision with regard to theBivens claim left the equitable claim intact ldquo[T]imeand again this court has affirmed the right of civil servants to seek equitable relief against their supervisors and the agency itself in vindication oftheir constitutional rightsrdquo Id at 229-30

In Mitchum v Hurt 73 F3d at 36 the Third Circuit joined the DC Circuit in holding that theCSRA did not preclude district court jurisdiction over

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

viii

Rivera v Department of Veterans Affairs 2008 MSPB LEXIS 2056 (MSPB Mar 312008) 29

Rosano v Department of the Navy 699 F2d 1315 (Fed Cir 1983) 31

Saul v United States 928 F2d 829 (9th Cir 1991) 19

Schweiker v Chilicky 487 US 412 (1988) 25

Spagnola v Mathis 859 F2d 223 (DC Cir 1988) 16

Stanley v Gonzales 476 F3d 653 (9th Cir 2007) 18 19

Steel Co v Citizens for a Better Environment 523 US 83 (1998) 22

Travaglini v Department of Education 18 MSPR 127 (MSPB 1983)affrsquod as modified 23 MSPR 417 (MSPB1984) 28

United States v Fausto 484 US 439 (1988) 11 24

United States v Lee 106 US 196 (1882) 26

ix

Webster v Doe 486 US 592 (1988) 12 18 23 24 27

Whitfield v Department of the Interior 2008 MSPB LEXIS 6910 (MSPB Dec 232008) 29

Whitman v Department of Transportation 547 US 512 (2006) 23 26

Ex Parte Young 209 US 123 (1908) 17 26

STATUTES

Civil Service Reform Act 92 Stat 1111 et seq 2 4 8 11

5 USC sect 702 3 9

5 USC sect 3328 passim

5 USC sectsect 7511-7514 11

5 USC sect 7512(1) 8

5 USC sect 7513(a) 11 27

5 USC sect 7513(d) 8 27

5 USC sect 7701(a) 8

5 USC sect 7703(b)(1) 11

x

28 USC sect 1254 1

28 USC sect 1331 9 26

28 USC sect 2201 3 9

28 USC sect 2202 3 9

50 USC app sect 453 1 4

REGULATIONS AND PROCLAMATION

5 CFR sect 300706(c) 28 29

Proclamation No 4771

28 USC sect 1295(a)(9) 29

28 USC sect 1343 9

28 USC sect 1346 9

50 USC app sect 462(a) 4

50 USC app sect 465(a) 4

5 CFR sect 300707 5

45 Fed Reg 45247 (July 2 1980) 4

xi

OTHER SOURCE

Brief for Respondents Whitman v Department ofTransportation 547 US 512 (2006)(No 04-1131) 2005 WL 2738321 23

PETITION FOR A WRIT OF CERTIORARI Petitioners Michael B Elgin Aaron Lawson Henry

Tucker and Christon Colby respectfully petition for awrit of certiorari to review the judgment of the UnitedStates Court of Appeals for the First Circuit

OPINIONS BELOW The opinion of the United States Court of Appeals

for the First Circuit (Pet App 1a) is published at 641F3d 6 The district courtrsquos decision grantingPetitionersrsquo motion for partial summary judgment anddenying in part and granting in part Respondentsrsquomotion to dismiss (Pet App 65a) is published at 594 FSupp 2d 133 The district courtrsquos decision grantingRespondentsrsquo motion for reconsideration (Pet App39a) is published at 697 F Supp 2d 187

JURISDICTION The judgment of the court of appeals was entered

on April 8 2011 Pet App 2a This Court hasjurisdiction under 28 USC sect 1254(1)

STATUTES INVOLVED 5 USC sect 3328 bars men who fail to register with

the Selective Service from federal agency employmentIn full it provides

(a) An individualmdash (1) who was born after December 31 1959

and is or was required to register under section3 of the Military Selective Service Act (50 AppUSC 453) and

(2) who is not so registered or knowingly andwillfully did not so register before the requirement terminated or became inapplicable to the individual shall be ineligible for

2

appointment to a position in an Executive agency (b) The Office of Personnel Management inconsultation with the Director of the Selective Service System shall prescribe regulations tocarry out this section Such regulations shallinclude provisions prescribing procedures for theadjudication of determinations of whether afailure to register was knowing and willful Suchprocedures shall require that such a determination may not be made if the individualconcerned shows by a preponderance of theevidence that the failure to register was neitherknowing nor willful Such procedures mayprovide that determinations of eligibility underthe requirements of this section shall beadjudicated by the Executive agency making theappointment for which the eligibility is determined The Civil Service Reform Act 92 Stat 1111 et seq

outlines administrative procedures available to certainfederal employees for certain adverse employmentactions Relevant portions of the Civil Service ReformAct are reproduced in the Appendix at 108a

STATEMENT OF THE CASE Petitioners Michael B Elgin Aaron Lawson Henry

Tucker and Christon Colby are former federalemployees Each was terminated or constructivelyterminated from his federal employment under 5USC sect 3328 which imposes a lifetime bar on federalexecutive agency employment on men who do not

3

register with the Selective Service between the ages of18 and 26 First Am Compl para 2

Elgin appealed his termination to the MeritSystems Protection Board (MSPB) arguing that 5USC sect 3328 was a Bill of Attainder and that he wasdiscriminated against on the basis of sex The MSPBdismissed Elginrsquos appeal for lack of jurisdiction PetApp 95a 104a1

Elgin Lawson Tucker and Colby then brought thisaction in district court under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 againsttheir former employers the United States the USDepartment of the Treasury and the US Departmentof the Interior First Am Compl para 5 Petitionerschallenged 5 USC sect 3328 as a Bill of Attainder and asviolative of their constitutional rights to equalprotection on the basis of sex seeking injunctive anddeclaratory relief Id para 4 The district court initiallyheld that 5 USC sect 3328 was a Bill of Attainder butdid not violate Petitionersrsquo right to equal protectionand granted Petitionersrsquo partial motion for summaryjudgment Pet App 66a-67a On reconsideration thedistrict court addressed for the first time whether it had jurisdiction over Petitionersrsquo claims and held thatit did Id at 51a However the district court reversed its holding on the merits ruling that 5 USC sect 3328was not a Bill of Attainder Id at 63a-64a

1The unpublished decision of the MSPB is reproduced in theAppendix at 94a It is also available at Elgin v Department of theTreasury No PH-0752-08-0004-I-1 2007 MSPB LEXIS 7502 (MSPB Nov 16 2007)

4

A divided panel of the Court of Appeals for the FirstCircuit vacated the district courtrsquos decision and remanded for entry of a new judgment denyingPetitioners relief for lack of subject matter jurisdictionId at 15a Acknowledging a circuit split (id at 12a n4) the panel majority held that the district courtlacked jurisdiction to review Petitionersrsquo claimsbecause the Civil Service Reform Act (CSRA) 92 Stat1111 et seq impliedly precludes federal district courtsfrom granting equitable relief for constitutional injuries Id at 12a Because the CSRA does not explicitly preclude such relief the concurring judgewould have found that the district court had jurisdiction Id at 18a

A Factual Background The Military Selective Service Act requires all

males to register with the Selective Service betweenthe ages of 18 and 26 upon proclamation of thePresident 50 USC app sect 453 Since 1980 apresidential proclamation has required registrationand all persons are by statute ldquodeemedrdquo to knowabout the registration requirement Proclamation No4771 45 Fed Reg 45247 (July 2 1980) 50 USC appsect 465(a) Failure to register is a crime punishable bya fine of up to $10000 and up to five years in prisonMen can be prosecuted until their 31st birthdays Id sect 462(a) In addition in 1986 Congress enacted 5USC sect 3328 which further penalizes men whoknowingly and willfully fail to register by imposing alifetime bar on federal executive agency employmentRegulations provide for the termination of employeeswho fail to register and the Office of PersonnelManagement (OPM) is responsible for determining

5

whether the failure to register was knowing andwillful 5 CFR sect 300707

The Selective Service System has no record ofregistration for any of the Petitioners Three ofthemmdashElgin Tucker and Colbymdashdid not becomeaware of the registration requirement until after their26th birthdays when it was too late to register ThefourthmdashLawsonmdashknew about the requirement andbelieves that he registered but the Selective ServiceSystem does not have any record of his registrationElgin Lawson and Colby sought determinations thattheir failure to register was not knowing and willfulbut OPM denied their claims

Petitioners are former employees of federal agencies Elgin Lawson and Colby were terminatedsolely under 5 USC sect 3328 because they failed toregister Tucker resigned from one agency when hisfailure to register became apparent and his offer ofemployment from a second agency was withdrawnsolely because he failed to register

1 Michael B Elgin was first hired by the InternalRevenue Service (IRS) an agency of the TreasuryDepartment in 1991 as a low-level data transcriberPet App 95a Over the next sixteen years Elginconsistently received glowing evaluations and waspromoted to positions with increasing responsibilityFirst Am Compl para 31 As part of a routine backgroundinvestigation when he was offered a promotion in 2002the IRS learned that Elgin had not registered with theSelective Service and passed that information on toOPM Id parapara 32-34 Nevertheless Elgin was promotedId para 33

6

In 2003 OPM determined that Elgin was ineligiblefor federal employment under 5 USC sect 3328 becausehe had failed to register with the Selective ServiceElgin sought a waiver that would permit his employment arguing that his failure to register hadnot been knowing and willful because he had not beenaware of the registration requirement at age 18 hewas struggling to complete high school and support hisson while being virtually homeless Id parapara 29-30 OPMdenied his request for a waiver in 2006 BothMassachusetts Senators and the IRS asked OPM to reconsider explaining that Elgin was a valued IRSemployee whose termination would negatively affectthe agency and that Elginrsquos failure to register wasinadvertent Id para 34 OPM denied the Senatorsrsquo and IRSrsquos request Id para 35 Elgin was terminated on July 27 2007 Id para 36

2 Aaron Lawson has been a wildfire fighter since1997 first with the California Department of Forestryand later with the US Forest Service Id para 40 He isa specialist in directing helicopter crews fighting forestfires Id para 41 The Government has spent tens ofthousands of dollars training him to do this dangerouswork Id In 2003 the Bureau of Land Management adivision of the Interior Department in conjunctionwith the US Forest Service hired him as a wildfire fighter helicopter captain Id para 40 After he was hiredLawson learned that the Selective Service has no record of his registration Id Lawson believes that he completed the registration forms at his local post officearound the time of his 18th birthday Id para 39 TheBureau of Land Management and US Forest Servicerequested a waiver from OPM that would make

7

Lawson eligible for employment Id para 42 OPM deniedthe waiver Lawson was terminated Id

3 In 2007 Henry Tucker was a FinancialInstitution Specialist at the Federal Deposit InsuranceCorporation where he had been employed for 17 yearsId para 44 He had never been aware of the requirementto register with the Selective Service Tuckerrsquos motherleft him when he was 16 and he moved frequently as a teenager Id para 43 In December 2007 the FederalDeposit Insurance Corporation learned that Tuckerhad not registered with the Selective Service andreferred the matter to OPM Id para 45

Fearing that he would be fired Tucker resigned andapplied for a position with the National Institutes ofHealth which offered Tucker a job as a BudgetAnalyst Id para 46 It withdrew the offer however afterlearning that Tucker had not registered with theSelective Service Id

4 Christon Colby began working at the IRS in 2001as a temporary employee and was hired permanentlyin 2002 Id parapara 49-52 Colby received consistentlyexcellent performance reviews and was promoted topositions with increasing responsibility Id para 53 In2003 the IRS informed Colby that it had become awareof his failure to register with the Selective Service Id para 54 Colby sought a waiver from OPM on the basisthat his failure to register was not knowing and willfulColby explained that he had moved out of his parentsrsquohome at age 18 and was unaware of the registrationrequirement until he was too old to register Id parapara 47-48 55

8

In 2006 OPM declined to issue a waiver makinghim eligible for employment Id para 57 Colbyrsquossupervisor at the IRS appealed the determinationwithin OPM explaining that Colby was ldquoan extremelyvaluable and integralrdquo employee and noting that theIRS had invested $25000 in training Colby Id para 58OPM affirmed its decision not to issue Colby a waiverand Colby was terminated on August 3 2007 Id parapara 59-60

B Proceedings Before the Merit SystemsProtection Board and the District Court

The Civil Service Reform Act (CSRA) 92 Stat 1111 et seq provides that non-exempt federal employees(such as Petitioners had been) may challenge theirterminations before the Merit Systems ProtectionBoard (MSPB) under certain conditions 5 USCsectsect 7701(a) 7512(1) 7513(d) Shortly after beingterminated under 5 USC sect 3328 Petitioner Elginappealed the decision to the MSPB arguing that 5USC sect 3328 is a Bill of Attainder and that he wassubject to unconstitutional sex-based discriminationbecause the Selective Service registration requirementonly applies to men On November 16 2007 at theTreasury Departmentrsquos urging the MSPB dismissedElginrsquos appeal for lack of jurisdiction Pet App 100a-01a The MSPB explained that it lacked jurisdictionover appeals where employees were terminated underabsolute statutory prohibitions such as 5 USCsect 3328 Id The MSPB also held that it lacked authorityto rule on the constitutionality of a statute and notedthat to the extent it could review any constitutional ordiscrimination claims it did not have jurisdiction over

9

those claims without an explicit grant of jurisdictionwhich was absent here Id at 101a-02a

After Elginrsquos MSPB appeal was dismissed onDecember 28 2007 Elgin joined by Lawson Tuckerand Colby brought this action challenging theconstitutionality of 5 USC sect 3328 in the UnitedStates District Court for the District of Massachusetts against the United States of America the USDepartment of the Treasury and the US Departmentof the Interior (collectively the Government) First AmCompl para 1 Petitioners contended that 5 USC sect 3328is a Bill of Attainder prohibited by Article I Section 9Clause 3 of the Constitution because it legislativelyimposes punishmentmdashthe lifetime bar on federalemploymentmdashon a specific group of men for theirirreversible failure to register Petitioners also contended that because the Selective Service registration requirement and employment bar appliesto men and not women it unlawfully discriminatesunder the equal protection component of the FifthAmendment Id parapara 1 4 Petitioners sought declaratoryand injunctive relief including reinstatement Id para 4The claims were brought under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 andjurisdiction was premised on 28 USC sectsect 1331 1343and 1346 First Am Compl para 5 Petitioners amendedthe complaint in January 2008 to add a class actionclaim Id para 1

The Government moved to dismiss arguing thatPetitionersrsquo claims failed on the merits Pet App 66aThe Government did not at that time contest the district courtrsquos jurisdiction Petitioners responded by

10

opposing the motion to dismiss as to the equalprotection claim and seeking partial summaryjudgment as to liability on the Bill of Attainder claimAfter a hearing the district court granted Petitionersrsquomotion for partial summary judgment holding that 5USC sect 3328 was a Bill of Attainder and granted theGovernmentrsquos motion to dismiss in part holding thatthe Selective Service scheme did not violate Petitionersrsquo rights to equal protection Id at 66a-67a

Petitioners then filed a motion for class certification and sought a preliminary injunction reinstatingPetitioners The Government filed a motion for reconsideration of the district courtrsquos grant of summaryjudgment on the Bill of Attainder claim contendingboth that the claim failed on the merits and arguing forthe first time that the district court did not have subject matter jurisdiction over the claim because theCSRA precludes district court review of federalemployment decisions Id at 41a-42a The district court held that it did have jurisdiction but granted themotion for reconsideration because it determined on reexamination that 5 USC sect 3328 was not a Bill ofAttainder Id at 51a 63a-64a

C Proceedings Before the First Circuit Petitioners appealed the district courtrsquos decisions

dismissing the equal protection claim and granting themotion for reconsideration on the Bill of Attainder claim to the United States Court of Appeals for theFirst Circuit The panel agreed that Petitionersrsquo claimsshould be dismissed but was divided on the questionwhether the district court had jurisdiction overPetitionersrsquo constitutional claims for equitable reliefId at 15a

11

The majority agreed with the Government that theCSRA provides the exclusive remedy for the termination or constructive termination of federal employees even for facial constitutional challenges likethis one 92 Stat 1111 et seq (codified as amended invarious sections of 5 USC) The CSRA permits non-exempt federal employees such as Petitioners toappeal their terminations to the MSPB if they wereremoved ldquofor such cause as will promote the efficiencyof the servicerdquo 5 USC sect 7513(a) see generally idsectsect 7511-7514 Employees can then appeal the MSPBdecision to the United States Court of Appeals for theFederal Circuit Id sect 7703(b)(1) As the majority notedthis Court has held that though the CSRA does notexplicitly state it is the exclusive remedy itscomprehensiveness generally precludes ordinarydistrict court review of federal employee removals PetApp 6a (citing United States v Fausto 484 US 439 443-55 (1988) and Bush v Lucas 462 US 367 368 (1983))

The majority held that Petitionersrsquo terminationswhich were based solely on 5 USC sect 3328 werenonetheless terminations made for ldquoefficiency of theservicerdquo under 5 USC sect 7513(a) and were thereforesubject to the review procedures outlined by the CSRAPet App 7a-9a Noting the circuit split on thequestion the majority held that the CSRA is theexclusive remedy even when the employee brings onlyconstitutional claims for equitable relief Id at 11a-12a amp 12a n4 Therefore the district court lacked jurisdiction over Petitionersrsquo claims

The majority recognized however that its conclusion might be different if the CSRA provided no

12

remedy for Petitionersrsquo constitutional claims Id at 13a Though the majority did not dispute that theMSPB was powerless to strike down a statute asunconstitutional the majority reasoned that theFederal Circuit had the authority to do so on appealfrom the MSPB Id at 14a Therefore according to themajority the merits of Petitionersrsquo constitutionalclaims could be aired and decided at the Federal Circuit if not the MSPB

Petitioners had argued that their constitutionalclaims could not have been heard in the Federal Circuit because the Federal Circuit has itself repeatedly stated that its jurisdiction on appeal fromthe MSPB is coextensive with the jurisdiction of theMSPB which would not have had jurisdiction overPetitionersrsquo claims The majority disagreed reasoningthat the Federal Circuit had never addressed the question of its jurisdiction under these precisecircumstances and had posited that it would berequired to entertain constitutional claims seekingequitable relief under Webster v Doe 486 US 592 (1988) Pet App 14a (citing Riggin v Office of SenateFair Emprsquot Practices 61 F3d 1563 1570 (Fed Cir 1995) and Brockmann v Deprsquot of the Air Force 27 F3d 544 546-47 (Fed Cir 1994)) Even if the FederalCircuit would have held that it lacked jurisdiction toreview Petitionersrsquo constitutional claims the majorityexplained Petitioners could still have soughtadjudication of their claims on certiorari in this CourtId

Judge Stahl disagreed that the district court lackedjurisdiction but would have rejected Petitionersrsquo claimson the merits Id at 15a Judge Stahl sided with the

13

Third Ninth and DC Circuits and held that because the CSRA does not explicitly state that it prohibitsemployees from bringing constitutional challenges forequitable relief in district court it does not precludesuch actions Id at 23a-24a

Judge Stahl disagreed with the majority thatPetitionersrsquo constitutional claims could have been addressed in the Federal Circuit He explained that theFederal Circuitrsquos jurisdiction has never exceeded thescope of the MSPBrsquos jurisdiction on review of appealsfrom the MSPB even when the appellant assertedconstitutional claims beyond the MSPBrsquos jurisdictionId at 21a-22a (citing Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) (unpublished)) Judge Stahlnoted that in Brockmann v Department of the Air Force relied on by the majority the Federal Circuithypothesized about the possibility of reviewingconstitutional claims but did not actually state that itwould or could do so Id (discussing Brockmann 27 F3d at 546-47) Therefore Judge Stahl reasoned thebetter reading of the Federal Circuitrsquos decisions wasthat it would not have had jurisdiction and the CSRAprocess would not have provided any review ofPetitionersrsquo constitutional claims Id at 22a

14

REASONS FOR GRANTING THE WRIT I This Court Should Resolve the Deep and Enduring

Circuit Split on the Question Whether the CivilService Reform Act Impliedly Precludes FederalDistrict Courts From Granting Equitable Relief onthe Constitutional Claims of Federal Employees As the First Circuit acknowledged this case raises

a question on which there is a deep and longstandingcircuit split whether the CSRA impliedly precludesfederal district courts from exercising jurisdiction overthe constitutional claims of federal employees seekinginjunctive relief Id at 12a n4 24a-25a The Third and DC Circuits have held that the CSRA does not preclude district court jurisdiction over equitableconstitutional claims the First Second and Tenth Circuits have held that it does and four other circuits have recognized the split2

A The Circuit Split 1 Two circuitsmdashthe Third and DC Circuitsmdashhave

held that the CSRA does not preclude federal

2See Am Fedrsquon of Govrsquot Emps Local 1 v Stone 502 F3d 1027 1037-39 (9th Cir 2007) (discussing circuit split) Dotson v Griesa 398 F3d 156 179 (2d Cir 2005) cert denied 547 US 1191 (2006)(ldquoThe circuits are divided as to whether equitable relief such asreinstatement is available to federal employees notwithstandingtheir general agreement that the CSRA precludes Bivens claims for damagesrdquo) Hardison v Cohen 375 F3d 1262 1266 (11th Cir2004) (ldquoSeveral of our sister circuits have differed on whetherequitable relief is precluded by the presence of a statutoryremedial schemerdquo) Paige v Cisneros 91 F3d 40 44 (7th Cir 1996) (discussing circuit split) Mitchum v Hurt 73 F3d 30 34 (3d Cir 1995) (discussing circuit split) Bryant v Cheney 924 F2d 525 525 (4th Cir 1991) (discussing ldquotension among the circuitsrdquo)

15

employees from bringing claims for equitable relief forconstitutional injuries in federal district court Athirdmdashthe Ninth Circuitmdashhas expressly agreed withthe Third and DC Circuits and has held that at least in some circumstances federal employees may bringconstitutional claims for equitable relief in district court

In Hubbard v EPA 809 F2d 1 (DC Cir 1986) adetective with the DC Police Department alleged thathe had been denied a position with the EnvironmentalProtection Agency because of statements he made tothe press about an investigation into illegal drug useby members of Congress Under the CSRA Hubbardcould appeal the decisionmdashincluding his constitutionalclaims under the First Amendmentmdashto OPM and file a petition with the Office of Special Counsel Hubbardbrought a Bivens action in district court for damages aswell as a claim for injunctive relief Id at 1 3 8

Relying on this Courtrsquos decision in Bush v Lucas the DC Circuit held that Hubbardrsquos Bivens claim for damages was precluded by the CSRArsquos comprehensiveremedial scheme In Bush this Court rejected a federalemployeersquos Bivens claim for damages because theldquocomprehensive procedural and substantive provisionsrdquoof the CSRA are ldquospecial factors counselling hesitationin the absence of affirmative action by CongressrdquoBush 462 US at 377 (quoting Carlson v Green 446 US 14 18-19 (1980)) However the DC Circuit ruledthat the CSRA did not preclude Hubbardrsquos claim forequitable relief because to eliminate courtsrsquo jurisdictionover equitable relief for constitutional violationsCongress must do so explicitly and the CSRA did notcontain any provision explicitly eliminating federal

16

court jurisdiction The DC Circuit explained thedifference

The courtsrsquo power to impose equitable remediesagainst agencies is broader than its power toimpose legal remedies against individualsBivens actions are a recent judicial creation and as Carlson v Green made clear comparativelyeasy for Congress to preempt The courtsrsquo power to enjoin unconstitutional acts by the government however is inherent in the Constitution itself see Marbury v Madison 5 US (1 Cranch) 137 LEd 60 (1803) AlthoughCongress may limit this power see Ex Parte McCardle 74 US (7 Wall) 506 19 LEd 264(1869) CSRA did not explicitly limit ourjurisdiction to enjoin unconstitutional personnelactions by federal agencies

Hubbard 809 F2d at 11 n15 The Bivens portion of the Hubbard decision was

reheard and affirmed en banc in Spagnola v Mathis 859 F2d 223 (DC Cir 1988) Although the en banccourt did not rehear the question whether the CSRAalso precludes constitutional claims for equitable reliefit made clear that its decision with regard to theBivens claim left the equitable claim intact ldquo[T]imeand again this court has affirmed the right of civil servants to seek equitable relief against their supervisors and the agency itself in vindication oftheir constitutional rightsrdquo Id at 229-30

In Mitchum v Hurt 73 F3d at 36 the Third Circuit joined the DC Circuit in holding that theCSRA did not preclude district court jurisdiction over

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

ix

Webster v Doe 486 US 592 (1988) 12 18 23 24 27

Whitfield v Department of the Interior 2008 MSPB LEXIS 6910 (MSPB Dec 232008) 29

Whitman v Department of Transportation 547 US 512 (2006) 23 26

Ex Parte Young 209 US 123 (1908) 17 26

STATUTES

Civil Service Reform Act 92 Stat 1111 et seq 2 4 8 11

5 USC sect 702 3 9

5 USC sect 3328 passim

5 USC sectsect 7511-7514 11

5 USC sect 7512(1) 8

5 USC sect 7513(a) 11 27

5 USC sect 7513(d) 8 27

5 USC sect 7701(a) 8

5 USC sect 7703(b)(1) 11

x

28 USC sect 1254 1

28 USC sect 1331 9 26

28 USC sect 2201 3 9

28 USC sect 2202 3 9

50 USC app sect 453 1 4

REGULATIONS AND PROCLAMATION

5 CFR sect 300706(c) 28 29

Proclamation No 4771

28 USC sect 1295(a)(9) 29

28 USC sect 1343 9

28 USC sect 1346 9

50 USC app sect 462(a) 4

50 USC app sect 465(a) 4

5 CFR sect 300707 5

45 Fed Reg 45247 (July 2 1980) 4

xi

OTHER SOURCE

Brief for Respondents Whitman v Department ofTransportation 547 US 512 (2006)(No 04-1131) 2005 WL 2738321 23

PETITION FOR A WRIT OF CERTIORARI Petitioners Michael B Elgin Aaron Lawson Henry

Tucker and Christon Colby respectfully petition for awrit of certiorari to review the judgment of the UnitedStates Court of Appeals for the First Circuit

OPINIONS BELOW The opinion of the United States Court of Appeals

for the First Circuit (Pet App 1a) is published at 641F3d 6 The district courtrsquos decision grantingPetitionersrsquo motion for partial summary judgment anddenying in part and granting in part Respondentsrsquomotion to dismiss (Pet App 65a) is published at 594 FSupp 2d 133 The district courtrsquos decision grantingRespondentsrsquo motion for reconsideration (Pet App39a) is published at 697 F Supp 2d 187

JURISDICTION The judgment of the court of appeals was entered

on April 8 2011 Pet App 2a This Court hasjurisdiction under 28 USC sect 1254(1)

STATUTES INVOLVED 5 USC sect 3328 bars men who fail to register with

the Selective Service from federal agency employmentIn full it provides

(a) An individualmdash (1) who was born after December 31 1959

and is or was required to register under section3 of the Military Selective Service Act (50 AppUSC 453) and

(2) who is not so registered or knowingly andwillfully did not so register before the requirement terminated or became inapplicable to the individual shall be ineligible for

2

appointment to a position in an Executive agency (b) The Office of Personnel Management inconsultation with the Director of the Selective Service System shall prescribe regulations tocarry out this section Such regulations shallinclude provisions prescribing procedures for theadjudication of determinations of whether afailure to register was knowing and willful Suchprocedures shall require that such a determination may not be made if the individualconcerned shows by a preponderance of theevidence that the failure to register was neitherknowing nor willful Such procedures mayprovide that determinations of eligibility underthe requirements of this section shall beadjudicated by the Executive agency making theappointment for which the eligibility is determined The Civil Service Reform Act 92 Stat 1111 et seq

outlines administrative procedures available to certainfederal employees for certain adverse employmentactions Relevant portions of the Civil Service ReformAct are reproduced in the Appendix at 108a

STATEMENT OF THE CASE Petitioners Michael B Elgin Aaron Lawson Henry

Tucker and Christon Colby are former federalemployees Each was terminated or constructivelyterminated from his federal employment under 5USC sect 3328 which imposes a lifetime bar on federalexecutive agency employment on men who do not

3

register with the Selective Service between the ages of18 and 26 First Am Compl para 2

Elgin appealed his termination to the MeritSystems Protection Board (MSPB) arguing that 5USC sect 3328 was a Bill of Attainder and that he wasdiscriminated against on the basis of sex The MSPBdismissed Elginrsquos appeal for lack of jurisdiction PetApp 95a 104a1

Elgin Lawson Tucker and Colby then brought thisaction in district court under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 againsttheir former employers the United States the USDepartment of the Treasury and the US Departmentof the Interior First Am Compl para 5 Petitionerschallenged 5 USC sect 3328 as a Bill of Attainder and asviolative of their constitutional rights to equalprotection on the basis of sex seeking injunctive anddeclaratory relief Id para 4 The district court initiallyheld that 5 USC sect 3328 was a Bill of Attainder butdid not violate Petitionersrsquo right to equal protectionand granted Petitionersrsquo partial motion for summaryjudgment Pet App 66a-67a On reconsideration thedistrict court addressed for the first time whether it had jurisdiction over Petitionersrsquo claims and held thatit did Id at 51a However the district court reversed its holding on the merits ruling that 5 USC sect 3328was not a Bill of Attainder Id at 63a-64a

1The unpublished decision of the MSPB is reproduced in theAppendix at 94a It is also available at Elgin v Department of theTreasury No PH-0752-08-0004-I-1 2007 MSPB LEXIS 7502 (MSPB Nov 16 2007)

4

A divided panel of the Court of Appeals for the FirstCircuit vacated the district courtrsquos decision and remanded for entry of a new judgment denyingPetitioners relief for lack of subject matter jurisdictionId at 15a Acknowledging a circuit split (id at 12a n4) the panel majority held that the district courtlacked jurisdiction to review Petitionersrsquo claimsbecause the Civil Service Reform Act (CSRA) 92 Stat1111 et seq impliedly precludes federal district courtsfrom granting equitable relief for constitutional injuries Id at 12a Because the CSRA does not explicitly preclude such relief the concurring judgewould have found that the district court had jurisdiction Id at 18a

A Factual Background The Military Selective Service Act requires all

males to register with the Selective Service betweenthe ages of 18 and 26 upon proclamation of thePresident 50 USC app sect 453 Since 1980 apresidential proclamation has required registrationand all persons are by statute ldquodeemedrdquo to knowabout the registration requirement Proclamation No4771 45 Fed Reg 45247 (July 2 1980) 50 USC appsect 465(a) Failure to register is a crime punishable bya fine of up to $10000 and up to five years in prisonMen can be prosecuted until their 31st birthdays Id sect 462(a) In addition in 1986 Congress enacted 5USC sect 3328 which further penalizes men whoknowingly and willfully fail to register by imposing alifetime bar on federal executive agency employmentRegulations provide for the termination of employeeswho fail to register and the Office of PersonnelManagement (OPM) is responsible for determining

5

whether the failure to register was knowing andwillful 5 CFR sect 300707

The Selective Service System has no record ofregistration for any of the Petitioners Three ofthemmdashElgin Tucker and Colbymdashdid not becomeaware of the registration requirement until after their26th birthdays when it was too late to register ThefourthmdashLawsonmdashknew about the requirement andbelieves that he registered but the Selective ServiceSystem does not have any record of his registrationElgin Lawson and Colby sought determinations thattheir failure to register was not knowing and willfulbut OPM denied their claims

Petitioners are former employees of federal agencies Elgin Lawson and Colby were terminatedsolely under 5 USC sect 3328 because they failed toregister Tucker resigned from one agency when hisfailure to register became apparent and his offer ofemployment from a second agency was withdrawnsolely because he failed to register

1 Michael B Elgin was first hired by the InternalRevenue Service (IRS) an agency of the TreasuryDepartment in 1991 as a low-level data transcriberPet App 95a Over the next sixteen years Elginconsistently received glowing evaluations and waspromoted to positions with increasing responsibilityFirst Am Compl para 31 As part of a routine backgroundinvestigation when he was offered a promotion in 2002the IRS learned that Elgin had not registered with theSelective Service and passed that information on toOPM Id parapara 32-34 Nevertheless Elgin was promotedId para 33

6

In 2003 OPM determined that Elgin was ineligiblefor federal employment under 5 USC sect 3328 becausehe had failed to register with the Selective ServiceElgin sought a waiver that would permit his employment arguing that his failure to register hadnot been knowing and willful because he had not beenaware of the registration requirement at age 18 hewas struggling to complete high school and support hisson while being virtually homeless Id parapara 29-30 OPMdenied his request for a waiver in 2006 BothMassachusetts Senators and the IRS asked OPM to reconsider explaining that Elgin was a valued IRSemployee whose termination would negatively affectthe agency and that Elginrsquos failure to register wasinadvertent Id para 34 OPM denied the Senatorsrsquo and IRSrsquos request Id para 35 Elgin was terminated on July 27 2007 Id para 36

2 Aaron Lawson has been a wildfire fighter since1997 first with the California Department of Forestryand later with the US Forest Service Id para 40 He isa specialist in directing helicopter crews fighting forestfires Id para 41 The Government has spent tens ofthousands of dollars training him to do this dangerouswork Id In 2003 the Bureau of Land Management adivision of the Interior Department in conjunctionwith the US Forest Service hired him as a wildfire fighter helicopter captain Id para 40 After he was hiredLawson learned that the Selective Service has no record of his registration Id Lawson believes that he completed the registration forms at his local post officearound the time of his 18th birthday Id para 39 TheBureau of Land Management and US Forest Servicerequested a waiver from OPM that would make

7

Lawson eligible for employment Id para 42 OPM deniedthe waiver Lawson was terminated Id

3 In 2007 Henry Tucker was a FinancialInstitution Specialist at the Federal Deposit InsuranceCorporation where he had been employed for 17 yearsId para 44 He had never been aware of the requirementto register with the Selective Service Tuckerrsquos motherleft him when he was 16 and he moved frequently as a teenager Id para 43 In December 2007 the FederalDeposit Insurance Corporation learned that Tuckerhad not registered with the Selective Service andreferred the matter to OPM Id para 45

Fearing that he would be fired Tucker resigned andapplied for a position with the National Institutes ofHealth which offered Tucker a job as a BudgetAnalyst Id para 46 It withdrew the offer however afterlearning that Tucker had not registered with theSelective Service Id

4 Christon Colby began working at the IRS in 2001as a temporary employee and was hired permanentlyin 2002 Id parapara 49-52 Colby received consistentlyexcellent performance reviews and was promoted topositions with increasing responsibility Id para 53 In2003 the IRS informed Colby that it had become awareof his failure to register with the Selective Service Id para 54 Colby sought a waiver from OPM on the basisthat his failure to register was not knowing and willfulColby explained that he had moved out of his parentsrsquohome at age 18 and was unaware of the registrationrequirement until he was too old to register Id parapara 47-48 55

8

In 2006 OPM declined to issue a waiver makinghim eligible for employment Id para 57 Colbyrsquossupervisor at the IRS appealed the determinationwithin OPM explaining that Colby was ldquoan extremelyvaluable and integralrdquo employee and noting that theIRS had invested $25000 in training Colby Id para 58OPM affirmed its decision not to issue Colby a waiverand Colby was terminated on August 3 2007 Id parapara 59-60

B Proceedings Before the Merit SystemsProtection Board and the District Court

The Civil Service Reform Act (CSRA) 92 Stat 1111 et seq provides that non-exempt federal employees(such as Petitioners had been) may challenge theirterminations before the Merit Systems ProtectionBoard (MSPB) under certain conditions 5 USCsectsect 7701(a) 7512(1) 7513(d) Shortly after beingterminated under 5 USC sect 3328 Petitioner Elginappealed the decision to the MSPB arguing that 5USC sect 3328 is a Bill of Attainder and that he wassubject to unconstitutional sex-based discriminationbecause the Selective Service registration requirementonly applies to men On November 16 2007 at theTreasury Departmentrsquos urging the MSPB dismissedElginrsquos appeal for lack of jurisdiction Pet App 100a-01a The MSPB explained that it lacked jurisdictionover appeals where employees were terminated underabsolute statutory prohibitions such as 5 USCsect 3328 Id The MSPB also held that it lacked authorityto rule on the constitutionality of a statute and notedthat to the extent it could review any constitutional ordiscrimination claims it did not have jurisdiction over

9

those claims without an explicit grant of jurisdictionwhich was absent here Id at 101a-02a

After Elginrsquos MSPB appeal was dismissed onDecember 28 2007 Elgin joined by Lawson Tuckerand Colby brought this action challenging theconstitutionality of 5 USC sect 3328 in the UnitedStates District Court for the District of Massachusetts against the United States of America the USDepartment of the Treasury and the US Departmentof the Interior (collectively the Government) First AmCompl para 1 Petitioners contended that 5 USC sect 3328is a Bill of Attainder prohibited by Article I Section 9Clause 3 of the Constitution because it legislativelyimposes punishmentmdashthe lifetime bar on federalemploymentmdashon a specific group of men for theirirreversible failure to register Petitioners also contended that because the Selective Service registration requirement and employment bar appliesto men and not women it unlawfully discriminatesunder the equal protection component of the FifthAmendment Id parapara 1 4 Petitioners sought declaratoryand injunctive relief including reinstatement Id para 4The claims were brought under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 andjurisdiction was premised on 28 USC sectsect 1331 1343and 1346 First Am Compl para 5 Petitioners amendedthe complaint in January 2008 to add a class actionclaim Id para 1

The Government moved to dismiss arguing thatPetitionersrsquo claims failed on the merits Pet App 66aThe Government did not at that time contest the district courtrsquos jurisdiction Petitioners responded by

10

opposing the motion to dismiss as to the equalprotection claim and seeking partial summaryjudgment as to liability on the Bill of Attainder claimAfter a hearing the district court granted Petitionersrsquomotion for partial summary judgment holding that 5USC sect 3328 was a Bill of Attainder and granted theGovernmentrsquos motion to dismiss in part holding thatthe Selective Service scheme did not violate Petitionersrsquo rights to equal protection Id at 66a-67a

Petitioners then filed a motion for class certification and sought a preliminary injunction reinstatingPetitioners The Government filed a motion for reconsideration of the district courtrsquos grant of summaryjudgment on the Bill of Attainder claim contendingboth that the claim failed on the merits and arguing forthe first time that the district court did not have subject matter jurisdiction over the claim because theCSRA precludes district court review of federalemployment decisions Id at 41a-42a The district court held that it did have jurisdiction but granted themotion for reconsideration because it determined on reexamination that 5 USC sect 3328 was not a Bill ofAttainder Id at 51a 63a-64a

C Proceedings Before the First Circuit Petitioners appealed the district courtrsquos decisions

dismissing the equal protection claim and granting themotion for reconsideration on the Bill of Attainder claim to the United States Court of Appeals for theFirst Circuit The panel agreed that Petitionersrsquo claimsshould be dismissed but was divided on the questionwhether the district court had jurisdiction overPetitionersrsquo constitutional claims for equitable reliefId at 15a

11

The majority agreed with the Government that theCSRA provides the exclusive remedy for the termination or constructive termination of federal employees even for facial constitutional challenges likethis one 92 Stat 1111 et seq (codified as amended invarious sections of 5 USC) The CSRA permits non-exempt federal employees such as Petitioners toappeal their terminations to the MSPB if they wereremoved ldquofor such cause as will promote the efficiencyof the servicerdquo 5 USC sect 7513(a) see generally idsectsect 7511-7514 Employees can then appeal the MSPBdecision to the United States Court of Appeals for theFederal Circuit Id sect 7703(b)(1) As the majority notedthis Court has held that though the CSRA does notexplicitly state it is the exclusive remedy itscomprehensiveness generally precludes ordinarydistrict court review of federal employee removals PetApp 6a (citing United States v Fausto 484 US 439 443-55 (1988) and Bush v Lucas 462 US 367 368 (1983))

The majority held that Petitionersrsquo terminationswhich were based solely on 5 USC sect 3328 werenonetheless terminations made for ldquoefficiency of theservicerdquo under 5 USC sect 7513(a) and were thereforesubject to the review procedures outlined by the CSRAPet App 7a-9a Noting the circuit split on thequestion the majority held that the CSRA is theexclusive remedy even when the employee brings onlyconstitutional claims for equitable relief Id at 11a-12a amp 12a n4 Therefore the district court lacked jurisdiction over Petitionersrsquo claims

The majority recognized however that its conclusion might be different if the CSRA provided no

12

remedy for Petitionersrsquo constitutional claims Id at 13a Though the majority did not dispute that theMSPB was powerless to strike down a statute asunconstitutional the majority reasoned that theFederal Circuit had the authority to do so on appealfrom the MSPB Id at 14a Therefore according to themajority the merits of Petitionersrsquo constitutionalclaims could be aired and decided at the Federal Circuit if not the MSPB

Petitioners had argued that their constitutionalclaims could not have been heard in the Federal Circuit because the Federal Circuit has itself repeatedly stated that its jurisdiction on appeal fromthe MSPB is coextensive with the jurisdiction of theMSPB which would not have had jurisdiction overPetitionersrsquo claims The majority disagreed reasoningthat the Federal Circuit had never addressed the question of its jurisdiction under these precisecircumstances and had posited that it would berequired to entertain constitutional claims seekingequitable relief under Webster v Doe 486 US 592 (1988) Pet App 14a (citing Riggin v Office of SenateFair Emprsquot Practices 61 F3d 1563 1570 (Fed Cir 1995) and Brockmann v Deprsquot of the Air Force 27 F3d 544 546-47 (Fed Cir 1994)) Even if the FederalCircuit would have held that it lacked jurisdiction toreview Petitionersrsquo constitutional claims the majorityexplained Petitioners could still have soughtadjudication of their claims on certiorari in this CourtId

Judge Stahl disagreed that the district court lackedjurisdiction but would have rejected Petitionersrsquo claimson the merits Id at 15a Judge Stahl sided with the

13

Third Ninth and DC Circuits and held that because the CSRA does not explicitly state that it prohibitsemployees from bringing constitutional challenges forequitable relief in district court it does not precludesuch actions Id at 23a-24a

Judge Stahl disagreed with the majority thatPetitionersrsquo constitutional claims could have been addressed in the Federal Circuit He explained that theFederal Circuitrsquos jurisdiction has never exceeded thescope of the MSPBrsquos jurisdiction on review of appealsfrom the MSPB even when the appellant assertedconstitutional claims beyond the MSPBrsquos jurisdictionId at 21a-22a (citing Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) (unpublished)) Judge Stahlnoted that in Brockmann v Department of the Air Force relied on by the majority the Federal Circuithypothesized about the possibility of reviewingconstitutional claims but did not actually state that itwould or could do so Id (discussing Brockmann 27 F3d at 546-47) Therefore Judge Stahl reasoned thebetter reading of the Federal Circuitrsquos decisions wasthat it would not have had jurisdiction and the CSRAprocess would not have provided any review ofPetitionersrsquo constitutional claims Id at 22a

14

REASONS FOR GRANTING THE WRIT I This Court Should Resolve the Deep and Enduring

Circuit Split on the Question Whether the CivilService Reform Act Impliedly Precludes FederalDistrict Courts From Granting Equitable Relief onthe Constitutional Claims of Federal Employees As the First Circuit acknowledged this case raises

a question on which there is a deep and longstandingcircuit split whether the CSRA impliedly precludesfederal district courts from exercising jurisdiction overthe constitutional claims of federal employees seekinginjunctive relief Id at 12a n4 24a-25a The Third and DC Circuits have held that the CSRA does not preclude district court jurisdiction over equitableconstitutional claims the First Second and Tenth Circuits have held that it does and four other circuits have recognized the split2

A The Circuit Split 1 Two circuitsmdashthe Third and DC Circuitsmdashhave

held that the CSRA does not preclude federal

2See Am Fedrsquon of Govrsquot Emps Local 1 v Stone 502 F3d 1027 1037-39 (9th Cir 2007) (discussing circuit split) Dotson v Griesa 398 F3d 156 179 (2d Cir 2005) cert denied 547 US 1191 (2006)(ldquoThe circuits are divided as to whether equitable relief such asreinstatement is available to federal employees notwithstandingtheir general agreement that the CSRA precludes Bivens claims for damagesrdquo) Hardison v Cohen 375 F3d 1262 1266 (11th Cir2004) (ldquoSeveral of our sister circuits have differed on whetherequitable relief is precluded by the presence of a statutoryremedial schemerdquo) Paige v Cisneros 91 F3d 40 44 (7th Cir 1996) (discussing circuit split) Mitchum v Hurt 73 F3d 30 34 (3d Cir 1995) (discussing circuit split) Bryant v Cheney 924 F2d 525 525 (4th Cir 1991) (discussing ldquotension among the circuitsrdquo)

15

employees from bringing claims for equitable relief forconstitutional injuries in federal district court Athirdmdashthe Ninth Circuitmdashhas expressly agreed withthe Third and DC Circuits and has held that at least in some circumstances federal employees may bringconstitutional claims for equitable relief in district court

In Hubbard v EPA 809 F2d 1 (DC Cir 1986) adetective with the DC Police Department alleged thathe had been denied a position with the EnvironmentalProtection Agency because of statements he made tothe press about an investigation into illegal drug useby members of Congress Under the CSRA Hubbardcould appeal the decisionmdashincluding his constitutionalclaims under the First Amendmentmdashto OPM and file a petition with the Office of Special Counsel Hubbardbrought a Bivens action in district court for damages aswell as a claim for injunctive relief Id at 1 3 8

Relying on this Courtrsquos decision in Bush v Lucas the DC Circuit held that Hubbardrsquos Bivens claim for damages was precluded by the CSRArsquos comprehensiveremedial scheme In Bush this Court rejected a federalemployeersquos Bivens claim for damages because theldquocomprehensive procedural and substantive provisionsrdquoof the CSRA are ldquospecial factors counselling hesitationin the absence of affirmative action by CongressrdquoBush 462 US at 377 (quoting Carlson v Green 446 US 14 18-19 (1980)) However the DC Circuit ruledthat the CSRA did not preclude Hubbardrsquos claim forequitable relief because to eliminate courtsrsquo jurisdictionover equitable relief for constitutional violationsCongress must do so explicitly and the CSRA did notcontain any provision explicitly eliminating federal

16

court jurisdiction The DC Circuit explained thedifference

The courtsrsquo power to impose equitable remediesagainst agencies is broader than its power toimpose legal remedies against individualsBivens actions are a recent judicial creation and as Carlson v Green made clear comparativelyeasy for Congress to preempt The courtsrsquo power to enjoin unconstitutional acts by the government however is inherent in the Constitution itself see Marbury v Madison 5 US (1 Cranch) 137 LEd 60 (1803) AlthoughCongress may limit this power see Ex Parte McCardle 74 US (7 Wall) 506 19 LEd 264(1869) CSRA did not explicitly limit ourjurisdiction to enjoin unconstitutional personnelactions by federal agencies

Hubbard 809 F2d at 11 n15 The Bivens portion of the Hubbard decision was

reheard and affirmed en banc in Spagnola v Mathis 859 F2d 223 (DC Cir 1988) Although the en banccourt did not rehear the question whether the CSRAalso precludes constitutional claims for equitable reliefit made clear that its decision with regard to theBivens claim left the equitable claim intact ldquo[T]imeand again this court has affirmed the right of civil servants to seek equitable relief against their supervisors and the agency itself in vindication oftheir constitutional rightsrdquo Id at 229-30

In Mitchum v Hurt 73 F3d at 36 the Third Circuit joined the DC Circuit in holding that theCSRA did not preclude district court jurisdiction over

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

x

28 USC sect 1254 1

28 USC sect 1331 9 26

28 USC sect 2201 3 9

28 USC sect 2202 3 9

50 USC app sect 453 1 4

REGULATIONS AND PROCLAMATION

5 CFR sect 300706(c) 28 29

Proclamation No 4771

28 USC sect 1295(a)(9) 29

28 USC sect 1343 9

28 USC sect 1346 9

50 USC app sect 462(a) 4

50 USC app sect 465(a) 4

5 CFR sect 300707 5

45 Fed Reg 45247 (July 2 1980) 4

xi

OTHER SOURCE

Brief for Respondents Whitman v Department ofTransportation 547 US 512 (2006)(No 04-1131) 2005 WL 2738321 23

PETITION FOR A WRIT OF CERTIORARI Petitioners Michael B Elgin Aaron Lawson Henry

Tucker and Christon Colby respectfully petition for awrit of certiorari to review the judgment of the UnitedStates Court of Appeals for the First Circuit

OPINIONS BELOW The opinion of the United States Court of Appeals

for the First Circuit (Pet App 1a) is published at 641F3d 6 The district courtrsquos decision grantingPetitionersrsquo motion for partial summary judgment anddenying in part and granting in part Respondentsrsquomotion to dismiss (Pet App 65a) is published at 594 FSupp 2d 133 The district courtrsquos decision grantingRespondentsrsquo motion for reconsideration (Pet App39a) is published at 697 F Supp 2d 187

JURISDICTION The judgment of the court of appeals was entered

on April 8 2011 Pet App 2a This Court hasjurisdiction under 28 USC sect 1254(1)

STATUTES INVOLVED 5 USC sect 3328 bars men who fail to register with

the Selective Service from federal agency employmentIn full it provides

(a) An individualmdash (1) who was born after December 31 1959

and is or was required to register under section3 of the Military Selective Service Act (50 AppUSC 453) and

(2) who is not so registered or knowingly andwillfully did not so register before the requirement terminated or became inapplicable to the individual shall be ineligible for

2

appointment to a position in an Executive agency (b) The Office of Personnel Management inconsultation with the Director of the Selective Service System shall prescribe regulations tocarry out this section Such regulations shallinclude provisions prescribing procedures for theadjudication of determinations of whether afailure to register was knowing and willful Suchprocedures shall require that such a determination may not be made if the individualconcerned shows by a preponderance of theevidence that the failure to register was neitherknowing nor willful Such procedures mayprovide that determinations of eligibility underthe requirements of this section shall beadjudicated by the Executive agency making theappointment for which the eligibility is determined The Civil Service Reform Act 92 Stat 1111 et seq

outlines administrative procedures available to certainfederal employees for certain adverse employmentactions Relevant portions of the Civil Service ReformAct are reproduced in the Appendix at 108a

STATEMENT OF THE CASE Petitioners Michael B Elgin Aaron Lawson Henry

Tucker and Christon Colby are former federalemployees Each was terminated or constructivelyterminated from his federal employment under 5USC sect 3328 which imposes a lifetime bar on federalexecutive agency employment on men who do not

3

register with the Selective Service between the ages of18 and 26 First Am Compl para 2

Elgin appealed his termination to the MeritSystems Protection Board (MSPB) arguing that 5USC sect 3328 was a Bill of Attainder and that he wasdiscriminated against on the basis of sex The MSPBdismissed Elginrsquos appeal for lack of jurisdiction PetApp 95a 104a1

Elgin Lawson Tucker and Colby then brought thisaction in district court under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 againsttheir former employers the United States the USDepartment of the Treasury and the US Departmentof the Interior First Am Compl para 5 Petitionerschallenged 5 USC sect 3328 as a Bill of Attainder and asviolative of their constitutional rights to equalprotection on the basis of sex seeking injunctive anddeclaratory relief Id para 4 The district court initiallyheld that 5 USC sect 3328 was a Bill of Attainder butdid not violate Petitionersrsquo right to equal protectionand granted Petitionersrsquo partial motion for summaryjudgment Pet App 66a-67a On reconsideration thedistrict court addressed for the first time whether it had jurisdiction over Petitionersrsquo claims and held thatit did Id at 51a However the district court reversed its holding on the merits ruling that 5 USC sect 3328was not a Bill of Attainder Id at 63a-64a

1The unpublished decision of the MSPB is reproduced in theAppendix at 94a It is also available at Elgin v Department of theTreasury No PH-0752-08-0004-I-1 2007 MSPB LEXIS 7502 (MSPB Nov 16 2007)

4

A divided panel of the Court of Appeals for the FirstCircuit vacated the district courtrsquos decision and remanded for entry of a new judgment denyingPetitioners relief for lack of subject matter jurisdictionId at 15a Acknowledging a circuit split (id at 12a n4) the panel majority held that the district courtlacked jurisdiction to review Petitionersrsquo claimsbecause the Civil Service Reform Act (CSRA) 92 Stat1111 et seq impliedly precludes federal district courtsfrom granting equitable relief for constitutional injuries Id at 12a Because the CSRA does not explicitly preclude such relief the concurring judgewould have found that the district court had jurisdiction Id at 18a

A Factual Background The Military Selective Service Act requires all

males to register with the Selective Service betweenthe ages of 18 and 26 upon proclamation of thePresident 50 USC app sect 453 Since 1980 apresidential proclamation has required registrationand all persons are by statute ldquodeemedrdquo to knowabout the registration requirement Proclamation No4771 45 Fed Reg 45247 (July 2 1980) 50 USC appsect 465(a) Failure to register is a crime punishable bya fine of up to $10000 and up to five years in prisonMen can be prosecuted until their 31st birthdays Id sect 462(a) In addition in 1986 Congress enacted 5USC sect 3328 which further penalizes men whoknowingly and willfully fail to register by imposing alifetime bar on federal executive agency employmentRegulations provide for the termination of employeeswho fail to register and the Office of PersonnelManagement (OPM) is responsible for determining

5

whether the failure to register was knowing andwillful 5 CFR sect 300707

The Selective Service System has no record ofregistration for any of the Petitioners Three ofthemmdashElgin Tucker and Colbymdashdid not becomeaware of the registration requirement until after their26th birthdays when it was too late to register ThefourthmdashLawsonmdashknew about the requirement andbelieves that he registered but the Selective ServiceSystem does not have any record of his registrationElgin Lawson and Colby sought determinations thattheir failure to register was not knowing and willfulbut OPM denied their claims

Petitioners are former employees of federal agencies Elgin Lawson and Colby were terminatedsolely under 5 USC sect 3328 because they failed toregister Tucker resigned from one agency when hisfailure to register became apparent and his offer ofemployment from a second agency was withdrawnsolely because he failed to register

1 Michael B Elgin was first hired by the InternalRevenue Service (IRS) an agency of the TreasuryDepartment in 1991 as a low-level data transcriberPet App 95a Over the next sixteen years Elginconsistently received glowing evaluations and waspromoted to positions with increasing responsibilityFirst Am Compl para 31 As part of a routine backgroundinvestigation when he was offered a promotion in 2002the IRS learned that Elgin had not registered with theSelective Service and passed that information on toOPM Id parapara 32-34 Nevertheless Elgin was promotedId para 33

6

In 2003 OPM determined that Elgin was ineligiblefor federal employment under 5 USC sect 3328 becausehe had failed to register with the Selective ServiceElgin sought a waiver that would permit his employment arguing that his failure to register hadnot been knowing and willful because he had not beenaware of the registration requirement at age 18 hewas struggling to complete high school and support hisson while being virtually homeless Id parapara 29-30 OPMdenied his request for a waiver in 2006 BothMassachusetts Senators and the IRS asked OPM to reconsider explaining that Elgin was a valued IRSemployee whose termination would negatively affectthe agency and that Elginrsquos failure to register wasinadvertent Id para 34 OPM denied the Senatorsrsquo and IRSrsquos request Id para 35 Elgin was terminated on July 27 2007 Id para 36

2 Aaron Lawson has been a wildfire fighter since1997 first with the California Department of Forestryand later with the US Forest Service Id para 40 He isa specialist in directing helicopter crews fighting forestfires Id para 41 The Government has spent tens ofthousands of dollars training him to do this dangerouswork Id In 2003 the Bureau of Land Management adivision of the Interior Department in conjunctionwith the US Forest Service hired him as a wildfire fighter helicopter captain Id para 40 After he was hiredLawson learned that the Selective Service has no record of his registration Id Lawson believes that he completed the registration forms at his local post officearound the time of his 18th birthday Id para 39 TheBureau of Land Management and US Forest Servicerequested a waiver from OPM that would make

7

Lawson eligible for employment Id para 42 OPM deniedthe waiver Lawson was terminated Id

3 In 2007 Henry Tucker was a FinancialInstitution Specialist at the Federal Deposit InsuranceCorporation where he had been employed for 17 yearsId para 44 He had never been aware of the requirementto register with the Selective Service Tuckerrsquos motherleft him when he was 16 and he moved frequently as a teenager Id para 43 In December 2007 the FederalDeposit Insurance Corporation learned that Tuckerhad not registered with the Selective Service andreferred the matter to OPM Id para 45

Fearing that he would be fired Tucker resigned andapplied for a position with the National Institutes ofHealth which offered Tucker a job as a BudgetAnalyst Id para 46 It withdrew the offer however afterlearning that Tucker had not registered with theSelective Service Id

4 Christon Colby began working at the IRS in 2001as a temporary employee and was hired permanentlyin 2002 Id parapara 49-52 Colby received consistentlyexcellent performance reviews and was promoted topositions with increasing responsibility Id para 53 In2003 the IRS informed Colby that it had become awareof his failure to register with the Selective Service Id para 54 Colby sought a waiver from OPM on the basisthat his failure to register was not knowing and willfulColby explained that he had moved out of his parentsrsquohome at age 18 and was unaware of the registrationrequirement until he was too old to register Id parapara 47-48 55

8

In 2006 OPM declined to issue a waiver makinghim eligible for employment Id para 57 Colbyrsquossupervisor at the IRS appealed the determinationwithin OPM explaining that Colby was ldquoan extremelyvaluable and integralrdquo employee and noting that theIRS had invested $25000 in training Colby Id para 58OPM affirmed its decision not to issue Colby a waiverand Colby was terminated on August 3 2007 Id parapara 59-60

B Proceedings Before the Merit SystemsProtection Board and the District Court

The Civil Service Reform Act (CSRA) 92 Stat 1111 et seq provides that non-exempt federal employees(such as Petitioners had been) may challenge theirterminations before the Merit Systems ProtectionBoard (MSPB) under certain conditions 5 USCsectsect 7701(a) 7512(1) 7513(d) Shortly after beingterminated under 5 USC sect 3328 Petitioner Elginappealed the decision to the MSPB arguing that 5USC sect 3328 is a Bill of Attainder and that he wassubject to unconstitutional sex-based discriminationbecause the Selective Service registration requirementonly applies to men On November 16 2007 at theTreasury Departmentrsquos urging the MSPB dismissedElginrsquos appeal for lack of jurisdiction Pet App 100a-01a The MSPB explained that it lacked jurisdictionover appeals where employees were terminated underabsolute statutory prohibitions such as 5 USCsect 3328 Id The MSPB also held that it lacked authorityto rule on the constitutionality of a statute and notedthat to the extent it could review any constitutional ordiscrimination claims it did not have jurisdiction over

9

those claims without an explicit grant of jurisdictionwhich was absent here Id at 101a-02a

After Elginrsquos MSPB appeal was dismissed onDecember 28 2007 Elgin joined by Lawson Tuckerand Colby brought this action challenging theconstitutionality of 5 USC sect 3328 in the UnitedStates District Court for the District of Massachusetts against the United States of America the USDepartment of the Treasury and the US Departmentof the Interior (collectively the Government) First AmCompl para 1 Petitioners contended that 5 USC sect 3328is a Bill of Attainder prohibited by Article I Section 9Clause 3 of the Constitution because it legislativelyimposes punishmentmdashthe lifetime bar on federalemploymentmdashon a specific group of men for theirirreversible failure to register Petitioners also contended that because the Selective Service registration requirement and employment bar appliesto men and not women it unlawfully discriminatesunder the equal protection component of the FifthAmendment Id parapara 1 4 Petitioners sought declaratoryand injunctive relief including reinstatement Id para 4The claims were brought under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 andjurisdiction was premised on 28 USC sectsect 1331 1343and 1346 First Am Compl para 5 Petitioners amendedthe complaint in January 2008 to add a class actionclaim Id para 1

The Government moved to dismiss arguing thatPetitionersrsquo claims failed on the merits Pet App 66aThe Government did not at that time contest the district courtrsquos jurisdiction Petitioners responded by

10

opposing the motion to dismiss as to the equalprotection claim and seeking partial summaryjudgment as to liability on the Bill of Attainder claimAfter a hearing the district court granted Petitionersrsquomotion for partial summary judgment holding that 5USC sect 3328 was a Bill of Attainder and granted theGovernmentrsquos motion to dismiss in part holding thatthe Selective Service scheme did not violate Petitionersrsquo rights to equal protection Id at 66a-67a

Petitioners then filed a motion for class certification and sought a preliminary injunction reinstatingPetitioners The Government filed a motion for reconsideration of the district courtrsquos grant of summaryjudgment on the Bill of Attainder claim contendingboth that the claim failed on the merits and arguing forthe first time that the district court did not have subject matter jurisdiction over the claim because theCSRA precludes district court review of federalemployment decisions Id at 41a-42a The district court held that it did have jurisdiction but granted themotion for reconsideration because it determined on reexamination that 5 USC sect 3328 was not a Bill ofAttainder Id at 51a 63a-64a

C Proceedings Before the First Circuit Petitioners appealed the district courtrsquos decisions

dismissing the equal protection claim and granting themotion for reconsideration on the Bill of Attainder claim to the United States Court of Appeals for theFirst Circuit The panel agreed that Petitionersrsquo claimsshould be dismissed but was divided on the questionwhether the district court had jurisdiction overPetitionersrsquo constitutional claims for equitable reliefId at 15a

11

The majority agreed with the Government that theCSRA provides the exclusive remedy for the termination or constructive termination of federal employees even for facial constitutional challenges likethis one 92 Stat 1111 et seq (codified as amended invarious sections of 5 USC) The CSRA permits non-exempt federal employees such as Petitioners toappeal their terminations to the MSPB if they wereremoved ldquofor such cause as will promote the efficiencyof the servicerdquo 5 USC sect 7513(a) see generally idsectsect 7511-7514 Employees can then appeal the MSPBdecision to the United States Court of Appeals for theFederal Circuit Id sect 7703(b)(1) As the majority notedthis Court has held that though the CSRA does notexplicitly state it is the exclusive remedy itscomprehensiveness generally precludes ordinarydistrict court review of federal employee removals PetApp 6a (citing United States v Fausto 484 US 439 443-55 (1988) and Bush v Lucas 462 US 367 368 (1983))

The majority held that Petitionersrsquo terminationswhich were based solely on 5 USC sect 3328 werenonetheless terminations made for ldquoefficiency of theservicerdquo under 5 USC sect 7513(a) and were thereforesubject to the review procedures outlined by the CSRAPet App 7a-9a Noting the circuit split on thequestion the majority held that the CSRA is theexclusive remedy even when the employee brings onlyconstitutional claims for equitable relief Id at 11a-12a amp 12a n4 Therefore the district court lacked jurisdiction over Petitionersrsquo claims

The majority recognized however that its conclusion might be different if the CSRA provided no

12

remedy for Petitionersrsquo constitutional claims Id at 13a Though the majority did not dispute that theMSPB was powerless to strike down a statute asunconstitutional the majority reasoned that theFederal Circuit had the authority to do so on appealfrom the MSPB Id at 14a Therefore according to themajority the merits of Petitionersrsquo constitutionalclaims could be aired and decided at the Federal Circuit if not the MSPB

Petitioners had argued that their constitutionalclaims could not have been heard in the Federal Circuit because the Federal Circuit has itself repeatedly stated that its jurisdiction on appeal fromthe MSPB is coextensive with the jurisdiction of theMSPB which would not have had jurisdiction overPetitionersrsquo claims The majority disagreed reasoningthat the Federal Circuit had never addressed the question of its jurisdiction under these precisecircumstances and had posited that it would berequired to entertain constitutional claims seekingequitable relief under Webster v Doe 486 US 592 (1988) Pet App 14a (citing Riggin v Office of SenateFair Emprsquot Practices 61 F3d 1563 1570 (Fed Cir 1995) and Brockmann v Deprsquot of the Air Force 27 F3d 544 546-47 (Fed Cir 1994)) Even if the FederalCircuit would have held that it lacked jurisdiction toreview Petitionersrsquo constitutional claims the majorityexplained Petitioners could still have soughtadjudication of their claims on certiorari in this CourtId

Judge Stahl disagreed that the district court lackedjurisdiction but would have rejected Petitionersrsquo claimson the merits Id at 15a Judge Stahl sided with the

13

Third Ninth and DC Circuits and held that because the CSRA does not explicitly state that it prohibitsemployees from bringing constitutional challenges forequitable relief in district court it does not precludesuch actions Id at 23a-24a

Judge Stahl disagreed with the majority thatPetitionersrsquo constitutional claims could have been addressed in the Federal Circuit He explained that theFederal Circuitrsquos jurisdiction has never exceeded thescope of the MSPBrsquos jurisdiction on review of appealsfrom the MSPB even when the appellant assertedconstitutional claims beyond the MSPBrsquos jurisdictionId at 21a-22a (citing Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) (unpublished)) Judge Stahlnoted that in Brockmann v Department of the Air Force relied on by the majority the Federal Circuithypothesized about the possibility of reviewingconstitutional claims but did not actually state that itwould or could do so Id (discussing Brockmann 27 F3d at 546-47) Therefore Judge Stahl reasoned thebetter reading of the Federal Circuitrsquos decisions wasthat it would not have had jurisdiction and the CSRAprocess would not have provided any review ofPetitionersrsquo constitutional claims Id at 22a

14

REASONS FOR GRANTING THE WRIT I This Court Should Resolve the Deep and Enduring

Circuit Split on the Question Whether the CivilService Reform Act Impliedly Precludes FederalDistrict Courts From Granting Equitable Relief onthe Constitutional Claims of Federal Employees As the First Circuit acknowledged this case raises

a question on which there is a deep and longstandingcircuit split whether the CSRA impliedly precludesfederal district courts from exercising jurisdiction overthe constitutional claims of federal employees seekinginjunctive relief Id at 12a n4 24a-25a The Third and DC Circuits have held that the CSRA does not preclude district court jurisdiction over equitableconstitutional claims the First Second and Tenth Circuits have held that it does and four other circuits have recognized the split2

A The Circuit Split 1 Two circuitsmdashthe Third and DC Circuitsmdashhave

held that the CSRA does not preclude federal

2See Am Fedrsquon of Govrsquot Emps Local 1 v Stone 502 F3d 1027 1037-39 (9th Cir 2007) (discussing circuit split) Dotson v Griesa 398 F3d 156 179 (2d Cir 2005) cert denied 547 US 1191 (2006)(ldquoThe circuits are divided as to whether equitable relief such asreinstatement is available to federal employees notwithstandingtheir general agreement that the CSRA precludes Bivens claims for damagesrdquo) Hardison v Cohen 375 F3d 1262 1266 (11th Cir2004) (ldquoSeveral of our sister circuits have differed on whetherequitable relief is precluded by the presence of a statutoryremedial schemerdquo) Paige v Cisneros 91 F3d 40 44 (7th Cir 1996) (discussing circuit split) Mitchum v Hurt 73 F3d 30 34 (3d Cir 1995) (discussing circuit split) Bryant v Cheney 924 F2d 525 525 (4th Cir 1991) (discussing ldquotension among the circuitsrdquo)

15

employees from bringing claims for equitable relief forconstitutional injuries in federal district court Athirdmdashthe Ninth Circuitmdashhas expressly agreed withthe Third and DC Circuits and has held that at least in some circumstances federal employees may bringconstitutional claims for equitable relief in district court

In Hubbard v EPA 809 F2d 1 (DC Cir 1986) adetective with the DC Police Department alleged thathe had been denied a position with the EnvironmentalProtection Agency because of statements he made tothe press about an investigation into illegal drug useby members of Congress Under the CSRA Hubbardcould appeal the decisionmdashincluding his constitutionalclaims under the First Amendmentmdashto OPM and file a petition with the Office of Special Counsel Hubbardbrought a Bivens action in district court for damages aswell as a claim for injunctive relief Id at 1 3 8

Relying on this Courtrsquos decision in Bush v Lucas the DC Circuit held that Hubbardrsquos Bivens claim for damages was precluded by the CSRArsquos comprehensiveremedial scheme In Bush this Court rejected a federalemployeersquos Bivens claim for damages because theldquocomprehensive procedural and substantive provisionsrdquoof the CSRA are ldquospecial factors counselling hesitationin the absence of affirmative action by CongressrdquoBush 462 US at 377 (quoting Carlson v Green 446 US 14 18-19 (1980)) However the DC Circuit ruledthat the CSRA did not preclude Hubbardrsquos claim forequitable relief because to eliminate courtsrsquo jurisdictionover equitable relief for constitutional violationsCongress must do so explicitly and the CSRA did notcontain any provision explicitly eliminating federal

16

court jurisdiction The DC Circuit explained thedifference

The courtsrsquo power to impose equitable remediesagainst agencies is broader than its power toimpose legal remedies against individualsBivens actions are a recent judicial creation and as Carlson v Green made clear comparativelyeasy for Congress to preempt The courtsrsquo power to enjoin unconstitutional acts by the government however is inherent in the Constitution itself see Marbury v Madison 5 US (1 Cranch) 137 LEd 60 (1803) AlthoughCongress may limit this power see Ex Parte McCardle 74 US (7 Wall) 506 19 LEd 264(1869) CSRA did not explicitly limit ourjurisdiction to enjoin unconstitutional personnelactions by federal agencies

Hubbard 809 F2d at 11 n15 The Bivens portion of the Hubbard decision was

reheard and affirmed en banc in Spagnola v Mathis 859 F2d 223 (DC Cir 1988) Although the en banccourt did not rehear the question whether the CSRAalso precludes constitutional claims for equitable reliefit made clear that its decision with regard to theBivens claim left the equitable claim intact ldquo[T]imeand again this court has affirmed the right of civil servants to seek equitable relief against their supervisors and the agency itself in vindication oftheir constitutional rightsrdquo Id at 229-30

In Mitchum v Hurt 73 F3d at 36 the Third Circuit joined the DC Circuit in holding that theCSRA did not preclude district court jurisdiction over

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

xi

OTHER SOURCE

Brief for Respondents Whitman v Department ofTransportation 547 US 512 (2006)(No 04-1131) 2005 WL 2738321 23

PETITION FOR A WRIT OF CERTIORARI Petitioners Michael B Elgin Aaron Lawson Henry

Tucker and Christon Colby respectfully petition for awrit of certiorari to review the judgment of the UnitedStates Court of Appeals for the First Circuit

OPINIONS BELOW The opinion of the United States Court of Appeals

for the First Circuit (Pet App 1a) is published at 641F3d 6 The district courtrsquos decision grantingPetitionersrsquo motion for partial summary judgment anddenying in part and granting in part Respondentsrsquomotion to dismiss (Pet App 65a) is published at 594 FSupp 2d 133 The district courtrsquos decision grantingRespondentsrsquo motion for reconsideration (Pet App39a) is published at 697 F Supp 2d 187

JURISDICTION The judgment of the court of appeals was entered

on April 8 2011 Pet App 2a This Court hasjurisdiction under 28 USC sect 1254(1)

STATUTES INVOLVED 5 USC sect 3328 bars men who fail to register with

the Selective Service from federal agency employmentIn full it provides

(a) An individualmdash (1) who was born after December 31 1959

and is or was required to register under section3 of the Military Selective Service Act (50 AppUSC 453) and

(2) who is not so registered or knowingly andwillfully did not so register before the requirement terminated or became inapplicable to the individual shall be ineligible for

2

appointment to a position in an Executive agency (b) The Office of Personnel Management inconsultation with the Director of the Selective Service System shall prescribe regulations tocarry out this section Such regulations shallinclude provisions prescribing procedures for theadjudication of determinations of whether afailure to register was knowing and willful Suchprocedures shall require that such a determination may not be made if the individualconcerned shows by a preponderance of theevidence that the failure to register was neitherknowing nor willful Such procedures mayprovide that determinations of eligibility underthe requirements of this section shall beadjudicated by the Executive agency making theappointment for which the eligibility is determined The Civil Service Reform Act 92 Stat 1111 et seq

outlines administrative procedures available to certainfederal employees for certain adverse employmentactions Relevant portions of the Civil Service ReformAct are reproduced in the Appendix at 108a

STATEMENT OF THE CASE Petitioners Michael B Elgin Aaron Lawson Henry

Tucker and Christon Colby are former federalemployees Each was terminated or constructivelyterminated from his federal employment under 5USC sect 3328 which imposes a lifetime bar on federalexecutive agency employment on men who do not

3

register with the Selective Service between the ages of18 and 26 First Am Compl para 2

Elgin appealed his termination to the MeritSystems Protection Board (MSPB) arguing that 5USC sect 3328 was a Bill of Attainder and that he wasdiscriminated against on the basis of sex The MSPBdismissed Elginrsquos appeal for lack of jurisdiction PetApp 95a 104a1

Elgin Lawson Tucker and Colby then brought thisaction in district court under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 againsttheir former employers the United States the USDepartment of the Treasury and the US Departmentof the Interior First Am Compl para 5 Petitionerschallenged 5 USC sect 3328 as a Bill of Attainder and asviolative of their constitutional rights to equalprotection on the basis of sex seeking injunctive anddeclaratory relief Id para 4 The district court initiallyheld that 5 USC sect 3328 was a Bill of Attainder butdid not violate Petitionersrsquo right to equal protectionand granted Petitionersrsquo partial motion for summaryjudgment Pet App 66a-67a On reconsideration thedistrict court addressed for the first time whether it had jurisdiction over Petitionersrsquo claims and held thatit did Id at 51a However the district court reversed its holding on the merits ruling that 5 USC sect 3328was not a Bill of Attainder Id at 63a-64a

1The unpublished decision of the MSPB is reproduced in theAppendix at 94a It is also available at Elgin v Department of theTreasury No PH-0752-08-0004-I-1 2007 MSPB LEXIS 7502 (MSPB Nov 16 2007)

4

A divided panel of the Court of Appeals for the FirstCircuit vacated the district courtrsquos decision and remanded for entry of a new judgment denyingPetitioners relief for lack of subject matter jurisdictionId at 15a Acknowledging a circuit split (id at 12a n4) the panel majority held that the district courtlacked jurisdiction to review Petitionersrsquo claimsbecause the Civil Service Reform Act (CSRA) 92 Stat1111 et seq impliedly precludes federal district courtsfrom granting equitable relief for constitutional injuries Id at 12a Because the CSRA does not explicitly preclude such relief the concurring judgewould have found that the district court had jurisdiction Id at 18a

A Factual Background The Military Selective Service Act requires all

males to register with the Selective Service betweenthe ages of 18 and 26 upon proclamation of thePresident 50 USC app sect 453 Since 1980 apresidential proclamation has required registrationand all persons are by statute ldquodeemedrdquo to knowabout the registration requirement Proclamation No4771 45 Fed Reg 45247 (July 2 1980) 50 USC appsect 465(a) Failure to register is a crime punishable bya fine of up to $10000 and up to five years in prisonMen can be prosecuted until their 31st birthdays Id sect 462(a) In addition in 1986 Congress enacted 5USC sect 3328 which further penalizes men whoknowingly and willfully fail to register by imposing alifetime bar on federal executive agency employmentRegulations provide for the termination of employeeswho fail to register and the Office of PersonnelManagement (OPM) is responsible for determining

5

whether the failure to register was knowing andwillful 5 CFR sect 300707

The Selective Service System has no record ofregistration for any of the Petitioners Three ofthemmdashElgin Tucker and Colbymdashdid not becomeaware of the registration requirement until after their26th birthdays when it was too late to register ThefourthmdashLawsonmdashknew about the requirement andbelieves that he registered but the Selective ServiceSystem does not have any record of his registrationElgin Lawson and Colby sought determinations thattheir failure to register was not knowing and willfulbut OPM denied their claims

Petitioners are former employees of federal agencies Elgin Lawson and Colby were terminatedsolely under 5 USC sect 3328 because they failed toregister Tucker resigned from one agency when hisfailure to register became apparent and his offer ofemployment from a second agency was withdrawnsolely because he failed to register

1 Michael B Elgin was first hired by the InternalRevenue Service (IRS) an agency of the TreasuryDepartment in 1991 as a low-level data transcriberPet App 95a Over the next sixteen years Elginconsistently received glowing evaluations and waspromoted to positions with increasing responsibilityFirst Am Compl para 31 As part of a routine backgroundinvestigation when he was offered a promotion in 2002the IRS learned that Elgin had not registered with theSelective Service and passed that information on toOPM Id parapara 32-34 Nevertheless Elgin was promotedId para 33

6

In 2003 OPM determined that Elgin was ineligiblefor federal employment under 5 USC sect 3328 becausehe had failed to register with the Selective ServiceElgin sought a waiver that would permit his employment arguing that his failure to register hadnot been knowing and willful because he had not beenaware of the registration requirement at age 18 hewas struggling to complete high school and support hisson while being virtually homeless Id parapara 29-30 OPMdenied his request for a waiver in 2006 BothMassachusetts Senators and the IRS asked OPM to reconsider explaining that Elgin was a valued IRSemployee whose termination would negatively affectthe agency and that Elginrsquos failure to register wasinadvertent Id para 34 OPM denied the Senatorsrsquo and IRSrsquos request Id para 35 Elgin was terminated on July 27 2007 Id para 36

2 Aaron Lawson has been a wildfire fighter since1997 first with the California Department of Forestryand later with the US Forest Service Id para 40 He isa specialist in directing helicopter crews fighting forestfires Id para 41 The Government has spent tens ofthousands of dollars training him to do this dangerouswork Id In 2003 the Bureau of Land Management adivision of the Interior Department in conjunctionwith the US Forest Service hired him as a wildfire fighter helicopter captain Id para 40 After he was hiredLawson learned that the Selective Service has no record of his registration Id Lawson believes that he completed the registration forms at his local post officearound the time of his 18th birthday Id para 39 TheBureau of Land Management and US Forest Servicerequested a waiver from OPM that would make

7

Lawson eligible for employment Id para 42 OPM deniedthe waiver Lawson was terminated Id

3 In 2007 Henry Tucker was a FinancialInstitution Specialist at the Federal Deposit InsuranceCorporation where he had been employed for 17 yearsId para 44 He had never been aware of the requirementto register with the Selective Service Tuckerrsquos motherleft him when he was 16 and he moved frequently as a teenager Id para 43 In December 2007 the FederalDeposit Insurance Corporation learned that Tuckerhad not registered with the Selective Service andreferred the matter to OPM Id para 45

Fearing that he would be fired Tucker resigned andapplied for a position with the National Institutes ofHealth which offered Tucker a job as a BudgetAnalyst Id para 46 It withdrew the offer however afterlearning that Tucker had not registered with theSelective Service Id

4 Christon Colby began working at the IRS in 2001as a temporary employee and was hired permanentlyin 2002 Id parapara 49-52 Colby received consistentlyexcellent performance reviews and was promoted topositions with increasing responsibility Id para 53 In2003 the IRS informed Colby that it had become awareof his failure to register with the Selective Service Id para 54 Colby sought a waiver from OPM on the basisthat his failure to register was not knowing and willfulColby explained that he had moved out of his parentsrsquohome at age 18 and was unaware of the registrationrequirement until he was too old to register Id parapara 47-48 55

8

In 2006 OPM declined to issue a waiver makinghim eligible for employment Id para 57 Colbyrsquossupervisor at the IRS appealed the determinationwithin OPM explaining that Colby was ldquoan extremelyvaluable and integralrdquo employee and noting that theIRS had invested $25000 in training Colby Id para 58OPM affirmed its decision not to issue Colby a waiverand Colby was terminated on August 3 2007 Id parapara 59-60

B Proceedings Before the Merit SystemsProtection Board and the District Court

The Civil Service Reform Act (CSRA) 92 Stat 1111 et seq provides that non-exempt federal employees(such as Petitioners had been) may challenge theirterminations before the Merit Systems ProtectionBoard (MSPB) under certain conditions 5 USCsectsect 7701(a) 7512(1) 7513(d) Shortly after beingterminated under 5 USC sect 3328 Petitioner Elginappealed the decision to the MSPB arguing that 5USC sect 3328 is a Bill of Attainder and that he wassubject to unconstitutional sex-based discriminationbecause the Selective Service registration requirementonly applies to men On November 16 2007 at theTreasury Departmentrsquos urging the MSPB dismissedElginrsquos appeal for lack of jurisdiction Pet App 100a-01a The MSPB explained that it lacked jurisdictionover appeals where employees were terminated underabsolute statutory prohibitions such as 5 USCsect 3328 Id The MSPB also held that it lacked authorityto rule on the constitutionality of a statute and notedthat to the extent it could review any constitutional ordiscrimination claims it did not have jurisdiction over

9

those claims without an explicit grant of jurisdictionwhich was absent here Id at 101a-02a

After Elginrsquos MSPB appeal was dismissed onDecember 28 2007 Elgin joined by Lawson Tuckerand Colby brought this action challenging theconstitutionality of 5 USC sect 3328 in the UnitedStates District Court for the District of Massachusetts against the United States of America the USDepartment of the Treasury and the US Departmentof the Interior (collectively the Government) First AmCompl para 1 Petitioners contended that 5 USC sect 3328is a Bill of Attainder prohibited by Article I Section 9Clause 3 of the Constitution because it legislativelyimposes punishmentmdashthe lifetime bar on federalemploymentmdashon a specific group of men for theirirreversible failure to register Petitioners also contended that because the Selective Service registration requirement and employment bar appliesto men and not women it unlawfully discriminatesunder the equal protection component of the FifthAmendment Id parapara 1 4 Petitioners sought declaratoryand injunctive relief including reinstatement Id para 4The claims were brought under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 andjurisdiction was premised on 28 USC sectsect 1331 1343and 1346 First Am Compl para 5 Petitioners amendedthe complaint in January 2008 to add a class actionclaim Id para 1

The Government moved to dismiss arguing thatPetitionersrsquo claims failed on the merits Pet App 66aThe Government did not at that time contest the district courtrsquos jurisdiction Petitioners responded by

10

opposing the motion to dismiss as to the equalprotection claim and seeking partial summaryjudgment as to liability on the Bill of Attainder claimAfter a hearing the district court granted Petitionersrsquomotion for partial summary judgment holding that 5USC sect 3328 was a Bill of Attainder and granted theGovernmentrsquos motion to dismiss in part holding thatthe Selective Service scheme did not violate Petitionersrsquo rights to equal protection Id at 66a-67a

Petitioners then filed a motion for class certification and sought a preliminary injunction reinstatingPetitioners The Government filed a motion for reconsideration of the district courtrsquos grant of summaryjudgment on the Bill of Attainder claim contendingboth that the claim failed on the merits and arguing forthe first time that the district court did not have subject matter jurisdiction over the claim because theCSRA precludes district court review of federalemployment decisions Id at 41a-42a The district court held that it did have jurisdiction but granted themotion for reconsideration because it determined on reexamination that 5 USC sect 3328 was not a Bill ofAttainder Id at 51a 63a-64a

C Proceedings Before the First Circuit Petitioners appealed the district courtrsquos decisions

dismissing the equal protection claim and granting themotion for reconsideration on the Bill of Attainder claim to the United States Court of Appeals for theFirst Circuit The panel agreed that Petitionersrsquo claimsshould be dismissed but was divided on the questionwhether the district court had jurisdiction overPetitionersrsquo constitutional claims for equitable reliefId at 15a

11

The majority agreed with the Government that theCSRA provides the exclusive remedy for the termination or constructive termination of federal employees even for facial constitutional challenges likethis one 92 Stat 1111 et seq (codified as amended invarious sections of 5 USC) The CSRA permits non-exempt federal employees such as Petitioners toappeal their terminations to the MSPB if they wereremoved ldquofor such cause as will promote the efficiencyof the servicerdquo 5 USC sect 7513(a) see generally idsectsect 7511-7514 Employees can then appeal the MSPBdecision to the United States Court of Appeals for theFederal Circuit Id sect 7703(b)(1) As the majority notedthis Court has held that though the CSRA does notexplicitly state it is the exclusive remedy itscomprehensiveness generally precludes ordinarydistrict court review of federal employee removals PetApp 6a (citing United States v Fausto 484 US 439 443-55 (1988) and Bush v Lucas 462 US 367 368 (1983))

The majority held that Petitionersrsquo terminationswhich were based solely on 5 USC sect 3328 werenonetheless terminations made for ldquoefficiency of theservicerdquo under 5 USC sect 7513(a) and were thereforesubject to the review procedures outlined by the CSRAPet App 7a-9a Noting the circuit split on thequestion the majority held that the CSRA is theexclusive remedy even when the employee brings onlyconstitutional claims for equitable relief Id at 11a-12a amp 12a n4 Therefore the district court lacked jurisdiction over Petitionersrsquo claims

The majority recognized however that its conclusion might be different if the CSRA provided no

12

remedy for Petitionersrsquo constitutional claims Id at 13a Though the majority did not dispute that theMSPB was powerless to strike down a statute asunconstitutional the majority reasoned that theFederal Circuit had the authority to do so on appealfrom the MSPB Id at 14a Therefore according to themajority the merits of Petitionersrsquo constitutionalclaims could be aired and decided at the Federal Circuit if not the MSPB

Petitioners had argued that their constitutionalclaims could not have been heard in the Federal Circuit because the Federal Circuit has itself repeatedly stated that its jurisdiction on appeal fromthe MSPB is coextensive with the jurisdiction of theMSPB which would not have had jurisdiction overPetitionersrsquo claims The majority disagreed reasoningthat the Federal Circuit had never addressed the question of its jurisdiction under these precisecircumstances and had posited that it would berequired to entertain constitutional claims seekingequitable relief under Webster v Doe 486 US 592 (1988) Pet App 14a (citing Riggin v Office of SenateFair Emprsquot Practices 61 F3d 1563 1570 (Fed Cir 1995) and Brockmann v Deprsquot of the Air Force 27 F3d 544 546-47 (Fed Cir 1994)) Even if the FederalCircuit would have held that it lacked jurisdiction toreview Petitionersrsquo constitutional claims the majorityexplained Petitioners could still have soughtadjudication of their claims on certiorari in this CourtId

Judge Stahl disagreed that the district court lackedjurisdiction but would have rejected Petitionersrsquo claimson the merits Id at 15a Judge Stahl sided with the

13

Third Ninth and DC Circuits and held that because the CSRA does not explicitly state that it prohibitsemployees from bringing constitutional challenges forequitable relief in district court it does not precludesuch actions Id at 23a-24a

Judge Stahl disagreed with the majority thatPetitionersrsquo constitutional claims could have been addressed in the Federal Circuit He explained that theFederal Circuitrsquos jurisdiction has never exceeded thescope of the MSPBrsquos jurisdiction on review of appealsfrom the MSPB even when the appellant assertedconstitutional claims beyond the MSPBrsquos jurisdictionId at 21a-22a (citing Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) (unpublished)) Judge Stahlnoted that in Brockmann v Department of the Air Force relied on by the majority the Federal Circuithypothesized about the possibility of reviewingconstitutional claims but did not actually state that itwould or could do so Id (discussing Brockmann 27 F3d at 546-47) Therefore Judge Stahl reasoned thebetter reading of the Federal Circuitrsquos decisions wasthat it would not have had jurisdiction and the CSRAprocess would not have provided any review ofPetitionersrsquo constitutional claims Id at 22a

14

REASONS FOR GRANTING THE WRIT I This Court Should Resolve the Deep and Enduring

Circuit Split on the Question Whether the CivilService Reform Act Impliedly Precludes FederalDistrict Courts From Granting Equitable Relief onthe Constitutional Claims of Federal Employees As the First Circuit acknowledged this case raises

a question on which there is a deep and longstandingcircuit split whether the CSRA impliedly precludesfederal district courts from exercising jurisdiction overthe constitutional claims of federal employees seekinginjunctive relief Id at 12a n4 24a-25a The Third and DC Circuits have held that the CSRA does not preclude district court jurisdiction over equitableconstitutional claims the First Second and Tenth Circuits have held that it does and four other circuits have recognized the split2

A The Circuit Split 1 Two circuitsmdashthe Third and DC Circuitsmdashhave

held that the CSRA does not preclude federal

2See Am Fedrsquon of Govrsquot Emps Local 1 v Stone 502 F3d 1027 1037-39 (9th Cir 2007) (discussing circuit split) Dotson v Griesa 398 F3d 156 179 (2d Cir 2005) cert denied 547 US 1191 (2006)(ldquoThe circuits are divided as to whether equitable relief such asreinstatement is available to federal employees notwithstandingtheir general agreement that the CSRA precludes Bivens claims for damagesrdquo) Hardison v Cohen 375 F3d 1262 1266 (11th Cir2004) (ldquoSeveral of our sister circuits have differed on whetherequitable relief is precluded by the presence of a statutoryremedial schemerdquo) Paige v Cisneros 91 F3d 40 44 (7th Cir 1996) (discussing circuit split) Mitchum v Hurt 73 F3d 30 34 (3d Cir 1995) (discussing circuit split) Bryant v Cheney 924 F2d 525 525 (4th Cir 1991) (discussing ldquotension among the circuitsrdquo)

15

employees from bringing claims for equitable relief forconstitutional injuries in federal district court Athirdmdashthe Ninth Circuitmdashhas expressly agreed withthe Third and DC Circuits and has held that at least in some circumstances federal employees may bringconstitutional claims for equitable relief in district court

In Hubbard v EPA 809 F2d 1 (DC Cir 1986) adetective with the DC Police Department alleged thathe had been denied a position with the EnvironmentalProtection Agency because of statements he made tothe press about an investigation into illegal drug useby members of Congress Under the CSRA Hubbardcould appeal the decisionmdashincluding his constitutionalclaims under the First Amendmentmdashto OPM and file a petition with the Office of Special Counsel Hubbardbrought a Bivens action in district court for damages aswell as a claim for injunctive relief Id at 1 3 8

Relying on this Courtrsquos decision in Bush v Lucas the DC Circuit held that Hubbardrsquos Bivens claim for damages was precluded by the CSRArsquos comprehensiveremedial scheme In Bush this Court rejected a federalemployeersquos Bivens claim for damages because theldquocomprehensive procedural and substantive provisionsrdquoof the CSRA are ldquospecial factors counselling hesitationin the absence of affirmative action by CongressrdquoBush 462 US at 377 (quoting Carlson v Green 446 US 14 18-19 (1980)) However the DC Circuit ruledthat the CSRA did not preclude Hubbardrsquos claim forequitable relief because to eliminate courtsrsquo jurisdictionover equitable relief for constitutional violationsCongress must do so explicitly and the CSRA did notcontain any provision explicitly eliminating federal

16

court jurisdiction The DC Circuit explained thedifference

The courtsrsquo power to impose equitable remediesagainst agencies is broader than its power toimpose legal remedies against individualsBivens actions are a recent judicial creation and as Carlson v Green made clear comparativelyeasy for Congress to preempt The courtsrsquo power to enjoin unconstitutional acts by the government however is inherent in the Constitution itself see Marbury v Madison 5 US (1 Cranch) 137 LEd 60 (1803) AlthoughCongress may limit this power see Ex Parte McCardle 74 US (7 Wall) 506 19 LEd 264(1869) CSRA did not explicitly limit ourjurisdiction to enjoin unconstitutional personnelactions by federal agencies

Hubbard 809 F2d at 11 n15 The Bivens portion of the Hubbard decision was

reheard and affirmed en banc in Spagnola v Mathis 859 F2d 223 (DC Cir 1988) Although the en banccourt did not rehear the question whether the CSRAalso precludes constitutional claims for equitable reliefit made clear that its decision with regard to theBivens claim left the equitable claim intact ldquo[T]imeand again this court has affirmed the right of civil servants to seek equitable relief against their supervisors and the agency itself in vindication oftheir constitutional rightsrdquo Id at 229-30

In Mitchum v Hurt 73 F3d at 36 the Third Circuit joined the DC Circuit in holding that theCSRA did not preclude district court jurisdiction over

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

PETITION FOR A WRIT OF CERTIORARI Petitioners Michael B Elgin Aaron Lawson Henry

Tucker and Christon Colby respectfully petition for awrit of certiorari to review the judgment of the UnitedStates Court of Appeals for the First Circuit

OPINIONS BELOW The opinion of the United States Court of Appeals

for the First Circuit (Pet App 1a) is published at 641F3d 6 The district courtrsquos decision grantingPetitionersrsquo motion for partial summary judgment anddenying in part and granting in part Respondentsrsquomotion to dismiss (Pet App 65a) is published at 594 FSupp 2d 133 The district courtrsquos decision grantingRespondentsrsquo motion for reconsideration (Pet App39a) is published at 697 F Supp 2d 187

JURISDICTION The judgment of the court of appeals was entered

on April 8 2011 Pet App 2a This Court hasjurisdiction under 28 USC sect 1254(1)

STATUTES INVOLVED 5 USC sect 3328 bars men who fail to register with

the Selective Service from federal agency employmentIn full it provides

(a) An individualmdash (1) who was born after December 31 1959

and is or was required to register under section3 of the Military Selective Service Act (50 AppUSC 453) and

(2) who is not so registered or knowingly andwillfully did not so register before the requirement terminated or became inapplicable to the individual shall be ineligible for

2

appointment to a position in an Executive agency (b) The Office of Personnel Management inconsultation with the Director of the Selective Service System shall prescribe regulations tocarry out this section Such regulations shallinclude provisions prescribing procedures for theadjudication of determinations of whether afailure to register was knowing and willful Suchprocedures shall require that such a determination may not be made if the individualconcerned shows by a preponderance of theevidence that the failure to register was neitherknowing nor willful Such procedures mayprovide that determinations of eligibility underthe requirements of this section shall beadjudicated by the Executive agency making theappointment for which the eligibility is determined The Civil Service Reform Act 92 Stat 1111 et seq

outlines administrative procedures available to certainfederal employees for certain adverse employmentactions Relevant portions of the Civil Service ReformAct are reproduced in the Appendix at 108a

STATEMENT OF THE CASE Petitioners Michael B Elgin Aaron Lawson Henry

Tucker and Christon Colby are former federalemployees Each was terminated or constructivelyterminated from his federal employment under 5USC sect 3328 which imposes a lifetime bar on federalexecutive agency employment on men who do not

3

register with the Selective Service between the ages of18 and 26 First Am Compl para 2

Elgin appealed his termination to the MeritSystems Protection Board (MSPB) arguing that 5USC sect 3328 was a Bill of Attainder and that he wasdiscriminated against on the basis of sex The MSPBdismissed Elginrsquos appeal for lack of jurisdiction PetApp 95a 104a1

Elgin Lawson Tucker and Colby then brought thisaction in district court under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 againsttheir former employers the United States the USDepartment of the Treasury and the US Departmentof the Interior First Am Compl para 5 Petitionerschallenged 5 USC sect 3328 as a Bill of Attainder and asviolative of their constitutional rights to equalprotection on the basis of sex seeking injunctive anddeclaratory relief Id para 4 The district court initiallyheld that 5 USC sect 3328 was a Bill of Attainder butdid not violate Petitionersrsquo right to equal protectionand granted Petitionersrsquo partial motion for summaryjudgment Pet App 66a-67a On reconsideration thedistrict court addressed for the first time whether it had jurisdiction over Petitionersrsquo claims and held thatit did Id at 51a However the district court reversed its holding on the merits ruling that 5 USC sect 3328was not a Bill of Attainder Id at 63a-64a

1The unpublished decision of the MSPB is reproduced in theAppendix at 94a It is also available at Elgin v Department of theTreasury No PH-0752-08-0004-I-1 2007 MSPB LEXIS 7502 (MSPB Nov 16 2007)

4

A divided panel of the Court of Appeals for the FirstCircuit vacated the district courtrsquos decision and remanded for entry of a new judgment denyingPetitioners relief for lack of subject matter jurisdictionId at 15a Acknowledging a circuit split (id at 12a n4) the panel majority held that the district courtlacked jurisdiction to review Petitionersrsquo claimsbecause the Civil Service Reform Act (CSRA) 92 Stat1111 et seq impliedly precludes federal district courtsfrom granting equitable relief for constitutional injuries Id at 12a Because the CSRA does not explicitly preclude such relief the concurring judgewould have found that the district court had jurisdiction Id at 18a

A Factual Background The Military Selective Service Act requires all

males to register with the Selective Service betweenthe ages of 18 and 26 upon proclamation of thePresident 50 USC app sect 453 Since 1980 apresidential proclamation has required registrationand all persons are by statute ldquodeemedrdquo to knowabout the registration requirement Proclamation No4771 45 Fed Reg 45247 (July 2 1980) 50 USC appsect 465(a) Failure to register is a crime punishable bya fine of up to $10000 and up to five years in prisonMen can be prosecuted until their 31st birthdays Id sect 462(a) In addition in 1986 Congress enacted 5USC sect 3328 which further penalizes men whoknowingly and willfully fail to register by imposing alifetime bar on federal executive agency employmentRegulations provide for the termination of employeeswho fail to register and the Office of PersonnelManagement (OPM) is responsible for determining

5

whether the failure to register was knowing andwillful 5 CFR sect 300707

The Selective Service System has no record ofregistration for any of the Petitioners Three ofthemmdashElgin Tucker and Colbymdashdid not becomeaware of the registration requirement until after their26th birthdays when it was too late to register ThefourthmdashLawsonmdashknew about the requirement andbelieves that he registered but the Selective ServiceSystem does not have any record of his registrationElgin Lawson and Colby sought determinations thattheir failure to register was not knowing and willfulbut OPM denied their claims

Petitioners are former employees of federal agencies Elgin Lawson and Colby were terminatedsolely under 5 USC sect 3328 because they failed toregister Tucker resigned from one agency when hisfailure to register became apparent and his offer ofemployment from a second agency was withdrawnsolely because he failed to register

1 Michael B Elgin was first hired by the InternalRevenue Service (IRS) an agency of the TreasuryDepartment in 1991 as a low-level data transcriberPet App 95a Over the next sixteen years Elginconsistently received glowing evaluations and waspromoted to positions with increasing responsibilityFirst Am Compl para 31 As part of a routine backgroundinvestigation when he was offered a promotion in 2002the IRS learned that Elgin had not registered with theSelective Service and passed that information on toOPM Id parapara 32-34 Nevertheless Elgin was promotedId para 33

6

In 2003 OPM determined that Elgin was ineligiblefor federal employment under 5 USC sect 3328 becausehe had failed to register with the Selective ServiceElgin sought a waiver that would permit his employment arguing that his failure to register hadnot been knowing and willful because he had not beenaware of the registration requirement at age 18 hewas struggling to complete high school and support hisson while being virtually homeless Id parapara 29-30 OPMdenied his request for a waiver in 2006 BothMassachusetts Senators and the IRS asked OPM to reconsider explaining that Elgin was a valued IRSemployee whose termination would negatively affectthe agency and that Elginrsquos failure to register wasinadvertent Id para 34 OPM denied the Senatorsrsquo and IRSrsquos request Id para 35 Elgin was terminated on July 27 2007 Id para 36

2 Aaron Lawson has been a wildfire fighter since1997 first with the California Department of Forestryand later with the US Forest Service Id para 40 He isa specialist in directing helicopter crews fighting forestfires Id para 41 The Government has spent tens ofthousands of dollars training him to do this dangerouswork Id In 2003 the Bureau of Land Management adivision of the Interior Department in conjunctionwith the US Forest Service hired him as a wildfire fighter helicopter captain Id para 40 After he was hiredLawson learned that the Selective Service has no record of his registration Id Lawson believes that he completed the registration forms at his local post officearound the time of his 18th birthday Id para 39 TheBureau of Land Management and US Forest Servicerequested a waiver from OPM that would make

7

Lawson eligible for employment Id para 42 OPM deniedthe waiver Lawson was terminated Id

3 In 2007 Henry Tucker was a FinancialInstitution Specialist at the Federal Deposit InsuranceCorporation where he had been employed for 17 yearsId para 44 He had never been aware of the requirementto register with the Selective Service Tuckerrsquos motherleft him when he was 16 and he moved frequently as a teenager Id para 43 In December 2007 the FederalDeposit Insurance Corporation learned that Tuckerhad not registered with the Selective Service andreferred the matter to OPM Id para 45

Fearing that he would be fired Tucker resigned andapplied for a position with the National Institutes ofHealth which offered Tucker a job as a BudgetAnalyst Id para 46 It withdrew the offer however afterlearning that Tucker had not registered with theSelective Service Id

4 Christon Colby began working at the IRS in 2001as a temporary employee and was hired permanentlyin 2002 Id parapara 49-52 Colby received consistentlyexcellent performance reviews and was promoted topositions with increasing responsibility Id para 53 In2003 the IRS informed Colby that it had become awareof his failure to register with the Selective Service Id para 54 Colby sought a waiver from OPM on the basisthat his failure to register was not knowing and willfulColby explained that he had moved out of his parentsrsquohome at age 18 and was unaware of the registrationrequirement until he was too old to register Id parapara 47-48 55

8

In 2006 OPM declined to issue a waiver makinghim eligible for employment Id para 57 Colbyrsquossupervisor at the IRS appealed the determinationwithin OPM explaining that Colby was ldquoan extremelyvaluable and integralrdquo employee and noting that theIRS had invested $25000 in training Colby Id para 58OPM affirmed its decision not to issue Colby a waiverand Colby was terminated on August 3 2007 Id parapara 59-60

B Proceedings Before the Merit SystemsProtection Board and the District Court

The Civil Service Reform Act (CSRA) 92 Stat 1111 et seq provides that non-exempt federal employees(such as Petitioners had been) may challenge theirterminations before the Merit Systems ProtectionBoard (MSPB) under certain conditions 5 USCsectsect 7701(a) 7512(1) 7513(d) Shortly after beingterminated under 5 USC sect 3328 Petitioner Elginappealed the decision to the MSPB arguing that 5USC sect 3328 is a Bill of Attainder and that he wassubject to unconstitutional sex-based discriminationbecause the Selective Service registration requirementonly applies to men On November 16 2007 at theTreasury Departmentrsquos urging the MSPB dismissedElginrsquos appeal for lack of jurisdiction Pet App 100a-01a The MSPB explained that it lacked jurisdictionover appeals where employees were terminated underabsolute statutory prohibitions such as 5 USCsect 3328 Id The MSPB also held that it lacked authorityto rule on the constitutionality of a statute and notedthat to the extent it could review any constitutional ordiscrimination claims it did not have jurisdiction over

9

those claims without an explicit grant of jurisdictionwhich was absent here Id at 101a-02a

After Elginrsquos MSPB appeal was dismissed onDecember 28 2007 Elgin joined by Lawson Tuckerand Colby brought this action challenging theconstitutionality of 5 USC sect 3328 in the UnitedStates District Court for the District of Massachusetts against the United States of America the USDepartment of the Treasury and the US Departmentof the Interior (collectively the Government) First AmCompl para 1 Petitioners contended that 5 USC sect 3328is a Bill of Attainder prohibited by Article I Section 9Clause 3 of the Constitution because it legislativelyimposes punishmentmdashthe lifetime bar on federalemploymentmdashon a specific group of men for theirirreversible failure to register Petitioners also contended that because the Selective Service registration requirement and employment bar appliesto men and not women it unlawfully discriminatesunder the equal protection component of the FifthAmendment Id parapara 1 4 Petitioners sought declaratoryand injunctive relief including reinstatement Id para 4The claims were brought under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 andjurisdiction was premised on 28 USC sectsect 1331 1343and 1346 First Am Compl para 5 Petitioners amendedthe complaint in January 2008 to add a class actionclaim Id para 1

The Government moved to dismiss arguing thatPetitionersrsquo claims failed on the merits Pet App 66aThe Government did not at that time contest the district courtrsquos jurisdiction Petitioners responded by

10

opposing the motion to dismiss as to the equalprotection claim and seeking partial summaryjudgment as to liability on the Bill of Attainder claimAfter a hearing the district court granted Petitionersrsquomotion for partial summary judgment holding that 5USC sect 3328 was a Bill of Attainder and granted theGovernmentrsquos motion to dismiss in part holding thatthe Selective Service scheme did not violate Petitionersrsquo rights to equal protection Id at 66a-67a

Petitioners then filed a motion for class certification and sought a preliminary injunction reinstatingPetitioners The Government filed a motion for reconsideration of the district courtrsquos grant of summaryjudgment on the Bill of Attainder claim contendingboth that the claim failed on the merits and arguing forthe first time that the district court did not have subject matter jurisdiction over the claim because theCSRA precludes district court review of federalemployment decisions Id at 41a-42a The district court held that it did have jurisdiction but granted themotion for reconsideration because it determined on reexamination that 5 USC sect 3328 was not a Bill ofAttainder Id at 51a 63a-64a

C Proceedings Before the First Circuit Petitioners appealed the district courtrsquos decisions

dismissing the equal protection claim and granting themotion for reconsideration on the Bill of Attainder claim to the United States Court of Appeals for theFirst Circuit The panel agreed that Petitionersrsquo claimsshould be dismissed but was divided on the questionwhether the district court had jurisdiction overPetitionersrsquo constitutional claims for equitable reliefId at 15a

11

The majority agreed with the Government that theCSRA provides the exclusive remedy for the termination or constructive termination of federal employees even for facial constitutional challenges likethis one 92 Stat 1111 et seq (codified as amended invarious sections of 5 USC) The CSRA permits non-exempt federal employees such as Petitioners toappeal their terminations to the MSPB if they wereremoved ldquofor such cause as will promote the efficiencyof the servicerdquo 5 USC sect 7513(a) see generally idsectsect 7511-7514 Employees can then appeal the MSPBdecision to the United States Court of Appeals for theFederal Circuit Id sect 7703(b)(1) As the majority notedthis Court has held that though the CSRA does notexplicitly state it is the exclusive remedy itscomprehensiveness generally precludes ordinarydistrict court review of federal employee removals PetApp 6a (citing United States v Fausto 484 US 439 443-55 (1988) and Bush v Lucas 462 US 367 368 (1983))

The majority held that Petitionersrsquo terminationswhich were based solely on 5 USC sect 3328 werenonetheless terminations made for ldquoefficiency of theservicerdquo under 5 USC sect 7513(a) and were thereforesubject to the review procedures outlined by the CSRAPet App 7a-9a Noting the circuit split on thequestion the majority held that the CSRA is theexclusive remedy even when the employee brings onlyconstitutional claims for equitable relief Id at 11a-12a amp 12a n4 Therefore the district court lacked jurisdiction over Petitionersrsquo claims

The majority recognized however that its conclusion might be different if the CSRA provided no

12

remedy for Petitionersrsquo constitutional claims Id at 13a Though the majority did not dispute that theMSPB was powerless to strike down a statute asunconstitutional the majority reasoned that theFederal Circuit had the authority to do so on appealfrom the MSPB Id at 14a Therefore according to themajority the merits of Petitionersrsquo constitutionalclaims could be aired and decided at the Federal Circuit if not the MSPB

Petitioners had argued that their constitutionalclaims could not have been heard in the Federal Circuit because the Federal Circuit has itself repeatedly stated that its jurisdiction on appeal fromthe MSPB is coextensive with the jurisdiction of theMSPB which would not have had jurisdiction overPetitionersrsquo claims The majority disagreed reasoningthat the Federal Circuit had never addressed the question of its jurisdiction under these precisecircumstances and had posited that it would berequired to entertain constitutional claims seekingequitable relief under Webster v Doe 486 US 592 (1988) Pet App 14a (citing Riggin v Office of SenateFair Emprsquot Practices 61 F3d 1563 1570 (Fed Cir 1995) and Brockmann v Deprsquot of the Air Force 27 F3d 544 546-47 (Fed Cir 1994)) Even if the FederalCircuit would have held that it lacked jurisdiction toreview Petitionersrsquo constitutional claims the majorityexplained Petitioners could still have soughtadjudication of their claims on certiorari in this CourtId

Judge Stahl disagreed that the district court lackedjurisdiction but would have rejected Petitionersrsquo claimson the merits Id at 15a Judge Stahl sided with the

13

Third Ninth and DC Circuits and held that because the CSRA does not explicitly state that it prohibitsemployees from bringing constitutional challenges forequitable relief in district court it does not precludesuch actions Id at 23a-24a

Judge Stahl disagreed with the majority thatPetitionersrsquo constitutional claims could have been addressed in the Federal Circuit He explained that theFederal Circuitrsquos jurisdiction has never exceeded thescope of the MSPBrsquos jurisdiction on review of appealsfrom the MSPB even when the appellant assertedconstitutional claims beyond the MSPBrsquos jurisdictionId at 21a-22a (citing Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) (unpublished)) Judge Stahlnoted that in Brockmann v Department of the Air Force relied on by the majority the Federal Circuithypothesized about the possibility of reviewingconstitutional claims but did not actually state that itwould or could do so Id (discussing Brockmann 27 F3d at 546-47) Therefore Judge Stahl reasoned thebetter reading of the Federal Circuitrsquos decisions wasthat it would not have had jurisdiction and the CSRAprocess would not have provided any review ofPetitionersrsquo constitutional claims Id at 22a

14

REASONS FOR GRANTING THE WRIT I This Court Should Resolve the Deep and Enduring

Circuit Split on the Question Whether the CivilService Reform Act Impliedly Precludes FederalDistrict Courts From Granting Equitable Relief onthe Constitutional Claims of Federal Employees As the First Circuit acknowledged this case raises

a question on which there is a deep and longstandingcircuit split whether the CSRA impliedly precludesfederal district courts from exercising jurisdiction overthe constitutional claims of federal employees seekinginjunctive relief Id at 12a n4 24a-25a The Third and DC Circuits have held that the CSRA does not preclude district court jurisdiction over equitableconstitutional claims the First Second and Tenth Circuits have held that it does and four other circuits have recognized the split2

A The Circuit Split 1 Two circuitsmdashthe Third and DC Circuitsmdashhave

held that the CSRA does not preclude federal

2See Am Fedrsquon of Govrsquot Emps Local 1 v Stone 502 F3d 1027 1037-39 (9th Cir 2007) (discussing circuit split) Dotson v Griesa 398 F3d 156 179 (2d Cir 2005) cert denied 547 US 1191 (2006)(ldquoThe circuits are divided as to whether equitable relief such asreinstatement is available to federal employees notwithstandingtheir general agreement that the CSRA precludes Bivens claims for damagesrdquo) Hardison v Cohen 375 F3d 1262 1266 (11th Cir2004) (ldquoSeveral of our sister circuits have differed on whetherequitable relief is precluded by the presence of a statutoryremedial schemerdquo) Paige v Cisneros 91 F3d 40 44 (7th Cir 1996) (discussing circuit split) Mitchum v Hurt 73 F3d 30 34 (3d Cir 1995) (discussing circuit split) Bryant v Cheney 924 F2d 525 525 (4th Cir 1991) (discussing ldquotension among the circuitsrdquo)

15

employees from bringing claims for equitable relief forconstitutional injuries in federal district court Athirdmdashthe Ninth Circuitmdashhas expressly agreed withthe Third and DC Circuits and has held that at least in some circumstances federal employees may bringconstitutional claims for equitable relief in district court

In Hubbard v EPA 809 F2d 1 (DC Cir 1986) adetective with the DC Police Department alleged thathe had been denied a position with the EnvironmentalProtection Agency because of statements he made tothe press about an investigation into illegal drug useby members of Congress Under the CSRA Hubbardcould appeal the decisionmdashincluding his constitutionalclaims under the First Amendmentmdashto OPM and file a petition with the Office of Special Counsel Hubbardbrought a Bivens action in district court for damages aswell as a claim for injunctive relief Id at 1 3 8

Relying on this Courtrsquos decision in Bush v Lucas the DC Circuit held that Hubbardrsquos Bivens claim for damages was precluded by the CSRArsquos comprehensiveremedial scheme In Bush this Court rejected a federalemployeersquos Bivens claim for damages because theldquocomprehensive procedural and substantive provisionsrdquoof the CSRA are ldquospecial factors counselling hesitationin the absence of affirmative action by CongressrdquoBush 462 US at 377 (quoting Carlson v Green 446 US 14 18-19 (1980)) However the DC Circuit ruledthat the CSRA did not preclude Hubbardrsquos claim forequitable relief because to eliminate courtsrsquo jurisdictionover equitable relief for constitutional violationsCongress must do so explicitly and the CSRA did notcontain any provision explicitly eliminating federal

16

court jurisdiction The DC Circuit explained thedifference

The courtsrsquo power to impose equitable remediesagainst agencies is broader than its power toimpose legal remedies against individualsBivens actions are a recent judicial creation and as Carlson v Green made clear comparativelyeasy for Congress to preempt The courtsrsquo power to enjoin unconstitutional acts by the government however is inherent in the Constitution itself see Marbury v Madison 5 US (1 Cranch) 137 LEd 60 (1803) AlthoughCongress may limit this power see Ex Parte McCardle 74 US (7 Wall) 506 19 LEd 264(1869) CSRA did not explicitly limit ourjurisdiction to enjoin unconstitutional personnelactions by federal agencies

Hubbard 809 F2d at 11 n15 The Bivens portion of the Hubbard decision was

reheard and affirmed en banc in Spagnola v Mathis 859 F2d 223 (DC Cir 1988) Although the en banccourt did not rehear the question whether the CSRAalso precludes constitutional claims for equitable reliefit made clear that its decision with regard to theBivens claim left the equitable claim intact ldquo[T]imeand again this court has affirmed the right of civil servants to seek equitable relief against their supervisors and the agency itself in vindication oftheir constitutional rightsrdquo Id at 229-30

In Mitchum v Hurt 73 F3d at 36 the Third Circuit joined the DC Circuit in holding that theCSRA did not preclude district court jurisdiction over

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

2

appointment to a position in an Executive agency (b) The Office of Personnel Management inconsultation with the Director of the Selective Service System shall prescribe regulations tocarry out this section Such regulations shallinclude provisions prescribing procedures for theadjudication of determinations of whether afailure to register was knowing and willful Suchprocedures shall require that such a determination may not be made if the individualconcerned shows by a preponderance of theevidence that the failure to register was neitherknowing nor willful Such procedures mayprovide that determinations of eligibility underthe requirements of this section shall beadjudicated by the Executive agency making theappointment for which the eligibility is determined The Civil Service Reform Act 92 Stat 1111 et seq

outlines administrative procedures available to certainfederal employees for certain adverse employmentactions Relevant portions of the Civil Service ReformAct are reproduced in the Appendix at 108a

STATEMENT OF THE CASE Petitioners Michael B Elgin Aaron Lawson Henry

Tucker and Christon Colby are former federalemployees Each was terminated or constructivelyterminated from his federal employment under 5USC sect 3328 which imposes a lifetime bar on federalexecutive agency employment on men who do not

3

register with the Selective Service between the ages of18 and 26 First Am Compl para 2

Elgin appealed his termination to the MeritSystems Protection Board (MSPB) arguing that 5USC sect 3328 was a Bill of Attainder and that he wasdiscriminated against on the basis of sex The MSPBdismissed Elginrsquos appeal for lack of jurisdiction PetApp 95a 104a1

Elgin Lawson Tucker and Colby then brought thisaction in district court under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 againsttheir former employers the United States the USDepartment of the Treasury and the US Departmentof the Interior First Am Compl para 5 Petitionerschallenged 5 USC sect 3328 as a Bill of Attainder and asviolative of their constitutional rights to equalprotection on the basis of sex seeking injunctive anddeclaratory relief Id para 4 The district court initiallyheld that 5 USC sect 3328 was a Bill of Attainder butdid not violate Petitionersrsquo right to equal protectionand granted Petitionersrsquo partial motion for summaryjudgment Pet App 66a-67a On reconsideration thedistrict court addressed for the first time whether it had jurisdiction over Petitionersrsquo claims and held thatit did Id at 51a However the district court reversed its holding on the merits ruling that 5 USC sect 3328was not a Bill of Attainder Id at 63a-64a

1The unpublished decision of the MSPB is reproduced in theAppendix at 94a It is also available at Elgin v Department of theTreasury No PH-0752-08-0004-I-1 2007 MSPB LEXIS 7502 (MSPB Nov 16 2007)

4

A divided panel of the Court of Appeals for the FirstCircuit vacated the district courtrsquos decision and remanded for entry of a new judgment denyingPetitioners relief for lack of subject matter jurisdictionId at 15a Acknowledging a circuit split (id at 12a n4) the panel majority held that the district courtlacked jurisdiction to review Petitionersrsquo claimsbecause the Civil Service Reform Act (CSRA) 92 Stat1111 et seq impliedly precludes federal district courtsfrom granting equitable relief for constitutional injuries Id at 12a Because the CSRA does not explicitly preclude such relief the concurring judgewould have found that the district court had jurisdiction Id at 18a

A Factual Background The Military Selective Service Act requires all

males to register with the Selective Service betweenthe ages of 18 and 26 upon proclamation of thePresident 50 USC app sect 453 Since 1980 apresidential proclamation has required registrationand all persons are by statute ldquodeemedrdquo to knowabout the registration requirement Proclamation No4771 45 Fed Reg 45247 (July 2 1980) 50 USC appsect 465(a) Failure to register is a crime punishable bya fine of up to $10000 and up to five years in prisonMen can be prosecuted until their 31st birthdays Id sect 462(a) In addition in 1986 Congress enacted 5USC sect 3328 which further penalizes men whoknowingly and willfully fail to register by imposing alifetime bar on federal executive agency employmentRegulations provide for the termination of employeeswho fail to register and the Office of PersonnelManagement (OPM) is responsible for determining

5

whether the failure to register was knowing andwillful 5 CFR sect 300707

The Selective Service System has no record ofregistration for any of the Petitioners Three ofthemmdashElgin Tucker and Colbymdashdid not becomeaware of the registration requirement until after their26th birthdays when it was too late to register ThefourthmdashLawsonmdashknew about the requirement andbelieves that he registered but the Selective ServiceSystem does not have any record of his registrationElgin Lawson and Colby sought determinations thattheir failure to register was not knowing and willfulbut OPM denied their claims

Petitioners are former employees of federal agencies Elgin Lawson and Colby were terminatedsolely under 5 USC sect 3328 because they failed toregister Tucker resigned from one agency when hisfailure to register became apparent and his offer ofemployment from a second agency was withdrawnsolely because he failed to register

1 Michael B Elgin was first hired by the InternalRevenue Service (IRS) an agency of the TreasuryDepartment in 1991 as a low-level data transcriberPet App 95a Over the next sixteen years Elginconsistently received glowing evaluations and waspromoted to positions with increasing responsibilityFirst Am Compl para 31 As part of a routine backgroundinvestigation when he was offered a promotion in 2002the IRS learned that Elgin had not registered with theSelective Service and passed that information on toOPM Id parapara 32-34 Nevertheless Elgin was promotedId para 33

6

In 2003 OPM determined that Elgin was ineligiblefor federal employment under 5 USC sect 3328 becausehe had failed to register with the Selective ServiceElgin sought a waiver that would permit his employment arguing that his failure to register hadnot been knowing and willful because he had not beenaware of the registration requirement at age 18 hewas struggling to complete high school and support hisson while being virtually homeless Id parapara 29-30 OPMdenied his request for a waiver in 2006 BothMassachusetts Senators and the IRS asked OPM to reconsider explaining that Elgin was a valued IRSemployee whose termination would negatively affectthe agency and that Elginrsquos failure to register wasinadvertent Id para 34 OPM denied the Senatorsrsquo and IRSrsquos request Id para 35 Elgin was terminated on July 27 2007 Id para 36

2 Aaron Lawson has been a wildfire fighter since1997 first with the California Department of Forestryand later with the US Forest Service Id para 40 He isa specialist in directing helicopter crews fighting forestfires Id para 41 The Government has spent tens ofthousands of dollars training him to do this dangerouswork Id In 2003 the Bureau of Land Management adivision of the Interior Department in conjunctionwith the US Forest Service hired him as a wildfire fighter helicopter captain Id para 40 After he was hiredLawson learned that the Selective Service has no record of his registration Id Lawson believes that he completed the registration forms at his local post officearound the time of his 18th birthday Id para 39 TheBureau of Land Management and US Forest Servicerequested a waiver from OPM that would make

7

Lawson eligible for employment Id para 42 OPM deniedthe waiver Lawson was terminated Id

3 In 2007 Henry Tucker was a FinancialInstitution Specialist at the Federal Deposit InsuranceCorporation where he had been employed for 17 yearsId para 44 He had never been aware of the requirementto register with the Selective Service Tuckerrsquos motherleft him when he was 16 and he moved frequently as a teenager Id para 43 In December 2007 the FederalDeposit Insurance Corporation learned that Tuckerhad not registered with the Selective Service andreferred the matter to OPM Id para 45

Fearing that he would be fired Tucker resigned andapplied for a position with the National Institutes ofHealth which offered Tucker a job as a BudgetAnalyst Id para 46 It withdrew the offer however afterlearning that Tucker had not registered with theSelective Service Id

4 Christon Colby began working at the IRS in 2001as a temporary employee and was hired permanentlyin 2002 Id parapara 49-52 Colby received consistentlyexcellent performance reviews and was promoted topositions with increasing responsibility Id para 53 In2003 the IRS informed Colby that it had become awareof his failure to register with the Selective Service Id para 54 Colby sought a waiver from OPM on the basisthat his failure to register was not knowing and willfulColby explained that he had moved out of his parentsrsquohome at age 18 and was unaware of the registrationrequirement until he was too old to register Id parapara 47-48 55

8

In 2006 OPM declined to issue a waiver makinghim eligible for employment Id para 57 Colbyrsquossupervisor at the IRS appealed the determinationwithin OPM explaining that Colby was ldquoan extremelyvaluable and integralrdquo employee and noting that theIRS had invested $25000 in training Colby Id para 58OPM affirmed its decision not to issue Colby a waiverand Colby was terminated on August 3 2007 Id parapara 59-60

B Proceedings Before the Merit SystemsProtection Board and the District Court

The Civil Service Reform Act (CSRA) 92 Stat 1111 et seq provides that non-exempt federal employees(such as Petitioners had been) may challenge theirterminations before the Merit Systems ProtectionBoard (MSPB) under certain conditions 5 USCsectsect 7701(a) 7512(1) 7513(d) Shortly after beingterminated under 5 USC sect 3328 Petitioner Elginappealed the decision to the MSPB arguing that 5USC sect 3328 is a Bill of Attainder and that he wassubject to unconstitutional sex-based discriminationbecause the Selective Service registration requirementonly applies to men On November 16 2007 at theTreasury Departmentrsquos urging the MSPB dismissedElginrsquos appeal for lack of jurisdiction Pet App 100a-01a The MSPB explained that it lacked jurisdictionover appeals where employees were terminated underabsolute statutory prohibitions such as 5 USCsect 3328 Id The MSPB also held that it lacked authorityto rule on the constitutionality of a statute and notedthat to the extent it could review any constitutional ordiscrimination claims it did not have jurisdiction over

9

those claims without an explicit grant of jurisdictionwhich was absent here Id at 101a-02a

After Elginrsquos MSPB appeal was dismissed onDecember 28 2007 Elgin joined by Lawson Tuckerand Colby brought this action challenging theconstitutionality of 5 USC sect 3328 in the UnitedStates District Court for the District of Massachusetts against the United States of America the USDepartment of the Treasury and the US Departmentof the Interior (collectively the Government) First AmCompl para 1 Petitioners contended that 5 USC sect 3328is a Bill of Attainder prohibited by Article I Section 9Clause 3 of the Constitution because it legislativelyimposes punishmentmdashthe lifetime bar on federalemploymentmdashon a specific group of men for theirirreversible failure to register Petitioners also contended that because the Selective Service registration requirement and employment bar appliesto men and not women it unlawfully discriminatesunder the equal protection component of the FifthAmendment Id parapara 1 4 Petitioners sought declaratoryand injunctive relief including reinstatement Id para 4The claims were brought under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 andjurisdiction was premised on 28 USC sectsect 1331 1343and 1346 First Am Compl para 5 Petitioners amendedthe complaint in January 2008 to add a class actionclaim Id para 1

The Government moved to dismiss arguing thatPetitionersrsquo claims failed on the merits Pet App 66aThe Government did not at that time contest the district courtrsquos jurisdiction Petitioners responded by

10

opposing the motion to dismiss as to the equalprotection claim and seeking partial summaryjudgment as to liability on the Bill of Attainder claimAfter a hearing the district court granted Petitionersrsquomotion for partial summary judgment holding that 5USC sect 3328 was a Bill of Attainder and granted theGovernmentrsquos motion to dismiss in part holding thatthe Selective Service scheme did not violate Petitionersrsquo rights to equal protection Id at 66a-67a

Petitioners then filed a motion for class certification and sought a preliminary injunction reinstatingPetitioners The Government filed a motion for reconsideration of the district courtrsquos grant of summaryjudgment on the Bill of Attainder claim contendingboth that the claim failed on the merits and arguing forthe first time that the district court did not have subject matter jurisdiction over the claim because theCSRA precludes district court review of federalemployment decisions Id at 41a-42a The district court held that it did have jurisdiction but granted themotion for reconsideration because it determined on reexamination that 5 USC sect 3328 was not a Bill ofAttainder Id at 51a 63a-64a

C Proceedings Before the First Circuit Petitioners appealed the district courtrsquos decisions

dismissing the equal protection claim and granting themotion for reconsideration on the Bill of Attainder claim to the United States Court of Appeals for theFirst Circuit The panel agreed that Petitionersrsquo claimsshould be dismissed but was divided on the questionwhether the district court had jurisdiction overPetitionersrsquo constitutional claims for equitable reliefId at 15a

11

The majority agreed with the Government that theCSRA provides the exclusive remedy for the termination or constructive termination of federal employees even for facial constitutional challenges likethis one 92 Stat 1111 et seq (codified as amended invarious sections of 5 USC) The CSRA permits non-exempt federal employees such as Petitioners toappeal their terminations to the MSPB if they wereremoved ldquofor such cause as will promote the efficiencyof the servicerdquo 5 USC sect 7513(a) see generally idsectsect 7511-7514 Employees can then appeal the MSPBdecision to the United States Court of Appeals for theFederal Circuit Id sect 7703(b)(1) As the majority notedthis Court has held that though the CSRA does notexplicitly state it is the exclusive remedy itscomprehensiveness generally precludes ordinarydistrict court review of federal employee removals PetApp 6a (citing United States v Fausto 484 US 439 443-55 (1988) and Bush v Lucas 462 US 367 368 (1983))

The majority held that Petitionersrsquo terminationswhich were based solely on 5 USC sect 3328 werenonetheless terminations made for ldquoefficiency of theservicerdquo under 5 USC sect 7513(a) and were thereforesubject to the review procedures outlined by the CSRAPet App 7a-9a Noting the circuit split on thequestion the majority held that the CSRA is theexclusive remedy even when the employee brings onlyconstitutional claims for equitable relief Id at 11a-12a amp 12a n4 Therefore the district court lacked jurisdiction over Petitionersrsquo claims

The majority recognized however that its conclusion might be different if the CSRA provided no

12

remedy for Petitionersrsquo constitutional claims Id at 13a Though the majority did not dispute that theMSPB was powerless to strike down a statute asunconstitutional the majority reasoned that theFederal Circuit had the authority to do so on appealfrom the MSPB Id at 14a Therefore according to themajority the merits of Petitionersrsquo constitutionalclaims could be aired and decided at the Federal Circuit if not the MSPB

Petitioners had argued that their constitutionalclaims could not have been heard in the Federal Circuit because the Federal Circuit has itself repeatedly stated that its jurisdiction on appeal fromthe MSPB is coextensive with the jurisdiction of theMSPB which would not have had jurisdiction overPetitionersrsquo claims The majority disagreed reasoningthat the Federal Circuit had never addressed the question of its jurisdiction under these precisecircumstances and had posited that it would berequired to entertain constitutional claims seekingequitable relief under Webster v Doe 486 US 592 (1988) Pet App 14a (citing Riggin v Office of SenateFair Emprsquot Practices 61 F3d 1563 1570 (Fed Cir 1995) and Brockmann v Deprsquot of the Air Force 27 F3d 544 546-47 (Fed Cir 1994)) Even if the FederalCircuit would have held that it lacked jurisdiction toreview Petitionersrsquo constitutional claims the majorityexplained Petitioners could still have soughtadjudication of their claims on certiorari in this CourtId

Judge Stahl disagreed that the district court lackedjurisdiction but would have rejected Petitionersrsquo claimson the merits Id at 15a Judge Stahl sided with the

13

Third Ninth and DC Circuits and held that because the CSRA does not explicitly state that it prohibitsemployees from bringing constitutional challenges forequitable relief in district court it does not precludesuch actions Id at 23a-24a

Judge Stahl disagreed with the majority thatPetitionersrsquo constitutional claims could have been addressed in the Federal Circuit He explained that theFederal Circuitrsquos jurisdiction has never exceeded thescope of the MSPBrsquos jurisdiction on review of appealsfrom the MSPB even when the appellant assertedconstitutional claims beyond the MSPBrsquos jurisdictionId at 21a-22a (citing Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) (unpublished)) Judge Stahlnoted that in Brockmann v Department of the Air Force relied on by the majority the Federal Circuithypothesized about the possibility of reviewingconstitutional claims but did not actually state that itwould or could do so Id (discussing Brockmann 27 F3d at 546-47) Therefore Judge Stahl reasoned thebetter reading of the Federal Circuitrsquos decisions wasthat it would not have had jurisdiction and the CSRAprocess would not have provided any review ofPetitionersrsquo constitutional claims Id at 22a

14

REASONS FOR GRANTING THE WRIT I This Court Should Resolve the Deep and Enduring

Circuit Split on the Question Whether the CivilService Reform Act Impliedly Precludes FederalDistrict Courts From Granting Equitable Relief onthe Constitutional Claims of Federal Employees As the First Circuit acknowledged this case raises

a question on which there is a deep and longstandingcircuit split whether the CSRA impliedly precludesfederal district courts from exercising jurisdiction overthe constitutional claims of federal employees seekinginjunctive relief Id at 12a n4 24a-25a The Third and DC Circuits have held that the CSRA does not preclude district court jurisdiction over equitableconstitutional claims the First Second and Tenth Circuits have held that it does and four other circuits have recognized the split2

A The Circuit Split 1 Two circuitsmdashthe Third and DC Circuitsmdashhave

held that the CSRA does not preclude federal

2See Am Fedrsquon of Govrsquot Emps Local 1 v Stone 502 F3d 1027 1037-39 (9th Cir 2007) (discussing circuit split) Dotson v Griesa 398 F3d 156 179 (2d Cir 2005) cert denied 547 US 1191 (2006)(ldquoThe circuits are divided as to whether equitable relief such asreinstatement is available to federal employees notwithstandingtheir general agreement that the CSRA precludes Bivens claims for damagesrdquo) Hardison v Cohen 375 F3d 1262 1266 (11th Cir2004) (ldquoSeveral of our sister circuits have differed on whetherequitable relief is precluded by the presence of a statutoryremedial schemerdquo) Paige v Cisneros 91 F3d 40 44 (7th Cir 1996) (discussing circuit split) Mitchum v Hurt 73 F3d 30 34 (3d Cir 1995) (discussing circuit split) Bryant v Cheney 924 F2d 525 525 (4th Cir 1991) (discussing ldquotension among the circuitsrdquo)

15

employees from bringing claims for equitable relief forconstitutional injuries in federal district court Athirdmdashthe Ninth Circuitmdashhas expressly agreed withthe Third and DC Circuits and has held that at least in some circumstances federal employees may bringconstitutional claims for equitable relief in district court

In Hubbard v EPA 809 F2d 1 (DC Cir 1986) adetective with the DC Police Department alleged thathe had been denied a position with the EnvironmentalProtection Agency because of statements he made tothe press about an investigation into illegal drug useby members of Congress Under the CSRA Hubbardcould appeal the decisionmdashincluding his constitutionalclaims under the First Amendmentmdashto OPM and file a petition with the Office of Special Counsel Hubbardbrought a Bivens action in district court for damages aswell as a claim for injunctive relief Id at 1 3 8

Relying on this Courtrsquos decision in Bush v Lucas the DC Circuit held that Hubbardrsquos Bivens claim for damages was precluded by the CSRArsquos comprehensiveremedial scheme In Bush this Court rejected a federalemployeersquos Bivens claim for damages because theldquocomprehensive procedural and substantive provisionsrdquoof the CSRA are ldquospecial factors counselling hesitationin the absence of affirmative action by CongressrdquoBush 462 US at 377 (quoting Carlson v Green 446 US 14 18-19 (1980)) However the DC Circuit ruledthat the CSRA did not preclude Hubbardrsquos claim forequitable relief because to eliminate courtsrsquo jurisdictionover equitable relief for constitutional violationsCongress must do so explicitly and the CSRA did notcontain any provision explicitly eliminating federal

16

court jurisdiction The DC Circuit explained thedifference

The courtsrsquo power to impose equitable remediesagainst agencies is broader than its power toimpose legal remedies against individualsBivens actions are a recent judicial creation and as Carlson v Green made clear comparativelyeasy for Congress to preempt The courtsrsquo power to enjoin unconstitutional acts by the government however is inherent in the Constitution itself see Marbury v Madison 5 US (1 Cranch) 137 LEd 60 (1803) AlthoughCongress may limit this power see Ex Parte McCardle 74 US (7 Wall) 506 19 LEd 264(1869) CSRA did not explicitly limit ourjurisdiction to enjoin unconstitutional personnelactions by federal agencies

Hubbard 809 F2d at 11 n15 The Bivens portion of the Hubbard decision was

reheard and affirmed en banc in Spagnola v Mathis 859 F2d 223 (DC Cir 1988) Although the en banccourt did not rehear the question whether the CSRAalso precludes constitutional claims for equitable reliefit made clear that its decision with regard to theBivens claim left the equitable claim intact ldquo[T]imeand again this court has affirmed the right of civil servants to seek equitable relief against their supervisors and the agency itself in vindication oftheir constitutional rightsrdquo Id at 229-30

In Mitchum v Hurt 73 F3d at 36 the Third Circuit joined the DC Circuit in holding that theCSRA did not preclude district court jurisdiction over

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

3

register with the Selective Service between the ages of18 and 26 First Am Compl para 2

Elgin appealed his termination to the MeritSystems Protection Board (MSPB) arguing that 5USC sect 3328 was a Bill of Attainder and that he wasdiscriminated against on the basis of sex The MSPBdismissed Elginrsquos appeal for lack of jurisdiction PetApp 95a 104a1

Elgin Lawson Tucker and Colby then brought thisaction in district court under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 againsttheir former employers the United States the USDepartment of the Treasury and the US Departmentof the Interior First Am Compl para 5 Petitionerschallenged 5 USC sect 3328 as a Bill of Attainder and asviolative of their constitutional rights to equalprotection on the basis of sex seeking injunctive anddeclaratory relief Id para 4 The district court initiallyheld that 5 USC sect 3328 was a Bill of Attainder butdid not violate Petitionersrsquo right to equal protectionand granted Petitionersrsquo partial motion for summaryjudgment Pet App 66a-67a On reconsideration thedistrict court addressed for the first time whether it had jurisdiction over Petitionersrsquo claims and held thatit did Id at 51a However the district court reversed its holding on the merits ruling that 5 USC sect 3328was not a Bill of Attainder Id at 63a-64a

1The unpublished decision of the MSPB is reproduced in theAppendix at 94a It is also available at Elgin v Department of theTreasury No PH-0752-08-0004-I-1 2007 MSPB LEXIS 7502 (MSPB Nov 16 2007)

4

A divided panel of the Court of Appeals for the FirstCircuit vacated the district courtrsquos decision and remanded for entry of a new judgment denyingPetitioners relief for lack of subject matter jurisdictionId at 15a Acknowledging a circuit split (id at 12a n4) the panel majority held that the district courtlacked jurisdiction to review Petitionersrsquo claimsbecause the Civil Service Reform Act (CSRA) 92 Stat1111 et seq impliedly precludes federal district courtsfrom granting equitable relief for constitutional injuries Id at 12a Because the CSRA does not explicitly preclude such relief the concurring judgewould have found that the district court had jurisdiction Id at 18a

A Factual Background The Military Selective Service Act requires all

males to register with the Selective Service betweenthe ages of 18 and 26 upon proclamation of thePresident 50 USC app sect 453 Since 1980 apresidential proclamation has required registrationand all persons are by statute ldquodeemedrdquo to knowabout the registration requirement Proclamation No4771 45 Fed Reg 45247 (July 2 1980) 50 USC appsect 465(a) Failure to register is a crime punishable bya fine of up to $10000 and up to five years in prisonMen can be prosecuted until their 31st birthdays Id sect 462(a) In addition in 1986 Congress enacted 5USC sect 3328 which further penalizes men whoknowingly and willfully fail to register by imposing alifetime bar on federal executive agency employmentRegulations provide for the termination of employeeswho fail to register and the Office of PersonnelManagement (OPM) is responsible for determining

5

whether the failure to register was knowing andwillful 5 CFR sect 300707

The Selective Service System has no record ofregistration for any of the Petitioners Three ofthemmdashElgin Tucker and Colbymdashdid not becomeaware of the registration requirement until after their26th birthdays when it was too late to register ThefourthmdashLawsonmdashknew about the requirement andbelieves that he registered but the Selective ServiceSystem does not have any record of his registrationElgin Lawson and Colby sought determinations thattheir failure to register was not knowing and willfulbut OPM denied their claims

Petitioners are former employees of federal agencies Elgin Lawson and Colby were terminatedsolely under 5 USC sect 3328 because they failed toregister Tucker resigned from one agency when hisfailure to register became apparent and his offer ofemployment from a second agency was withdrawnsolely because he failed to register

1 Michael B Elgin was first hired by the InternalRevenue Service (IRS) an agency of the TreasuryDepartment in 1991 as a low-level data transcriberPet App 95a Over the next sixteen years Elginconsistently received glowing evaluations and waspromoted to positions with increasing responsibilityFirst Am Compl para 31 As part of a routine backgroundinvestigation when he was offered a promotion in 2002the IRS learned that Elgin had not registered with theSelective Service and passed that information on toOPM Id parapara 32-34 Nevertheless Elgin was promotedId para 33

6

In 2003 OPM determined that Elgin was ineligiblefor federal employment under 5 USC sect 3328 becausehe had failed to register with the Selective ServiceElgin sought a waiver that would permit his employment arguing that his failure to register hadnot been knowing and willful because he had not beenaware of the registration requirement at age 18 hewas struggling to complete high school and support hisson while being virtually homeless Id parapara 29-30 OPMdenied his request for a waiver in 2006 BothMassachusetts Senators and the IRS asked OPM to reconsider explaining that Elgin was a valued IRSemployee whose termination would negatively affectthe agency and that Elginrsquos failure to register wasinadvertent Id para 34 OPM denied the Senatorsrsquo and IRSrsquos request Id para 35 Elgin was terminated on July 27 2007 Id para 36

2 Aaron Lawson has been a wildfire fighter since1997 first with the California Department of Forestryand later with the US Forest Service Id para 40 He isa specialist in directing helicopter crews fighting forestfires Id para 41 The Government has spent tens ofthousands of dollars training him to do this dangerouswork Id In 2003 the Bureau of Land Management adivision of the Interior Department in conjunctionwith the US Forest Service hired him as a wildfire fighter helicopter captain Id para 40 After he was hiredLawson learned that the Selective Service has no record of his registration Id Lawson believes that he completed the registration forms at his local post officearound the time of his 18th birthday Id para 39 TheBureau of Land Management and US Forest Servicerequested a waiver from OPM that would make

7

Lawson eligible for employment Id para 42 OPM deniedthe waiver Lawson was terminated Id

3 In 2007 Henry Tucker was a FinancialInstitution Specialist at the Federal Deposit InsuranceCorporation where he had been employed for 17 yearsId para 44 He had never been aware of the requirementto register with the Selective Service Tuckerrsquos motherleft him when he was 16 and he moved frequently as a teenager Id para 43 In December 2007 the FederalDeposit Insurance Corporation learned that Tuckerhad not registered with the Selective Service andreferred the matter to OPM Id para 45

Fearing that he would be fired Tucker resigned andapplied for a position with the National Institutes ofHealth which offered Tucker a job as a BudgetAnalyst Id para 46 It withdrew the offer however afterlearning that Tucker had not registered with theSelective Service Id

4 Christon Colby began working at the IRS in 2001as a temporary employee and was hired permanentlyin 2002 Id parapara 49-52 Colby received consistentlyexcellent performance reviews and was promoted topositions with increasing responsibility Id para 53 In2003 the IRS informed Colby that it had become awareof his failure to register with the Selective Service Id para 54 Colby sought a waiver from OPM on the basisthat his failure to register was not knowing and willfulColby explained that he had moved out of his parentsrsquohome at age 18 and was unaware of the registrationrequirement until he was too old to register Id parapara 47-48 55

8

In 2006 OPM declined to issue a waiver makinghim eligible for employment Id para 57 Colbyrsquossupervisor at the IRS appealed the determinationwithin OPM explaining that Colby was ldquoan extremelyvaluable and integralrdquo employee and noting that theIRS had invested $25000 in training Colby Id para 58OPM affirmed its decision not to issue Colby a waiverand Colby was terminated on August 3 2007 Id parapara 59-60

B Proceedings Before the Merit SystemsProtection Board and the District Court

The Civil Service Reform Act (CSRA) 92 Stat 1111 et seq provides that non-exempt federal employees(such as Petitioners had been) may challenge theirterminations before the Merit Systems ProtectionBoard (MSPB) under certain conditions 5 USCsectsect 7701(a) 7512(1) 7513(d) Shortly after beingterminated under 5 USC sect 3328 Petitioner Elginappealed the decision to the MSPB arguing that 5USC sect 3328 is a Bill of Attainder and that he wassubject to unconstitutional sex-based discriminationbecause the Selective Service registration requirementonly applies to men On November 16 2007 at theTreasury Departmentrsquos urging the MSPB dismissedElginrsquos appeal for lack of jurisdiction Pet App 100a-01a The MSPB explained that it lacked jurisdictionover appeals where employees were terminated underabsolute statutory prohibitions such as 5 USCsect 3328 Id The MSPB also held that it lacked authorityto rule on the constitutionality of a statute and notedthat to the extent it could review any constitutional ordiscrimination claims it did not have jurisdiction over

9

those claims without an explicit grant of jurisdictionwhich was absent here Id at 101a-02a

After Elginrsquos MSPB appeal was dismissed onDecember 28 2007 Elgin joined by Lawson Tuckerand Colby brought this action challenging theconstitutionality of 5 USC sect 3328 in the UnitedStates District Court for the District of Massachusetts against the United States of America the USDepartment of the Treasury and the US Departmentof the Interior (collectively the Government) First AmCompl para 1 Petitioners contended that 5 USC sect 3328is a Bill of Attainder prohibited by Article I Section 9Clause 3 of the Constitution because it legislativelyimposes punishmentmdashthe lifetime bar on federalemploymentmdashon a specific group of men for theirirreversible failure to register Petitioners also contended that because the Selective Service registration requirement and employment bar appliesto men and not women it unlawfully discriminatesunder the equal protection component of the FifthAmendment Id parapara 1 4 Petitioners sought declaratoryand injunctive relief including reinstatement Id para 4The claims were brought under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 andjurisdiction was premised on 28 USC sectsect 1331 1343and 1346 First Am Compl para 5 Petitioners amendedthe complaint in January 2008 to add a class actionclaim Id para 1

The Government moved to dismiss arguing thatPetitionersrsquo claims failed on the merits Pet App 66aThe Government did not at that time contest the district courtrsquos jurisdiction Petitioners responded by

10

opposing the motion to dismiss as to the equalprotection claim and seeking partial summaryjudgment as to liability on the Bill of Attainder claimAfter a hearing the district court granted Petitionersrsquomotion for partial summary judgment holding that 5USC sect 3328 was a Bill of Attainder and granted theGovernmentrsquos motion to dismiss in part holding thatthe Selective Service scheme did not violate Petitionersrsquo rights to equal protection Id at 66a-67a

Petitioners then filed a motion for class certification and sought a preliminary injunction reinstatingPetitioners The Government filed a motion for reconsideration of the district courtrsquos grant of summaryjudgment on the Bill of Attainder claim contendingboth that the claim failed on the merits and arguing forthe first time that the district court did not have subject matter jurisdiction over the claim because theCSRA precludes district court review of federalemployment decisions Id at 41a-42a The district court held that it did have jurisdiction but granted themotion for reconsideration because it determined on reexamination that 5 USC sect 3328 was not a Bill ofAttainder Id at 51a 63a-64a

C Proceedings Before the First Circuit Petitioners appealed the district courtrsquos decisions

dismissing the equal protection claim and granting themotion for reconsideration on the Bill of Attainder claim to the United States Court of Appeals for theFirst Circuit The panel agreed that Petitionersrsquo claimsshould be dismissed but was divided on the questionwhether the district court had jurisdiction overPetitionersrsquo constitutional claims for equitable reliefId at 15a

11

The majority agreed with the Government that theCSRA provides the exclusive remedy for the termination or constructive termination of federal employees even for facial constitutional challenges likethis one 92 Stat 1111 et seq (codified as amended invarious sections of 5 USC) The CSRA permits non-exempt federal employees such as Petitioners toappeal their terminations to the MSPB if they wereremoved ldquofor such cause as will promote the efficiencyof the servicerdquo 5 USC sect 7513(a) see generally idsectsect 7511-7514 Employees can then appeal the MSPBdecision to the United States Court of Appeals for theFederal Circuit Id sect 7703(b)(1) As the majority notedthis Court has held that though the CSRA does notexplicitly state it is the exclusive remedy itscomprehensiveness generally precludes ordinarydistrict court review of federal employee removals PetApp 6a (citing United States v Fausto 484 US 439 443-55 (1988) and Bush v Lucas 462 US 367 368 (1983))

The majority held that Petitionersrsquo terminationswhich were based solely on 5 USC sect 3328 werenonetheless terminations made for ldquoefficiency of theservicerdquo under 5 USC sect 7513(a) and were thereforesubject to the review procedures outlined by the CSRAPet App 7a-9a Noting the circuit split on thequestion the majority held that the CSRA is theexclusive remedy even when the employee brings onlyconstitutional claims for equitable relief Id at 11a-12a amp 12a n4 Therefore the district court lacked jurisdiction over Petitionersrsquo claims

The majority recognized however that its conclusion might be different if the CSRA provided no

12

remedy for Petitionersrsquo constitutional claims Id at 13a Though the majority did not dispute that theMSPB was powerless to strike down a statute asunconstitutional the majority reasoned that theFederal Circuit had the authority to do so on appealfrom the MSPB Id at 14a Therefore according to themajority the merits of Petitionersrsquo constitutionalclaims could be aired and decided at the Federal Circuit if not the MSPB

Petitioners had argued that their constitutionalclaims could not have been heard in the Federal Circuit because the Federal Circuit has itself repeatedly stated that its jurisdiction on appeal fromthe MSPB is coextensive with the jurisdiction of theMSPB which would not have had jurisdiction overPetitionersrsquo claims The majority disagreed reasoningthat the Federal Circuit had never addressed the question of its jurisdiction under these precisecircumstances and had posited that it would berequired to entertain constitutional claims seekingequitable relief under Webster v Doe 486 US 592 (1988) Pet App 14a (citing Riggin v Office of SenateFair Emprsquot Practices 61 F3d 1563 1570 (Fed Cir 1995) and Brockmann v Deprsquot of the Air Force 27 F3d 544 546-47 (Fed Cir 1994)) Even if the FederalCircuit would have held that it lacked jurisdiction toreview Petitionersrsquo constitutional claims the majorityexplained Petitioners could still have soughtadjudication of their claims on certiorari in this CourtId

Judge Stahl disagreed that the district court lackedjurisdiction but would have rejected Petitionersrsquo claimson the merits Id at 15a Judge Stahl sided with the

13

Third Ninth and DC Circuits and held that because the CSRA does not explicitly state that it prohibitsemployees from bringing constitutional challenges forequitable relief in district court it does not precludesuch actions Id at 23a-24a

Judge Stahl disagreed with the majority thatPetitionersrsquo constitutional claims could have been addressed in the Federal Circuit He explained that theFederal Circuitrsquos jurisdiction has never exceeded thescope of the MSPBrsquos jurisdiction on review of appealsfrom the MSPB even when the appellant assertedconstitutional claims beyond the MSPBrsquos jurisdictionId at 21a-22a (citing Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) (unpublished)) Judge Stahlnoted that in Brockmann v Department of the Air Force relied on by the majority the Federal Circuithypothesized about the possibility of reviewingconstitutional claims but did not actually state that itwould or could do so Id (discussing Brockmann 27 F3d at 546-47) Therefore Judge Stahl reasoned thebetter reading of the Federal Circuitrsquos decisions wasthat it would not have had jurisdiction and the CSRAprocess would not have provided any review ofPetitionersrsquo constitutional claims Id at 22a

14

REASONS FOR GRANTING THE WRIT I This Court Should Resolve the Deep and Enduring

Circuit Split on the Question Whether the CivilService Reform Act Impliedly Precludes FederalDistrict Courts From Granting Equitable Relief onthe Constitutional Claims of Federal Employees As the First Circuit acknowledged this case raises

a question on which there is a deep and longstandingcircuit split whether the CSRA impliedly precludesfederal district courts from exercising jurisdiction overthe constitutional claims of federal employees seekinginjunctive relief Id at 12a n4 24a-25a The Third and DC Circuits have held that the CSRA does not preclude district court jurisdiction over equitableconstitutional claims the First Second and Tenth Circuits have held that it does and four other circuits have recognized the split2

A The Circuit Split 1 Two circuitsmdashthe Third and DC Circuitsmdashhave

held that the CSRA does not preclude federal

2See Am Fedrsquon of Govrsquot Emps Local 1 v Stone 502 F3d 1027 1037-39 (9th Cir 2007) (discussing circuit split) Dotson v Griesa 398 F3d 156 179 (2d Cir 2005) cert denied 547 US 1191 (2006)(ldquoThe circuits are divided as to whether equitable relief such asreinstatement is available to federal employees notwithstandingtheir general agreement that the CSRA precludes Bivens claims for damagesrdquo) Hardison v Cohen 375 F3d 1262 1266 (11th Cir2004) (ldquoSeveral of our sister circuits have differed on whetherequitable relief is precluded by the presence of a statutoryremedial schemerdquo) Paige v Cisneros 91 F3d 40 44 (7th Cir 1996) (discussing circuit split) Mitchum v Hurt 73 F3d 30 34 (3d Cir 1995) (discussing circuit split) Bryant v Cheney 924 F2d 525 525 (4th Cir 1991) (discussing ldquotension among the circuitsrdquo)

15

employees from bringing claims for equitable relief forconstitutional injuries in federal district court Athirdmdashthe Ninth Circuitmdashhas expressly agreed withthe Third and DC Circuits and has held that at least in some circumstances federal employees may bringconstitutional claims for equitable relief in district court

In Hubbard v EPA 809 F2d 1 (DC Cir 1986) adetective with the DC Police Department alleged thathe had been denied a position with the EnvironmentalProtection Agency because of statements he made tothe press about an investigation into illegal drug useby members of Congress Under the CSRA Hubbardcould appeal the decisionmdashincluding his constitutionalclaims under the First Amendmentmdashto OPM and file a petition with the Office of Special Counsel Hubbardbrought a Bivens action in district court for damages aswell as a claim for injunctive relief Id at 1 3 8

Relying on this Courtrsquos decision in Bush v Lucas the DC Circuit held that Hubbardrsquos Bivens claim for damages was precluded by the CSRArsquos comprehensiveremedial scheme In Bush this Court rejected a federalemployeersquos Bivens claim for damages because theldquocomprehensive procedural and substantive provisionsrdquoof the CSRA are ldquospecial factors counselling hesitationin the absence of affirmative action by CongressrdquoBush 462 US at 377 (quoting Carlson v Green 446 US 14 18-19 (1980)) However the DC Circuit ruledthat the CSRA did not preclude Hubbardrsquos claim forequitable relief because to eliminate courtsrsquo jurisdictionover equitable relief for constitutional violationsCongress must do so explicitly and the CSRA did notcontain any provision explicitly eliminating federal

16

court jurisdiction The DC Circuit explained thedifference

The courtsrsquo power to impose equitable remediesagainst agencies is broader than its power toimpose legal remedies against individualsBivens actions are a recent judicial creation and as Carlson v Green made clear comparativelyeasy for Congress to preempt The courtsrsquo power to enjoin unconstitutional acts by the government however is inherent in the Constitution itself see Marbury v Madison 5 US (1 Cranch) 137 LEd 60 (1803) AlthoughCongress may limit this power see Ex Parte McCardle 74 US (7 Wall) 506 19 LEd 264(1869) CSRA did not explicitly limit ourjurisdiction to enjoin unconstitutional personnelactions by federal agencies

Hubbard 809 F2d at 11 n15 The Bivens portion of the Hubbard decision was

reheard and affirmed en banc in Spagnola v Mathis 859 F2d 223 (DC Cir 1988) Although the en banccourt did not rehear the question whether the CSRAalso precludes constitutional claims for equitable reliefit made clear that its decision with regard to theBivens claim left the equitable claim intact ldquo[T]imeand again this court has affirmed the right of civil servants to seek equitable relief against their supervisors and the agency itself in vindication oftheir constitutional rightsrdquo Id at 229-30

In Mitchum v Hurt 73 F3d at 36 the Third Circuit joined the DC Circuit in holding that theCSRA did not preclude district court jurisdiction over

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

4

A divided panel of the Court of Appeals for the FirstCircuit vacated the district courtrsquos decision and remanded for entry of a new judgment denyingPetitioners relief for lack of subject matter jurisdictionId at 15a Acknowledging a circuit split (id at 12a n4) the panel majority held that the district courtlacked jurisdiction to review Petitionersrsquo claimsbecause the Civil Service Reform Act (CSRA) 92 Stat1111 et seq impliedly precludes federal district courtsfrom granting equitable relief for constitutional injuries Id at 12a Because the CSRA does not explicitly preclude such relief the concurring judgewould have found that the district court had jurisdiction Id at 18a

A Factual Background The Military Selective Service Act requires all

males to register with the Selective Service betweenthe ages of 18 and 26 upon proclamation of thePresident 50 USC app sect 453 Since 1980 apresidential proclamation has required registrationand all persons are by statute ldquodeemedrdquo to knowabout the registration requirement Proclamation No4771 45 Fed Reg 45247 (July 2 1980) 50 USC appsect 465(a) Failure to register is a crime punishable bya fine of up to $10000 and up to five years in prisonMen can be prosecuted until their 31st birthdays Id sect 462(a) In addition in 1986 Congress enacted 5USC sect 3328 which further penalizes men whoknowingly and willfully fail to register by imposing alifetime bar on federal executive agency employmentRegulations provide for the termination of employeeswho fail to register and the Office of PersonnelManagement (OPM) is responsible for determining

5

whether the failure to register was knowing andwillful 5 CFR sect 300707

The Selective Service System has no record ofregistration for any of the Petitioners Three ofthemmdashElgin Tucker and Colbymdashdid not becomeaware of the registration requirement until after their26th birthdays when it was too late to register ThefourthmdashLawsonmdashknew about the requirement andbelieves that he registered but the Selective ServiceSystem does not have any record of his registrationElgin Lawson and Colby sought determinations thattheir failure to register was not knowing and willfulbut OPM denied their claims

Petitioners are former employees of federal agencies Elgin Lawson and Colby were terminatedsolely under 5 USC sect 3328 because they failed toregister Tucker resigned from one agency when hisfailure to register became apparent and his offer ofemployment from a second agency was withdrawnsolely because he failed to register

1 Michael B Elgin was first hired by the InternalRevenue Service (IRS) an agency of the TreasuryDepartment in 1991 as a low-level data transcriberPet App 95a Over the next sixteen years Elginconsistently received glowing evaluations and waspromoted to positions with increasing responsibilityFirst Am Compl para 31 As part of a routine backgroundinvestigation when he was offered a promotion in 2002the IRS learned that Elgin had not registered with theSelective Service and passed that information on toOPM Id parapara 32-34 Nevertheless Elgin was promotedId para 33

6

In 2003 OPM determined that Elgin was ineligiblefor federal employment under 5 USC sect 3328 becausehe had failed to register with the Selective ServiceElgin sought a waiver that would permit his employment arguing that his failure to register hadnot been knowing and willful because he had not beenaware of the registration requirement at age 18 hewas struggling to complete high school and support hisson while being virtually homeless Id parapara 29-30 OPMdenied his request for a waiver in 2006 BothMassachusetts Senators and the IRS asked OPM to reconsider explaining that Elgin was a valued IRSemployee whose termination would negatively affectthe agency and that Elginrsquos failure to register wasinadvertent Id para 34 OPM denied the Senatorsrsquo and IRSrsquos request Id para 35 Elgin was terminated on July 27 2007 Id para 36

2 Aaron Lawson has been a wildfire fighter since1997 first with the California Department of Forestryand later with the US Forest Service Id para 40 He isa specialist in directing helicopter crews fighting forestfires Id para 41 The Government has spent tens ofthousands of dollars training him to do this dangerouswork Id In 2003 the Bureau of Land Management adivision of the Interior Department in conjunctionwith the US Forest Service hired him as a wildfire fighter helicopter captain Id para 40 After he was hiredLawson learned that the Selective Service has no record of his registration Id Lawson believes that he completed the registration forms at his local post officearound the time of his 18th birthday Id para 39 TheBureau of Land Management and US Forest Servicerequested a waiver from OPM that would make

7

Lawson eligible for employment Id para 42 OPM deniedthe waiver Lawson was terminated Id

3 In 2007 Henry Tucker was a FinancialInstitution Specialist at the Federal Deposit InsuranceCorporation where he had been employed for 17 yearsId para 44 He had never been aware of the requirementto register with the Selective Service Tuckerrsquos motherleft him when he was 16 and he moved frequently as a teenager Id para 43 In December 2007 the FederalDeposit Insurance Corporation learned that Tuckerhad not registered with the Selective Service andreferred the matter to OPM Id para 45

Fearing that he would be fired Tucker resigned andapplied for a position with the National Institutes ofHealth which offered Tucker a job as a BudgetAnalyst Id para 46 It withdrew the offer however afterlearning that Tucker had not registered with theSelective Service Id

4 Christon Colby began working at the IRS in 2001as a temporary employee and was hired permanentlyin 2002 Id parapara 49-52 Colby received consistentlyexcellent performance reviews and was promoted topositions with increasing responsibility Id para 53 In2003 the IRS informed Colby that it had become awareof his failure to register with the Selective Service Id para 54 Colby sought a waiver from OPM on the basisthat his failure to register was not knowing and willfulColby explained that he had moved out of his parentsrsquohome at age 18 and was unaware of the registrationrequirement until he was too old to register Id parapara 47-48 55

8

In 2006 OPM declined to issue a waiver makinghim eligible for employment Id para 57 Colbyrsquossupervisor at the IRS appealed the determinationwithin OPM explaining that Colby was ldquoan extremelyvaluable and integralrdquo employee and noting that theIRS had invested $25000 in training Colby Id para 58OPM affirmed its decision not to issue Colby a waiverand Colby was terminated on August 3 2007 Id parapara 59-60

B Proceedings Before the Merit SystemsProtection Board and the District Court

The Civil Service Reform Act (CSRA) 92 Stat 1111 et seq provides that non-exempt federal employees(such as Petitioners had been) may challenge theirterminations before the Merit Systems ProtectionBoard (MSPB) under certain conditions 5 USCsectsect 7701(a) 7512(1) 7513(d) Shortly after beingterminated under 5 USC sect 3328 Petitioner Elginappealed the decision to the MSPB arguing that 5USC sect 3328 is a Bill of Attainder and that he wassubject to unconstitutional sex-based discriminationbecause the Selective Service registration requirementonly applies to men On November 16 2007 at theTreasury Departmentrsquos urging the MSPB dismissedElginrsquos appeal for lack of jurisdiction Pet App 100a-01a The MSPB explained that it lacked jurisdictionover appeals where employees were terminated underabsolute statutory prohibitions such as 5 USCsect 3328 Id The MSPB also held that it lacked authorityto rule on the constitutionality of a statute and notedthat to the extent it could review any constitutional ordiscrimination claims it did not have jurisdiction over

9

those claims without an explicit grant of jurisdictionwhich was absent here Id at 101a-02a

After Elginrsquos MSPB appeal was dismissed onDecember 28 2007 Elgin joined by Lawson Tuckerand Colby brought this action challenging theconstitutionality of 5 USC sect 3328 in the UnitedStates District Court for the District of Massachusetts against the United States of America the USDepartment of the Treasury and the US Departmentof the Interior (collectively the Government) First AmCompl para 1 Petitioners contended that 5 USC sect 3328is a Bill of Attainder prohibited by Article I Section 9Clause 3 of the Constitution because it legislativelyimposes punishmentmdashthe lifetime bar on federalemploymentmdashon a specific group of men for theirirreversible failure to register Petitioners also contended that because the Selective Service registration requirement and employment bar appliesto men and not women it unlawfully discriminatesunder the equal protection component of the FifthAmendment Id parapara 1 4 Petitioners sought declaratoryand injunctive relief including reinstatement Id para 4The claims were brought under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 andjurisdiction was premised on 28 USC sectsect 1331 1343and 1346 First Am Compl para 5 Petitioners amendedthe complaint in January 2008 to add a class actionclaim Id para 1

The Government moved to dismiss arguing thatPetitionersrsquo claims failed on the merits Pet App 66aThe Government did not at that time contest the district courtrsquos jurisdiction Petitioners responded by

10

opposing the motion to dismiss as to the equalprotection claim and seeking partial summaryjudgment as to liability on the Bill of Attainder claimAfter a hearing the district court granted Petitionersrsquomotion for partial summary judgment holding that 5USC sect 3328 was a Bill of Attainder and granted theGovernmentrsquos motion to dismiss in part holding thatthe Selective Service scheme did not violate Petitionersrsquo rights to equal protection Id at 66a-67a

Petitioners then filed a motion for class certification and sought a preliminary injunction reinstatingPetitioners The Government filed a motion for reconsideration of the district courtrsquos grant of summaryjudgment on the Bill of Attainder claim contendingboth that the claim failed on the merits and arguing forthe first time that the district court did not have subject matter jurisdiction over the claim because theCSRA precludes district court review of federalemployment decisions Id at 41a-42a The district court held that it did have jurisdiction but granted themotion for reconsideration because it determined on reexamination that 5 USC sect 3328 was not a Bill ofAttainder Id at 51a 63a-64a

C Proceedings Before the First Circuit Petitioners appealed the district courtrsquos decisions

dismissing the equal protection claim and granting themotion for reconsideration on the Bill of Attainder claim to the United States Court of Appeals for theFirst Circuit The panel agreed that Petitionersrsquo claimsshould be dismissed but was divided on the questionwhether the district court had jurisdiction overPetitionersrsquo constitutional claims for equitable reliefId at 15a

11

The majority agreed with the Government that theCSRA provides the exclusive remedy for the termination or constructive termination of federal employees even for facial constitutional challenges likethis one 92 Stat 1111 et seq (codified as amended invarious sections of 5 USC) The CSRA permits non-exempt federal employees such as Petitioners toappeal their terminations to the MSPB if they wereremoved ldquofor such cause as will promote the efficiencyof the servicerdquo 5 USC sect 7513(a) see generally idsectsect 7511-7514 Employees can then appeal the MSPBdecision to the United States Court of Appeals for theFederal Circuit Id sect 7703(b)(1) As the majority notedthis Court has held that though the CSRA does notexplicitly state it is the exclusive remedy itscomprehensiveness generally precludes ordinarydistrict court review of federal employee removals PetApp 6a (citing United States v Fausto 484 US 439 443-55 (1988) and Bush v Lucas 462 US 367 368 (1983))

The majority held that Petitionersrsquo terminationswhich were based solely on 5 USC sect 3328 werenonetheless terminations made for ldquoefficiency of theservicerdquo under 5 USC sect 7513(a) and were thereforesubject to the review procedures outlined by the CSRAPet App 7a-9a Noting the circuit split on thequestion the majority held that the CSRA is theexclusive remedy even when the employee brings onlyconstitutional claims for equitable relief Id at 11a-12a amp 12a n4 Therefore the district court lacked jurisdiction over Petitionersrsquo claims

The majority recognized however that its conclusion might be different if the CSRA provided no

12

remedy for Petitionersrsquo constitutional claims Id at 13a Though the majority did not dispute that theMSPB was powerless to strike down a statute asunconstitutional the majority reasoned that theFederal Circuit had the authority to do so on appealfrom the MSPB Id at 14a Therefore according to themajority the merits of Petitionersrsquo constitutionalclaims could be aired and decided at the Federal Circuit if not the MSPB

Petitioners had argued that their constitutionalclaims could not have been heard in the Federal Circuit because the Federal Circuit has itself repeatedly stated that its jurisdiction on appeal fromthe MSPB is coextensive with the jurisdiction of theMSPB which would not have had jurisdiction overPetitionersrsquo claims The majority disagreed reasoningthat the Federal Circuit had never addressed the question of its jurisdiction under these precisecircumstances and had posited that it would berequired to entertain constitutional claims seekingequitable relief under Webster v Doe 486 US 592 (1988) Pet App 14a (citing Riggin v Office of SenateFair Emprsquot Practices 61 F3d 1563 1570 (Fed Cir 1995) and Brockmann v Deprsquot of the Air Force 27 F3d 544 546-47 (Fed Cir 1994)) Even if the FederalCircuit would have held that it lacked jurisdiction toreview Petitionersrsquo constitutional claims the majorityexplained Petitioners could still have soughtadjudication of their claims on certiorari in this CourtId

Judge Stahl disagreed that the district court lackedjurisdiction but would have rejected Petitionersrsquo claimson the merits Id at 15a Judge Stahl sided with the

13

Third Ninth and DC Circuits and held that because the CSRA does not explicitly state that it prohibitsemployees from bringing constitutional challenges forequitable relief in district court it does not precludesuch actions Id at 23a-24a

Judge Stahl disagreed with the majority thatPetitionersrsquo constitutional claims could have been addressed in the Federal Circuit He explained that theFederal Circuitrsquos jurisdiction has never exceeded thescope of the MSPBrsquos jurisdiction on review of appealsfrom the MSPB even when the appellant assertedconstitutional claims beyond the MSPBrsquos jurisdictionId at 21a-22a (citing Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) (unpublished)) Judge Stahlnoted that in Brockmann v Department of the Air Force relied on by the majority the Federal Circuithypothesized about the possibility of reviewingconstitutional claims but did not actually state that itwould or could do so Id (discussing Brockmann 27 F3d at 546-47) Therefore Judge Stahl reasoned thebetter reading of the Federal Circuitrsquos decisions wasthat it would not have had jurisdiction and the CSRAprocess would not have provided any review ofPetitionersrsquo constitutional claims Id at 22a

14

REASONS FOR GRANTING THE WRIT I This Court Should Resolve the Deep and Enduring

Circuit Split on the Question Whether the CivilService Reform Act Impliedly Precludes FederalDistrict Courts From Granting Equitable Relief onthe Constitutional Claims of Federal Employees As the First Circuit acknowledged this case raises

a question on which there is a deep and longstandingcircuit split whether the CSRA impliedly precludesfederal district courts from exercising jurisdiction overthe constitutional claims of federal employees seekinginjunctive relief Id at 12a n4 24a-25a The Third and DC Circuits have held that the CSRA does not preclude district court jurisdiction over equitableconstitutional claims the First Second and Tenth Circuits have held that it does and four other circuits have recognized the split2

A The Circuit Split 1 Two circuitsmdashthe Third and DC Circuitsmdashhave

held that the CSRA does not preclude federal

2See Am Fedrsquon of Govrsquot Emps Local 1 v Stone 502 F3d 1027 1037-39 (9th Cir 2007) (discussing circuit split) Dotson v Griesa 398 F3d 156 179 (2d Cir 2005) cert denied 547 US 1191 (2006)(ldquoThe circuits are divided as to whether equitable relief such asreinstatement is available to federal employees notwithstandingtheir general agreement that the CSRA precludes Bivens claims for damagesrdquo) Hardison v Cohen 375 F3d 1262 1266 (11th Cir2004) (ldquoSeveral of our sister circuits have differed on whetherequitable relief is precluded by the presence of a statutoryremedial schemerdquo) Paige v Cisneros 91 F3d 40 44 (7th Cir 1996) (discussing circuit split) Mitchum v Hurt 73 F3d 30 34 (3d Cir 1995) (discussing circuit split) Bryant v Cheney 924 F2d 525 525 (4th Cir 1991) (discussing ldquotension among the circuitsrdquo)

15

employees from bringing claims for equitable relief forconstitutional injuries in federal district court Athirdmdashthe Ninth Circuitmdashhas expressly agreed withthe Third and DC Circuits and has held that at least in some circumstances federal employees may bringconstitutional claims for equitable relief in district court

In Hubbard v EPA 809 F2d 1 (DC Cir 1986) adetective with the DC Police Department alleged thathe had been denied a position with the EnvironmentalProtection Agency because of statements he made tothe press about an investigation into illegal drug useby members of Congress Under the CSRA Hubbardcould appeal the decisionmdashincluding his constitutionalclaims under the First Amendmentmdashto OPM and file a petition with the Office of Special Counsel Hubbardbrought a Bivens action in district court for damages aswell as a claim for injunctive relief Id at 1 3 8

Relying on this Courtrsquos decision in Bush v Lucas the DC Circuit held that Hubbardrsquos Bivens claim for damages was precluded by the CSRArsquos comprehensiveremedial scheme In Bush this Court rejected a federalemployeersquos Bivens claim for damages because theldquocomprehensive procedural and substantive provisionsrdquoof the CSRA are ldquospecial factors counselling hesitationin the absence of affirmative action by CongressrdquoBush 462 US at 377 (quoting Carlson v Green 446 US 14 18-19 (1980)) However the DC Circuit ruledthat the CSRA did not preclude Hubbardrsquos claim forequitable relief because to eliminate courtsrsquo jurisdictionover equitable relief for constitutional violationsCongress must do so explicitly and the CSRA did notcontain any provision explicitly eliminating federal

16

court jurisdiction The DC Circuit explained thedifference

The courtsrsquo power to impose equitable remediesagainst agencies is broader than its power toimpose legal remedies against individualsBivens actions are a recent judicial creation and as Carlson v Green made clear comparativelyeasy for Congress to preempt The courtsrsquo power to enjoin unconstitutional acts by the government however is inherent in the Constitution itself see Marbury v Madison 5 US (1 Cranch) 137 LEd 60 (1803) AlthoughCongress may limit this power see Ex Parte McCardle 74 US (7 Wall) 506 19 LEd 264(1869) CSRA did not explicitly limit ourjurisdiction to enjoin unconstitutional personnelactions by federal agencies

Hubbard 809 F2d at 11 n15 The Bivens portion of the Hubbard decision was

reheard and affirmed en banc in Spagnola v Mathis 859 F2d 223 (DC Cir 1988) Although the en banccourt did not rehear the question whether the CSRAalso precludes constitutional claims for equitable reliefit made clear that its decision with regard to theBivens claim left the equitable claim intact ldquo[T]imeand again this court has affirmed the right of civil servants to seek equitable relief against their supervisors and the agency itself in vindication oftheir constitutional rightsrdquo Id at 229-30

In Mitchum v Hurt 73 F3d at 36 the Third Circuit joined the DC Circuit in holding that theCSRA did not preclude district court jurisdiction over

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

5

whether the failure to register was knowing andwillful 5 CFR sect 300707

The Selective Service System has no record ofregistration for any of the Petitioners Three ofthemmdashElgin Tucker and Colbymdashdid not becomeaware of the registration requirement until after their26th birthdays when it was too late to register ThefourthmdashLawsonmdashknew about the requirement andbelieves that he registered but the Selective ServiceSystem does not have any record of his registrationElgin Lawson and Colby sought determinations thattheir failure to register was not knowing and willfulbut OPM denied their claims

Petitioners are former employees of federal agencies Elgin Lawson and Colby were terminatedsolely under 5 USC sect 3328 because they failed toregister Tucker resigned from one agency when hisfailure to register became apparent and his offer ofemployment from a second agency was withdrawnsolely because he failed to register

1 Michael B Elgin was first hired by the InternalRevenue Service (IRS) an agency of the TreasuryDepartment in 1991 as a low-level data transcriberPet App 95a Over the next sixteen years Elginconsistently received glowing evaluations and waspromoted to positions with increasing responsibilityFirst Am Compl para 31 As part of a routine backgroundinvestigation when he was offered a promotion in 2002the IRS learned that Elgin had not registered with theSelective Service and passed that information on toOPM Id parapara 32-34 Nevertheless Elgin was promotedId para 33

6

In 2003 OPM determined that Elgin was ineligiblefor federal employment under 5 USC sect 3328 becausehe had failed to register with the Selective ServiceElgin sought a waiver that would permit his employment arguing that his failure to register hadnot been knowing and willful because he had not beenaware of the registration requirement at age 18 hewas struggling to complete high school and support hisson while being virtually homeless Id parapara 29-30 OPMdenied his request for a waiver in 2006 BothMassachusetts Senators and the IRS asked OPM to reconsider explaining that Elgin was a valued IRSemployee whose termination would negatively affectthe agency and that Elginrsquos failure to register wasinadvertent Id para 34 OPM denied the Senatorsrsquo and IRSrsquos request Id para 35 Elgin was terminated on July 27 2007 Id para 36

2 Aaron Lawson has been a wildfire fighter since1997 first with the California Department of Forestryand later with the US Forest Service Id para 40 He isa specialist in directing helicopter crews fighting forestfires Id para 41 The Government has spent tens ofthousands of dollars training him to do this dangerouswork Id In 2003 the Bureau of Land Management adivision of the Interior Department in conjunctionwith the US Forest Service hired him as a wildfire fighter helicopter captain Id para 40 After he was hiredLawson learned that the Selective Service has no record of his registration Id Lawson believes that he completed the registration forms at his local post officearound the time of his 18th birthday Id para 39 TheBureau of Land Management and US Forest Servicerequested a waiver from OPM that would make

7

Lawson eligible for employment Id para 42 OPM deniedthe waiver Lawson was terminated Id

3 In 2007 Henry Tucker was a FinancialInstitution Specialist at the Federal Deposit InsuranceCorporation where he had been employed for 17 yearsId para 44 He had never been aware of the requirementto register with the Selective Service Tuckerrsquos motherleft him when he was 16 and he moved frequently as a teenager Id para 43 In December 2007 the FederalDeposit Insurance Corporation learned that Tuckerhad not registered with the Selective Service andreferred the matter to OPM Id para 45

Fearing that he would be fired Tucker resigned andapplied for a position with the National Institutes ofHealth which offered Tucker a job as a BudgetAnalyst Id para 46 It withdrew the offer however afterlearning that Tucker had not registered with theSelective Service Id

4 Christon Colby began working at the IRS in 2001as a temporary employee and was hired permanentlyin 2002 Id parapara 49-52 Colby received consistentlyexcellent performance reviews and was promoted topositions with increasing responsibility Id para 53 In2003 the IRS informed Colby that it had become awareof his failure to register with the Selective Service Id para 54 Colby sought a waiver from OPM on the basisthat his failure to register was not knowing and willfulColby explained that he had moved out of his parentsrsquohome at age 18 and was unaware of the registrationrequirement until he was too old to register Id parapara 47-48 55

8

In 2006 OPM declined to issue a waiver makinghim eligible for employment Id para 57 Colbyrsquossupervisor at the IRS appealed the determinationwithin OPM explaining that Colby was ldquoan extremelyvaluable and integralrdquo employee and noting that theIRS had invested $25000 in training Colby Id para 58OPM affirmed its decision not to issue Colby a waiverand Colby was terminated on August 3 2007 Id parapara 59-60

B Proceedings Before the Merit SystemsProtection Board and the District Court

The Civil Service Reform Act (CSRA) 92 Stat 1111 et seq provides that non-exempt federal employees(such as Petitioners had been) may challenge theirterminations before the Merit Systems ProtectionBoard (MSPB) under certain conditions 5 USCsectsect 7701(a) 7512(1) 7513(d) Shortly after beingterminated under 5 USC sect 3328 Petitioner Elginappealed the decision to the MSPB arguing that 5USC sect 3328 is a Bill of Attainder and that he wassubject to unconstitutional sex-based discriminationbecause the Selective Service registration requirementonly applies to men On November 16 2007 at theTreasury Departmentrsquos urging the MSPB dismissedElginrsquos appeal for lack of jurisdiction Pet App 100a-01a The MSPB explained that it lacked jurisdictionover appeals where employees were terminated underabsolute statutory prohibitions such as 5 USCsect 3328 Id The MSPB also held that it lacked authorityto rule on the constitutionality of a statute and notedthat to the extent it could review any constitutional ordiscrimination claims it did not have jurisdiction over

9

those claims without an explicit grant of jurisdictionwhich was absent here Id at 101a-02a

After Elginrsquos MSPB appeal was dismissed onDecember 28 2007 Elgin joined by Lawson Tuckerand Colby brought this action challenging theconstitutionality of 5 USC sect 3328 in the UnitedStates District Court for the District of Massachusetts against the United States of America the USDepartment of the Treasury and the US Departmentof the Interior (collectively the Government) First AmCompl para 1 Petitioners contended that 5 USC sect 3328is a Bill of Attainder prohibited by Article I Section 9Clause 3 of the Constitution because it legislativelyimposes punishmentmdashthe lifetime bar on federalemploymentmdashon a specific group of men for theirirreversible failure to register Petitioners also contended that because the Selective Service registration requirement and employment bar appliesto men and not women it unlawfully discriminatesunder the equal protection component of the FifthAmendment Id parapara 1 4 Petitioners sought declaratoryand injunctive relief including reinstatement Id para 4The claims were brought under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 andjurisdiction was premised on 28 USC sectsect 1331 1343and 1346 First Am Compl para 5 Petitioners amendedthe complaint in January 2008 to add a class actionclaim Id para 1

The Government moved to dismiss arguing thatPetitionersrsquo claims failed on the merits Pet App 66aThe Government did not at that time contest the district courtrsquos jurisdiction Petitioners responded by

10

opposing the motion to dismiss as to the equalprotection claim and seeking partial summaryjudgment as to liability on the Bill of Attainder claimAfter a hearing the district court granted Petitionersrsquomotion for partial summary judgment holding that 5USC sect 3328 was a Bill of Attainder and granted theGovernmentrsquos motion to dismiss in part holding thatthe Selective Service scheme did not violate Petitionersrsquo rights to equal protection Id at 66a-67a

Petitioners then filed a motion for class certification and sought a preliminary injunction reinstatingPetitioners The Government filed a motion for reconsideration of the district courtrsquos grant of summaryjudgment on the Bill of Attainder claim contendingboth that the claim failed on the merits and arguing forthe first time that the district court did not have subject matter jurisdiction over the claim because theCSRA precludes district court review of federalemployment decisions Id at 41a-42a The district court held that it did have jurisdiction but granted themotion for reconsideration because it determined on reexamination that 5 USC sect 3328 was not a Bill ofAttainder Id at 51a 63a-64a

C Proceedings Before the First Circuit Petitioners appealed the district courtrsquos decisions

dismissing the equal protection claim and granting themotion for reconsideration on the Bill of Attainder claim to the United States Court of Appeals for theFirst Circuit The panel agreed that Petitionersrsquo claimsshould be dismissed but was divided on the questionwhether the district court had jurisdiction overPetitionersrsquo constitutional claims for equitable reliefId at 15a

11

The majority agreed with the Government that theCSRA provides the exclusive remedy for the termination or constructive termination of federal employees even for facial constitutional challenges likethis one 92 Stat 1111 et seq (codified as amended invarious sections of 5 USC) The CSRA permits non-exempt federal employees such as Petitioners toappeal their terminations to the MSPB if they wereremoved ldquofor such cause as will promote the efficiencyof the servicerdquo 5 USC sect 7513(a) see generally idsectsect 7511-7514 Employees can then appeal the MSPBdecision to the United States Court of Appeals for theFederal Circuit Id sect 7703(b)(1) As the majority notedthis Court has held that though the CSRA does notexplicitly state it is the exclusive remedy itscomprehensiveness generally precludes ordinarydistrict court review of federal employee removals PetApp 6a (citing United States v Fausto 484 US 439 443-55 (1988) and Bush v Lucas 462 US 367 368 (1983))

The majority held that Petitionersrsquo terminationswhich were based solely on 5 USC sect 3328 werenonetheless terminations made for ldquoefficiency of theservicerdquo under 5 USC sect 7513(a) and were thereforesubject to the review procedures outlined by the CSRAPet App 7a-9a Noting the circuit split on thequestion the majority held that the CSRA is theexclusive remedy even when the employee brings onlyconstitutional claims for equitable relief Id at 11a-12a amp 12a n4 Therefore the district court lacked jurisdiction over Petitionersrsquo claims

The majority recognized however that its conclusion might be different if the CSRA provided no

12

remedy for Petitionersrsquo constitutional claims Id at 13a Though the majority did not dispute that theMSPB was powerless to strike down a statute asunconstitutional the majority reasoned that theFederal Circuit had the authority to do so on appealfrom the MSPB Id at 14a Therefore according to themajority the merits of Petitionersrsquo constitutionalclaims could be aired and decided at the Federal Circuit if not the MSPB

Petitioners had argued that their constitutionalclaims could not have been heard in the Federal Circuit because the Federal Circuit has itself repeatedly stated that its jurisdiction on appeal fromthe MSPB is coextensive with the jurisdiction of theMSPB which would not have had jurisdiction overPetitionersrsquo claims The majority disagreed reasoningthat the Federal Circuit had never addressed the question of its jurisdiction under these precisecircumstances and had posited that it would berequired to entertain constitutional claims seekingequitable relief under Webster v Doe 486 US 592 (1988) Pet App 14a (citing Riggin v Office of SenateFair Emprsquot Practices 61 F3d 1563 1570 (Fed Cir 1995) and Brockmann v Deprsquot of the Air Force 27 F3d 544 546-47 (Fed Cir 1994)) Even if the FederalCircuit would have held that it lacked jurisdiction toreview Petitionersrsquo constitutional claims the majorityexplained Petitioners could still have soughtadjudication of their claims on certiorari in this CourtId

Judge Stahl disagreed that the district court lackedjurisdiction but would have rejected Petitionersrsquo claimson the merits Id at 15a Judge Stahl sided with the

13

Third Ninth and DC Circuits and held that because the CSRA does not explicitly state that it prohibitsemployees from bringing constitutional challenges forequitable relief in district court it does not precludesuch actions Id at 23a-24a

Judge Stahl disagreed with the majority thatPetitionersrsquo constitutional claims could have been addressed in the Federal Circuit He explained that theFederal Circuitrsquos jurisdiction has never exceeded thescope of the MSPBrsquos jurisdiction on review of appealsfrom the MSPB even when the appellant assertedconstitutional claims beyond the MSPBrsquos jurisdictionId at 21a-22a (citing Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) (unpublished)) Judge Stahlnoted that in Brockmann v Department of the Air Force relied on by the majority the Federal Circuithypothesized about the possibility of reviewingconstitutional claims but did not actually state that itwould or could do so Id (discussing Brockmann 27 F3d at 546-47) Therefore Judge Stahl reasoned thebetter reading of the Federal Circuitrsquos decisions wasthat it would not have had jurisdiction and the CSRAprocess would not have provided any review ofPetitionersrsquo constitutional claims Id at 22a

14

REASONS FOR GRANTING THE WRIT I This Court Should Resolve the Deep and Enduring

Circuit Split on the Question Whether the CivilService Reform Act Impliedly Precludes FederalDistrict Courts From Granting Equitable Relief onthe Constitutional Claims of Federal Employees As the First Circuit acknowledged this case raises

a question on which there is a deep and longstandingcircuit split whether the CSRA impliedly precludesfederal district courts from exercising jurisdiction overthe constitutional claims of federal employees seekinginjunctive relief Id at 12a n4 24a-25a The Third and DC Circuits have held that the CSRA does not preclude district court jurisdiction over equitableconstitutional claims the First Second and Tenth Circuits have held that it does and four other circuits have recognized the split2

A The Circuit Split 1 Two circuitsmdashthe Third and DC Circuitsmdashhave

held that the CSRA does not preclude federal

2See Am Fedrsquon of Govrsquot Emps Local 1 v Stone 502 F3d 1027 1037-39 (9th Cir 2007) (discussing circuit split) Dotson v Griesa 398 F3d 156 179 (2d Cir 2005) cert denied 547 US 1191 (2006)(ldquoThe circuits are divided as to whether equitable relief such asreinstatement is available to federal employees notwithstandingtheir general agreement that the CSRA precludes Bivens claims for damagesrdquo) Hardison v Cohen 375 F3d 1262 1266 (11th Cir2004) (ldquoSeveral of our sister circuits have differed on whetherequitable relief is precluded by the presence of a statutoryremedial schemerdquo) Paige v Cisneros 91 F3d 40 44 (7th Cir 1996) (discussing circuit split) Mitchum v Hurt 73 F3d 30 34 (3d Cir 1995) (discussing circuit split) Bryant v Cheney 924 F2d 525 525 (4th Cir 1991) (discussing ldquotension among the circuitsrdquo)

15

employees from bringing claims for equitable relief forconstitutional injuries in federal district court Athirdmdashthe Ninth Circuitmdashhas expressly agreed withthe Third and DC Circuits and has held that at least in some circumstances federal employees may bringconstitutional claims for equitable relief in district court

In Hubbard v EPA 809 F2d 1 (DC Cir 1986) adetective with the DC Police Department alleged thathe had been denied a position with the EnvironmentalProtection Agency because of statements he made tothe press about an investigation into illegal drug useby members of Congress Under the CSRA Hubbardcould appeal the decisionmdashincluding his constitutionalclaims under the First Amendmentmdashto OPM and file a petition with the Office of Special Counsel Hubbardbrought a Bivens action in district court for damages aswell as a claim for injunctive relief Id at 1 3 8

Relying on this Courtrsquos decision in Bush v Lucas the DC Circuit held that Hubbardrsquos Bivens claim for damages was precluded by the CSRArsquos comprehensiveremedial scheme In Bush this Court rejected a federalemployeersquos Bivens claim for damages because theldquocomprehensive procedural and substantive provisionsrdquoof the CSRA are ldquospecial factors counselling hesitationin the absence of affirmative action by CongressrdquoBush 462 US at 377 (quoting Carlson v Green 446 US 14 18-19 (1980)) However the DC Circuit ruledthat the CSRA did not preclude Hubbardrsquos claim forequitable relief because to eliminate courtsrsquo jurisdictionover equitable relief for constitutional violationsCongress must do so explicitly and the CSRA did notcontain any provision explicitly eliminating federal

16

court jurisdiction The DC Circuit explained thedifference

The courtsrsquo power to impose equitable remediesagainst agencies is broader than its power toimpose legal remedies against individualsBivens actions are a recent judicial creation and as Carlson v Green made clear comparativelyeasy for Congress to preempt The courtsrsquo power to enjoin unconstitutional acts by the government however is inherent in the Constitution itself see Marbury v Madison 5 US (1 Cranch) 137 LEd 60 (1803) AlthoughCongress may limit this power see Ex Parte McCardle 74 US (7 Wall) 506 19 LEd 264(1869) CSRA did not explicitly limit ourjurisdiction to enjoin unconstitutional personnelactions by federal agencies

Hubbard 809 F2d at 11 n15 The Bivens portion of the Hubbard decision was

reheard and affirmed en banc in Spagnola v Mathis 859 F2d 223 (DC Cir 1988) Although the en banccourt did not rehear the question whether the CSRAalso precludes constitutional claims for equitable reliefit made clear that its decision with regard to theBivens claim left the equitable claim intact ldquo[T]imeand again this court has affirmed the right of civil servants to seek equitable relief against their supervisors and the agency itself in vindication oftheir constitutional rightsrdquo Id at 229-30

In Mitchum v Hurt 73 F3d at 36 the Third Circuit joined the DC Circuit in holding that theCSRA did not preclude district court jurisdiction over

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

6

In 2003 OPM determined that Elgin was ineligiblefor federal employment under 5 USC sect 3328 becausehe had failed to register with the Selective ServiceElgin sought a waiver that would permit his employment arguing that his failure to register hadnot been knowing and willful because he had not beenaware of the registration requirement at age 18 hewas struggling to complete high school and support hisson while being virtually homeless Id parapara 29-30 OPMdenied his request for a waiver in 2006 BothMassachusetts Senators and the IRS asked OPM to reconsider explaining that Elgin was a valued IRSemployee whose termination would negatively affectthe agency and that Elginrsquos failure to register wasinadvertent Id para 34 OPM denied the Senatorsrsquo and IRSrsquos request Id para 35 Elgin was terminated on July 27 2007 Id para 36

2 Aaron Lawson has been a wildfire fighter since1997 first with the California Department of Forestryand later with the US Forest Service Id para 40 He isa specialist in directing helicopter crews fighting forestfires Id para 41 The Government has spent tens ofthousands of dollars training him to do this dangerouswork Id In 2003 the Bureau of Land Management adivision of the Interior Department in conjunctionwith the US Forest Service hired him as a wildfire fighter helicopter captain Id para 40 After he was hiredLawson learned that the Selective Service has no record of his registration Id Lawson believes that he completed the registration forms at his local post officearound the time of his 18th birthday Id para 39 TheBureau of Land Management and US Forest Servicerequested a waiver from OPM that would make

7

Lawson eligible for employment Id para 42 OPM deniedthe waiver Lawson was terminated Id

3 In 2007 Henry Tucker was a FinancialInstitution Specialist at the Federal Deposit InsuranceCorporation where he had been employed for 17 yearsId para 44 He had never been aware of the requirementto register with the Selective Service Tuckerrsquos motherleft him when he was 16 and he moved frequently as a teenager Id para 43 In December 2007 the FederalDeposit Insurance Corporation learned that Tuckerhad not registered with the Selective Service andreferred the matter to OPM Id para 45

Fearing that he would be fired Tucker resigned andapplied for a position with the National Institutes ofHealth which offered Tucker a job as a BudgetAnalyst Id para 46 It withdrew the offer however afterlearning that Tucker had not registered with theSelective Service Id

4 Christon Colby began working at the IRS in 2001as a temporary employee and was hired permanentlyin 2002 Id parapara 49-52 Colby received consistentlyexcellent performance reviews and was promoted topositions with increasing responsibility Id para 53 In2003 the IRS informed Colby that it had become awareof his failure to register with the Selective Service Id para 54 Colby sought a waiver from OPM on the basisthat his failure to register was not knowing and willfulColby explained that he had moved out of his parentsrsquohome at age 18 and was unaware of the registrationrequirement until he was too old to register Id parapara 47-48 55

8

In 2006 OPM declined to issue a waiver makinghim eligible for employment Id para 57 Colbyrsquossupervisor at the IRS appealed the determinationwithin OPM explaining that Colby was ldquoan extremelyvaluable and integralrdquo employee and noting that theIRS had invested $25000 in training Colby Id para 58OPM affirmed its decision not to issue Colby a waiverand Colby was terminated on August 3 2007 Id parapara 59-60

B Proceedings Before the Merit SystemsProtection Board and the District Court

The Civil Service Reform Act (CSRA) 92 Stat 1111 et seq provides that non-exempt federal employees(such as Petitioners had been) may challenge theirterminations before the Merit Systems ProtectionBoard (MSPB) under certain conditions 5 USCsectsect 7701(a) 7512(1) 7513(d) Shortly after beingterminated under 5 USC sect 3328 Petitioner Elginappealed the decision to the MSPB arguing that 5USC sect 3328 is a Bill of Attainder and that he wassubject to unconstitutional sex-based discriminationbecause the Selective Service registration requirementonly applies to men On November 16 2007 at theTreasury Departmentrsquos urging the MSPB dismissedElginrsquos appeal for lack of jurisdiction Pet App 100a-01a The MSPB explained that it lacked jurisdictionover appeals where employees were terminated underabsolute statutory prohibitions such as 5 USCsect 3328 Id The MSPB also held that it lacked authorityto rule on the constitutionality of a statute and notedthat to the extent it could review any constitutional ordiscrimination claims it did not have jurisdiction over

9

those claims without an explicit grant of jurisdictionwhich was absent here Id at 101a-02a

After Elginrsquos MSPB appeal was dismissed onDecember 28 2007 Elgin joined by Lawson Tuckerand Colby brought this action challenging theconstitutionality of 5 USC sect 3328 in the UnitedStates District Court for the District of Massachusetts against the United States of America the USDepartment of the Treasury and the US Departmentof the Interior (collectively the Government) First AmCompl para 1 Petitioners contended that 5 USC sect 3328is a Bill of Attainder prohibited by Article I Section 9Clause 3 of the Constitution because it legislativelyimposes punishmentmdashthe lifetime bar on federalemploymentmdashon a specific group of men for theirirreversible failure to register Petitioners also contended that because the Selective Service registration requirement and employment bar appliesto men and not women it unlawfully discriminatesunder the equal protection component of the FifthAmendment Id parapara 1 4 Petitioners sought declaratoryand injunctive relief including reinstatement Id para 4The claims were brought under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 andjurisdiction was premised on 28 USC sectsect 1331 1343and 1346 First Am Compl para 5 Petitioners amendedthe complaint in January 2008 to add a class actionclaim Id para 1

The Government moved to dismiss arguing thatPetitionersrsquo claims failed on the merits Pet App 66aThe Government did not at that time contest the district courtrsquos jurisdiction Petitioners responded by

10

opposing the motion to dismiss as to the equalprotection claim and seeking partial summaryjudgment as to liability on the Bill of Attainder claimAfter a hearing the district court granted Petitionersrsquomotion for partial summary judgment holding that 5USC sect 3328 was a Bill of Attainder and granted theGovernmentrsquos motion to dismiss in part holding thatthe Selective Service scheme did not violate Petitionersrsquo rights to equal protection Id at 66a-67a

Petitioners then filed a motion for class certification and sought a preliminary injunction reinstatingPetitioners The Government filed a motion for reconsideration of the district courtrsquos grant of summaryjudgment on the Bill of Attainder claim contendingboth that the claim failed on the merits and arguing forthe first time that the district court did not have subject matter jurisdiction over the claim because theCSRA precludes district court review of federalemployment decisions Id at 41a-42a The district court held that it did have jurisdiction but granted themotion for reconsideration because it determined on reexamination that 5 USC sect 3328 was not a Bill ofAttainder Id at 51a 63a-64a

C Proceedings Before the First Circuit Petitioners appealed the district courtrsquos decisions

dismissing the equal protection claim and granting themotion for reconsideration on the Bill of Attainder claim to the United States Court of Appeals for theFirst Circuit The panel agreed that Petitionersrsquo claimsshould be dismissed but was divided on the questionwhether the district court had jurisdiction overPetitionersrsquo constitutional claims for equitable reliefId at 15a

11

The majority agreed with the Government that theCSRA provides the exclusive remedy for the termination or constructive termination of federal employees even for facial constitutional challenges likethis one 92 Stat 1111 et seq (codified as amended invarious sections of 5 USC) The CSRA permits non-exempt federal employees such as Petitioners toappeal their terminations to the MSPB if they wereremoved ldquofor such cause as will promote the efficiencyof the servicerdquo 5 USC sect 7513(a) see generally idsectsect 7511-7514 Employees can then appeal the MSPBdecision to the United States Court of Appeals for theFederal Circuit Id sect 7703(b)(1) As the majority notedthis Court has held that though the CSRA does notexplicitly state it is the exclusive remedy itscomprehensiveness generally precludes ordinarydistrict court review of federal employee removals PetApp 6a (citing United States v Fausto 484 US 439 443-55 (1988) and Bush v Lucas 462 US 367 368 (1983))

The majority held that Petitionersrsquo terminationswhich were based solely on 5 USC sect 3328 werenonetheless terminations made for ldquoefficiency of theservicerdquo under 5 USC sect 7513(a) and were thereforesubject to the review procedures outlined by the CSRAPet App 7a-9a Noting the circuit split on thequestion the majority held that the CSRA is theexclusive remedy even when the employee brings onlyconstitutional claims for equitable relief Id at 11a-12a amp 12a n4 Therefore the district court lacked jurisdiction over Petitionersrsquo claims

The majority recognized however that its conclusion might be different if the CSRA provided no

12

remedy for Petitionersrsquo constitutional claims Id at 13a Though the majority did not dispute that theMSPB was powerless to strike down a statute asunconstitutional the majority reasoned that theFederal Circuit had the authority to do so on appealfrom the MSPB Id at 14a Therefore according to themajority the merits of Petitionersrsquo constitutionalclaims could be aired and decided at the Federal Circuit if not the MSPB

Petitioners had argued that their constitutionalclaims could not have been heard in the Federal Circuit because the Federal Circuit has itself repeatedly stated that its jurisdiction on appeal fromthe MSPB is coextensive with the jurisdiction of theMSPB which would not have had jurisdiction overPetitionersrsquo claims The majority disagreed reasoningthat the Federal Circuit had never addressed the question of its jurisdiction under these precisecircumstances and had posited that it would berequired to entertain constitutional claims seekingequitable relief under Webster v Doe 486 US 592 (1988) Pet App 14a (citing Riggin v Office of SenateFair Emprsquot Practices 61 F3d 1563 1570 (Fed Cir 1995) and Brockmann v Deprsquot of the Air Force 27 F3d 544 546-47 (Fed Cir 1994)) Even if the FederalCircuit would have held that it lacked jurisdiction toreview Petitionersrsquo constitutional claims the majorityexplained Petitioners could still have soughtadjudication of their claims on certiorari in this CourtId

Judge Stahl disagreed that the district court lackedjurisdiction but would have rejected Petitionersrsquo claimson the merits Id at 15a Judge Stahl sided with the

13

Third Ninth and DC Circuits and held that because the CSRA does not explicitly state that it prohibitsemployees from bringing constitutional challenges forequitable relief in district court it does not precludesuch actions Id at 23a-24a

Judge Stahl disagreed with the majority thatPetitionersrsquo constitutional claims could have been addressed in the Federal Circuit He explained that theFederal Circuitrsquos jurisdiction has never exceeded thescope of the MSPBrsquos jurisdiction on review of appealsfrom the MSPB even when the appellant assertedconstitutional claims beyond the MSPBrsquos jurisdictionId at 21a-22a (citing Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) (unpublished)) Judge Stahlnoted that in Brockmann v Department of the Air Force relied on by the majority the Federal Circuithypothesized about the possibility of reviewingconstitutional claims but did not actually state that itwould or could do so Id (discussing Brockmann 27 F3d at 546-47) Therefore Judge Stahl reasoned thebetter reading of the Federal Circuitrsquos decisions wasthat it would not have had jurisdiction and the CSRAprocess would not have provided any review ofPetitionersrsquo constitutional claims Id at 22a

14

REASONS FOR GRANTING THE WRIT I This Court Should Resolve the Deep and Enduring

Circuit Split on the Question Whether the CivilService Reform Act Impliedly Precludes FederalDistrict Courts From Granting Equitable Relief onthe Constitutional Claims of Federal Employees As the First Circuit acknowledged this case raises

a question on which there is a deep and longstandingcircuit split whether the CSRA impliedly precludesfederal district courts from exercising jurisdiction overthe constitutional claims of federal employees seekinginjunctive relief Id at 12a n4 24a-25a The Third and DC Circuits have held that the CSRA does not preclude district court jurisdiction over equitableconstitutional claims the First Second and Tenth Circuits have held that it does and four other circuits have recognized the split2

A The Circuit Split 1 Two circuitsmdashthe Third and DC Circuitsmdashhave

held that the CSRA does not preclude federal

2See Am Fedrsquon of Govrsquot Emps Local 1 v Stone 502 F3d 1027 1037-39 (9th Cir 2007) (discussing circuit split) Dotson v Griesa 398 F3d 156 179 (2d Cir 2005) cert denied 547 US 1191 (2006)(ldquoThe circuits are divided as to whether equitable relief such asreinstatement is available to federal employees notwithstandingtheir general agreement that the CSRA precludes Bivens claims for damagesrdquo) Hardison v Cohen 375 F3d 1262 1266 (11th Cir2004) (ldquoSeveral of our sister circuits have differed on whetherequitable relief is precluded by the presence of a statutoryremedial schemerdquo) Paige v Cisneros 91 F3d 40 44 (7th Cir 1996) (discussing circuit split) Mitchum v Hurt 73 F3d 30 34 (3d Cir 1995) (discussing circuit split) Bryant v Cheney 924 F2d 525 525 (4th Cir 1991) (discussing ldquotension among the circuitsrdquo)

15

employees from bringing claims for equitable relief forconstitutional injuries in federal district court Athirdmdashthe Ninth Circuitmdashhas expressly agreed withthe Third and DC Circuits and has held that at least in some circumstances federal employees may bringconstitutional claims for equitable relief in district court

In Hubbard v EPA 809 F2d 1 (DC Cir 1986) adetective with the DC Police Department alleged thathe had been denied a position with the EnvironmentalProtection Agency because of statements he made tothe press about an investigation into illegal drug useby members of Congress Under the CSRA Hubbardcould appeal the decisionmdashincluding his constitutionalclaims under the First Amendmentmdashto OPM and file a petition with the Office of Special Counsel Hubbardbrought a Bivens action in district court for damages aswell as a claim for injunctive relief Id at 1 3 8

Relying on this Courtrsquos decision in Bush v Lucas the DC Circuit held that Hubbardrsquos Bivens claim for damages was precluded by the CSRArsquos comprehensiveremedial scheme In Bush this Court rejected a federalemployeersquos Bivens claim for damages because theldquocomprehensive procedural and substantive provisionsrdquoof the CSRA are ldquospecial factors counselling hesitationin the absence of affirmative action by CongressrdquoBush 462 US at 377 (quoting Carlson v Green 446 US 14 18-19 (1980)) However the DC Circuit ruledthat the CSRA did not preclude Hubbardrsquos claim forequitable relief because to eliminate courtsrsquo jurisdictionover equitable relief for constitutional violationsCongress must do so explicitly and the CSRA did notcontain any provision explicitly eliminating federal

16

court jurisdiction The DC Circuit explained thedifference

The courtsrsquo power to impose equitable remediesagainst agencies is broader than its power toimpose legal remedies against individualsBivens actions are a recent judicial creation and as Carlson v Green made clear comparativelyeasy for Congress to preempt The courtsrsquo power to enjoin unconstitutional acts by the government however is inherent in the Constitution itself see Marbury v Madison 5 US (1 Cranch) 137 LEd 60 (1803) AlthoughCongress may limit this power see Ex Parte McCardle 74 US (7 Wall) 506 19 LEd 264(1869) CSRA did not explicitly limit ourjurisdiction to enjoin unconstitutional personnelactions by federal agencies

Hubbard 809 F2d at 11 n15 The Bivens portion of the Hubbard decision was

reheard and affirmed en banc in Spagnola v Mathis 859 F2d 223 (DC Cir 1988) Although the en banccourt did not rehear the question whether the CSRAalso precludes constitutional claims for equitable reliefit made clear that its decision with regard to theBivens claim left the equitable claim intact ldquo[T]imeand again this court has affirmed the right of civil servants to seek equitable relief against their supervisors and the agency itself in vindication oftheir constitutional rightsrdquo Id at 229-30

In Mitchum v Hurt 73 F3d at 36 the Third Circuit joined the DC Circuit in holding that theCSRA did not preclude district court jurisdiction over

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

7

Lawson eligible for employment Id para 42 OPM deniedthe waiver Lawson was terminated Id

3 In 2007 Henry Tucker was a FinancialInstitution Specialist at the Federal Deposit InsuranceCorporation where he had been employed for 17 yearsId para 44 He had never been aware of the requirementto register with the Selective Service Tuckerrsquos motherleft him when he was 16 and he moved frequently as a teenager Id para 43 In December 2007 the FederalDeposit Insurance Corporation learned that Tuckerhad not registered with the Selective Service andreferred the matter to OPM Id para 45

Fearing that he would be fired Tucker resigned andapplied for a position with the National Institutes ofHealth which offered Tucker a job as a BudgetAnalyst Id para 46 It withdrew the offer however afterlearning that Tucker had not registered with theSelective Service Id

4 Christon Colby began working at the IRS in 2001as a temporary employee and was hired permanentlyin 2002 Id parapara 49-52 Colby received consistentlyexcellent performance reviews and was promoted topositions with increasing responsibility Id para 53 In2003 the IRS informed Colby that it had become awareof his failure to register with the Selective Service Id para 54 Colby sought a waiver from OPM on the basisthat his failure to register was not knowing and willfulColby explained that he had moved out of his parentsrsquohome at age 18 and was unaware of the registrationrequirement until he was too old to register Id parapara 47-48 55

8

In 2006 OPM declined to issue a waiver makinghim eligible for employment Id para 57 Colbyrsquossupervisor at the IRS appealed the determinationwithin OPM explaining that Colby was ldquoan extremelyvaluable and integralrdquo employee and noting that theIRS had invested $25000 in training Colby Id para 58OPM affirmed its decision not to issue Colby a waiverand Colby was terminated on August 3 2007 Id parapara 59-60

B Proceedings Before the Merit SystemsProtection Board and the District Court

The Civil Service Reform Act (CSRA) 92 Stat 1111 et seq provides that non-exempt federal employees(such as Petitioners had been) may challenge theirterminations before the Merit Systems ProtectionBoard (MSPB) under certain conditions 5 USCsectsect 7701(a) 7512(1) 7513(d) Shortly after beingterminated under 5 USC sect 3328 Petitioner Elginappealed the decision to the MSPB arguing that 5USC sect 3328 is a Bill of Attainder and that he wassubject to unconstitutional sex-based discriminationbecause the Selective Service registration requirementonly applies to men On November 16 2007 at theTreasury Departmentrsquos urging the MSPB dismissedElginrsquos appeal for lack of jurisdiction Pet App 100a-01a The MSPB explained that it lacked jurisdictionover appeals where employees were terminated underabsolute statutory prohibitions such as 5 USCsect 3328 Id The MSPB also held that it lacked authorityto rule on the constitutionality of a statute and notedthat to the extent it could review any constitutional ordiscrimination claims it did not have jurisdiction over

9

those claims without an explicit grant of jurisdictionwhich was absent here Id at 101a-02a

After Elginrsquos MSPB appeal was dismissed onDecember 28 2007 Elgin joined by Lawson Tuckerand Colby brought this action challenging theconstitutionality of 5 USC sect 3328 in the UnitedStates District Court for the District of Massachusetts against the United States of America the USDepartment of the Treasury and the US Departmentof the Interior (collectively the Government) First AmCompl para 1 Petitioners contended that 5 USC sect 3328is a Bill of Attainder prohibited by Article I Section 9Clause 3 of the Constitution because it legislativelyimposes punishmentmdashthe lifetime bar on federalemploymentmdashon a specific group of men for theirirreversible failure to register Petitioners also contended that because the Selective Service registration requirement and employment bar appliesto men and not women it unlawfully discriminatesunder the equal protection component of the FifthAmendment Id parapara 1 4 Petitioners sought declaratoryand injunctive relief including reinstatement Id para 4The claims were brought under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 andjurisdiction was premised on 28 USC sectsect 1331 1343and 1346 First Am Compl para 5 Petitioners amendedthe complaint in January 2008 to add a class actionclaim Id para 1

The Government moved to dismiss arguing thatPetitionersrsquo claims failed on the merits Pet App 66aThe Government did not at that time contest the district courtrsquos jurisdiction Petitioners responded by

10

opposing the motion to dismiss as to the equalprotection claim and seeking partial summaryjudgment as to liability on the Bill of Attainder claimAfter a hearing the district court granted Petitionersrsquomotion for partial summary judgment holding that 5USC sect 3328 was a Bill of Attainder and granted theGovernmentrsquos motion to dismiss in part holding thatthe Selective Service scheme did not violate Petitionersrsquo rights to equal protection Id at 66a-67a

Petitioners then filed a motion for class certification and sought a preliminary injunction reinstatingPetitioners The Government filed a motion for reconsideration of the district courtrsquos grant of summaryjudgment on the Bill of Attainder claim contendingboth that the claim failed on the merits and arguing forthe first time that the district court did not have subject matter jurisdiction over the claim because theCSRA precludes district court review of federalemployment decisions Id at 41a-42a The district court held that it did have jurisdiction but granted themotion for reconsideration because it determined on reexamination that 5 USC sect 3328 was not a Bill ofAttainder Id at 51a 63a-64a

C Proceedings Before the First Circuit Petitioners appealed the district courtrsquos decisions

dismissing the equal protection claim and granting themotion for reconsideration on the Bill of Attainder claim to the United States Court of Appeals for theFirst Circuit The panel agreed that Petitionersrsquo claimsshould be dismissed but was divided on the questionwhether the district court had jurisdiction overPetitionersrsquo constitutional claims for equitable reliefId at 15a

11

The majority agreed with the Government that theCSRA provides the exclusive remedy for the termination or constructive termination of federal employees even for facial constitutional challenges likethis one 92 Stat 1111 et seq (codified as amended invarious sections of 5 USC) The CSRA permits non-exempt federal employees such as Petitioners toappeal their terminations to the MSPB if they wereremoved ldquofor such cause as will promote the efficiencyof the servicerdquo 5 USC sect 7513(a) see generally idsectsect 7511-7514 Employees can then appeal the MSPBdecision to the United States Court of Appeals for theFederal Circuit Id sect 7703(b)(1) As the majority notedthis Court has held that though the CSRA does notexplicitly state it is the exclusive remedy itscomprehensiveness generally precludes ordinarydistrict court review of federal employee removals PetApp 6a (citing United States v Fausto 484 US 439 443-55 (1988) and Bush v Lucas 462 US 367 368 (1983))

The majority held that Petitionersrsquo terminationswhich were based solely on 5 USC sect 3328 werenonetheless terminations made for ldquoefficiency of theservicerdquo under 5 USC sect 7513(a) and were thereforesubject to the review procedures outlined by the CSRAPet App 7a-9a Noting the circuit split on thequestion the majority held that the CSRA is theexclusive remedy even when the employee brings onlyconstitutional claims for equitable relief Id at 11a-12a amp 12a n4 Therefore the district court lacked jurisdiction over Petitionersrsquo claims

The majority recognized however that its conclusion might be different if the CSRA provided no

12

remedy for Petitionersrsquo constitutional claims Id at 13a Though the majority did not dispute that theMSPB was powerless to strike down a statute asunconstitutional the majority reasoned that theFederal Circuit had the authority to do so on appealfrom the MSPB Id at 14a Therefore according to themajority the merits of Petitionersrsquo constitutionalclaims could be aired and decided at the Federal Circuit if not the MSPB

Petitioners had argued that their constitutionalclaims could not have been heard in the Federal Circuit because the Federal Circuit has itself repeatedly stated that its jurisdiction on appeal fromthe MSPB is coextensive with the jurisdiction of theMSPB which would not have had jurisdiction overPetitionersrsquo claims The majority disagreed reasoningthat the Federal Circuit had never addressed the question of its jurisdiction under these precisecircumstances and had posited that it would berequired to entertain constitutional claims seekingequitable relief under Webster v Doe 486 US 592 (1988) Pet App 14a (citing Riggin v Office of SenateFair Emprsquot Practices 61 F3d 1563 1570 (Fed Cir 1995) and Brockmann v Deprsquot of the Air Force 27 F3d 544 546-47 (Fed Cir 1994)) Even if the FederalCircuit would have held that it lacked jurisdiction toreview Petitionersrsquo constitutional claims the majorityexplained Petitioners could still have soughtadjudication of their claims on certiorari in this CourtId

Judge Stahl disagreed that the district court lackedjurisdiction but would have rejected Petitionersrsquo claimson the merits Id at 15a Judge Stahl sided with the

13

Third Ninth and DC Circuits and held that because the CSRA does not explicitly state that it prohibitsemployees from bringing constitutional challenges forequitable relief in district court it does not precludesuch actions Id at 23a-24a

Judge Stahl disagreed with the majority thatPetitionersrsquo constitutional claims could have been addressed in the Federal Circuit He explained that theFederal Circuitrsquos jurisdiction has never exceeded thescope of the MSPBrsquos jurisdiction on review of appealsfrom the MSPB even when the appellant assertedconstitutional claims beyond the MSPBrsquos jurisdictionId at 21a-22a (citing Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) (unpublished)) Judge Stahlnoted that in Brockmann v Department of the Air Force relied on by the majority the Federal Circuithypothesized about the possibility of reviewingconstitutional claims but did not actually state that itwould or could do so Id (discussing Brockmann 27 F3d at 546-47) Therefore Judge Stahl reasoned thebetter reading of the Federal Circuitrsquos decisions wasthat it would not have had jurisdiction and the CSRAprocess would not have provided any review ofPetitionersrsquo constitutional claims Id at 22a

14

REASONS FOR GRANTING THE WRIT I This Court Should Resolve the Deep and Enduring

Circuit Split on the Question Whether the CivilService Reform Act Impliedly Precludes FederalDistrict Courts From Granting Equitable Relief onthe Constitutional Claims of Federal Employees As the First Circuit acknowledged this case raises

a question on which there is a deep and longstandingcircuit split whether the CSRA impliedly precludesfederal district courts from exercising jurisdiction overthe constitutional claims of federal employees seekinginjunctive relief Id at 12a n4 24a-25a The Third and DC Circuits have held that the CSRA does not preclude district court jurisdiction over equitableconstitutional claims the First Second and Tenth Circuits have held that it does and four other circuits have recognized the split2

A The Circuit Split 1 Two circuitsmdashthe Third and DC Circuitsmdashhave

held that the CSRA does not preclude federal

2See Am Fedrsquon of Govrsquot Emps Local 1 v Stone 502 F3d 1027 1037-39 (9th Cir 2007) (discussing circuit split) Dotson v Griesa 398 F3d 156 179 (2d Cir 2005) cert denied 547 US 1191 (2006)(ldquoThe circuits are divided as to whether equitable relief such asreinstatement is available to federal employees notwithstandingtheir general agreement that the CSRA precludes Bivens claims for damagesrdquo) Hardison v Cohen 375 F3d 1262 1266 (11th Cir2004) (ldquoSeveral of our sister circuits have differed on whetherequitable relief is precluded by the presence of a statutoryremedial schemerdquo) Paige v Cisneros 91 F3d 40 44 (7th Cir 1996) (discussing circuit split) Mitchum v Hurt 73 F3d 30 34 (3d Cir 1995) (discussing circuit split) Bryant v Cheney 924 F2d 525 525 (4th Cir 1991) (discussing ldquotension among the circuitsrdquo)

15

employees from bringing claims for equitable relief forconstitutional injuries in federal district court Athirdmdashthe Ninth Circuitmdashhas expressly agreed withthe Third and DC Circuits and has held that at least in some circumstances federal employees may bringconstitutional claims for equitable relief in district court

In Hubbard v EPA 809 F2d 1 (DC Cir 1986) adetective with the DC Police Department alleged thathe had been denied a position with the EnvironmentalProtection Agency because of statements he made tothe press about an investigation into illegal drug useby members of Congress Under the CSRA Hubbardcould appeal the decisionmdashincluding his constitutionalclaims under the First Amendmentmdashto OPM and file a petition with the Office of Special Counsel Hubbardbrought a Bivens action in district court for damages aswell as a claim for injunctive relief Id at 1 3 8

Relying on this Courtrsquos decision in Bush v Lucas the DC Circuit held that Hubbardrsquos Bivens claim for damages was precluded by the CSRArsquos comprehensiveremedial scheme In Bush this Court rejected a federalemployeersquos Bivens claim for damages because theldquocomprehensive procedural and substantive provisionsrdquoof the CSRA are ldquospecial factors counselling hesitationin the absence of affirmative action by CongressrdquoBush 462 US at 377 (quoting Carlson v Green 446 US 14 18-19 (1980)) However the DC Circuit ruledthat the CSRA did not preclude Hubbardrsquos claim forequitable relief because to eliminate courtsrsquo jurisdictionover equitable relief for constitutional violationsCongress must do so explicitly and the CSRA did notcontain any provision explicitly eliminating federal

16

court jurisdiction The DC Circuit explained thedifference

The courtsrsquo power to impose equitable remediesagainst agencies is broader than its power toimpose legal remedies against individualsBivens actions are a recent judicial creation and as Carlson v Green made clear comparativelyeasy for Congress to preempt The courtsrsquo power to enjoin unconstitutional acts by the government however is inherent in the Constitution itself see Marbury v Madison 5 US (1 Cranch) 137 LEd 60 (1803) AlthoughCongress may limit this power see Ex Parte McCardle 74 US (7 Wall) 506 19 LEd 264(1869) CSRA did not explicitly limit ourjurisdiction to enjoin unconstitutional personnelactions by federal agencies

Hubbard 809 F2d at 11 n15 The Bivens portion of the Hubbard decision was

reheard and affirmed en banc in Spagnola v Mathis 859 F2d 223 (DC Cir 1988) Although the en banccourt did not rehear the question whether the CSRAalso precludes constitutional claims for equitable reliefit made clear that its decision with regard to theBivens claim left the equitable claim intact ldquo[T]imeand again this court has affirmed the right of civil servants to seek equitable relief against their supervisors and the agency itself in vindication oftheir constitutional rightsrdquo Id at 229-30

In Mitchum v Hurt 73 F3d at 36 the Third Circuit joined the DC Circuit in holding that theCSRA did not preclude district court jurisdiction over

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

8

In 2006 OPM declined to issue a waiver makinghim eligible for employment Id para 57 Colbyrsquossupervisor at the IRS appealed the determinationwithin OPM explaining that Colby was ldquoan extremelyvaluable and integralrdquo employee and noting that theIRS had invested $25000 in training Colby Id para 58OPM affirmed its decision not to issue Colby a waiverand Colby was terminated on August 3 2007 Id parapara 59-60

B Proceedings Before the Merit SystemsProtection Board and the District Court

The Civil Service Reform Act (CSRA) 92 Stat 1111 et seq provides that non-exempt federal employees(such as Petitioners had been) may challenge theirterminations before the Merit Systems ProtectionBoard (MSPB) under certain conditions 5 USCsectsect 7701(a) 7512(1) 7513(d) Shortly after beingterminated under 5 USC sect 3328 Petitioner Elginappealed the decision to the MSPB arguing that 5USC sect 3328 is a Bill of Attainder and that he wassubject to unconstitutional sex-based discriminationbecause the Selective Service registration requirementonly applies to men On November 16 2007 at theTreasury Departmentrsquos urging the MSPB dismissedElginrsquos appeal for lack of jurisdiction Pet App 100a-01a The MSPB explained that it lacked jurisdictionover appeals where employees were terminated underabsolute statutory prohibitions such as 5 USCsect 3328 Id The MSPB also held that it lacked authorityto rule on the constitutionality of a statute and notedthat to the extent it could review any constitutional ordiscrimination claims it did not have jurisdiction over

9

those claims without an explicit grant of jurisdictionwhich was absent here Id at 101a-02a

After Elginrsquos MSPB appeal was dismissed onDecember 28 2007 Elgin joined by Lawson Tuckerand Colby brought this action challenging theconstitutionality of 5 USC sect 3328 in the UnitedStates District Court for the District of Massachusetts against the United States of America the USDepartment of the Treasury and the US Departmentof the Interior (collectively the Government) First AmCompl para 1 Petitioners contended that 5 USC sect 3328is a Bill of Attainder prohibited by Article I Section 9Clause 3 of the Constitution because it legislativelyimposes punishmentmdashthe lifetime bar on federalemploymentmdashon a specific group of men for theirirreversible failure to register Petitioners also contended that because the Selective Service registration requirement and employment bar appliesto men and not women it unlawfully discriminatesunder the equal protection component of the FifthAmendment Id parapara 1 4 Petitioners sought declaratoryand injunctive relief including reinstatement Id para 4The claims were brought under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 andjurisdiction was premised on 28 USC sectsect 1331 1343and 1346 First Am Compl para 5 Petitioners amendedthe complaint in January 2008 to add a class actionclaim Id para 1

The Government moved to dismiss arguing thatPetitionersrsquo claims failed on the merits Pet App 66aThe Government did not at that time contest the district courtrsquos jurisdiction Petitioners responded by

10

opposing the motion to dismiss as to the equalprotection claim and seeking partial summaryjudgment as to liability on the Bill of Attainder claimAfter a hearing the district court granted Petitionersrsquomotion for partial summary judgment holding that 5USC sect 3328 was a Bill of Attainder and granted theGovernmentrsquos motion to dismiss in part holding thatthe Selective Service scheme did not violate Petitionersrsquo rights to equal protection Id at 66a-67a

Petitioners then filed a motion for class certification and sought a preliminary injunction reinstatingPetitioners The Government filed a motion for reconsideration of the district courtrsquos grant of summaryjudgment on the Bill of Attainder claim contendingboth that the claim failed on the merits and arguing forthe first time that the district court did not have subject matter jurisdiction over the claim because theCSRA precludes district court review of federalemployment decisions Id at 41a-42a The district court held that it did have jurisdiction but granted themotion for reconsideration because it determined on reexamination that 5 USC sect 3328 was not a Bill ofAttainder Id at 51a 63a-64a

C Proceedings Before the First Circuit Petitioners appealed the district courtrsquos decisions

dismissing the equal protection claim and granting themotion for reconsideration on the Bill of Attainder claim to the United States Court of Appeals for theFirst Circuit The panel agreed that Petitionersrsquo claimsshould be dismissed but was divided on the questionwhether the district court had jurisdiction overPetitionersrsquo constitutional claims for equitable reliefId at 15a

11

The majority agreed with the Government that theCSRA provides the exclusive remedy for the termination or constructive termination of federal employees even for facial constitutional challenges likethis one 92 Stat 1111 et seq (codified as amended invarious sections of 5 USC) The CSRA permits non-exempt federal employees such as Petitioners toappeal their terminations to the MSPB if they wereremoved ldquofor such cause as will promote the efficiencyof the servicerdquo 5 USC sect 7513(a) see generally idsectsect 7511-7514 Employees can then appeal the MSPBdecision to the United States Court of Appeals for theFederal Circuit Id sect 7703(b)(1) As the majority notedthis Court has held that though the CSRA does notexplicitly state it is the exclusive remedy itscomprehensiveness generally precludes ordinarydistrict court review of federal employee removals PetApp 6a (citing United States v Fausto 484 US 439 443-55 (1988) and Bush v Lucas 462 US 367 368 (1983))

The majority held that Petitionersrsquo terminationswhich were based solely on 5 USC sect 3328 werenonetheless terminations made for ldquoefficiency of theservicerdquo under 5 USC sect 7513(a) and were thereforesubject to the review procedures outlined by the CSRAPet App 7a-9a Noting the circuit split on thequestion the majority held that the CSRA is theexclusive remedy even when the employee brings onlyconstitutional claims for equitable relief Id at 11a-12a amp 12a n4 Therefore the district court lacked jurisdiction over Petitionersrsquo claims

The majority recognized however that its conclusion might be different if the CSRA provided no

12

remedy for Petitionersrsquo constitutional claims Id at 13a Though the majority did not dispute that theMSPB was powerless to strike down a statute asunconstitutional the majority reasoned that theFederal Circuit had the authority to do so on appealfrom the MSPB Id at 14a Therefore according to themajority the merits of Petitionersrsquo constitutionalclaims could be aired and decided at the Federal Circuit if not the MSPB

Petitioners had argued that their constitutionalclaims could not have been heard in the Federal Circuit because the Federal Circuit has itself repeatedly stated that its jurisdiction on appeal fromthe MSPB is coextensive with the jurisdiction of theMSPB which would not have had jurisdiction overPetitionersrsquo claims The majority disagreed reasoningthat the Federal Circuit had never addressed the question of its jurisdiction under these precisecircumstances and had posited that it would berequired to entertain constitutional claims seekingequitable relief under Webster v Doe 486 US 592 (1988) Pet App 14a (citing Riggin v Office of SenateFair Emprsquot Practices 61 F3d 1563 1570 (Fed Cir 1995) and Brockmann v Deprsquot of the Air Force 27 F3d 544 546-47 (Fed Cir 1994)) Even if the FederalCircuit would have held that it lacked jurisdiction toreview Petitionersrsquo constitutional claims the majorityexplained Petitioners could still have soughtadjudication of their claims on certiorari in this CourtId

Judge Stahl disagreed that the district court lackedjurisdiction but would have rejected Petitionersrsquo claimson the merits Id at 15a Judge Stahl sided with the

13

Third Ninth and DC Circuits and held that because the CSRA does not explicitly state that it prohibitsemployees from bringing constitutional challenges forequitable relief in district court it does not precludesuch actions Id at 23a-24a

Judge Stahl disagreed with the majority thatPetitionersrsquo constitutional claims could have been addressed in the Federal Circuit He explained that theFederal Circuitrsquos jurisdiction has never exceeded thescope of the MSPBrsquos jurisdiction on review of appealsfrom the MSPB even when the appellant assertedconstitutional claims beyond the MSPBrsquos jurisdictionId at 21a-22a (citing Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) (unpublished)) Judge Stahlnoted that in Brockmann v Department of the Air Force relied on by the majority the Federal Circuithypothesized about the possibility of reviewingconstitutional claims but did not actually state that itwould or could do so Id (discussing Brockmann 27 F3d at 546-47) Therefore Judge Stahl reasoned thebetter reading of the Federal Circuitrsquos decisions wasthat it would not have had jurisdiction and the CSRAprocess would not have provided any review ofPetitionersrsquo constitutional claims Id at 22a

14

REASONS FOR GRANTING THE WRIT I This Court Should Resolve the Deep and Enduring

Circuit Split on the Question Whether the CivilService Reform Act Impliedly Precludes FederalDistrict Courts From Granting Equitable Relief onthe Constitutional Claims of Federal Employees As the First Circuit acknowledged this case raises

a question on which there is a deep and longstandingcircuit split whether the CSRA impliedly precludesfederal district courts from exercising jurisdiction overthe constitutional claims of federal employees seekinginjunctive relief Id at 12a n4 24a-25a The Third and DC Circuits have held that the CSRA does not preclude district court jurisdiction over equitableconstitutional claims the First Second and Tenth Circuits have held that it does and four other circuits have recognized the split2

A The Circuit Split 1 Two circuitsmdashthe Third and DC Circuitsmdashhave

held that the CSRA does not preclude federal

2See Am Fedrsquon of Govrsquot Emps Local 1 v Stone 502 F3d 1027 1037-39 (9th Cir 2007) (discussing circuit split) Dotson v Griesa 398 F3d 156 179 (2d Cir 2005) cert denied 547 US 1191 (2006)(ldquoThe circuits are divided as to whether equitable relief such asreinstatement is available to federal employees notwithstandingtheir general agreement that the CSRA precludes Bivens claims for damagesrdquo) Hardison v Cohen 375 F3d 1262 1266 (11th Cir2004) (ldquoSeveral of our sister circuits have differed on whetherequitable relief is precluded by the presence of a statutoryremedial schemerdquo) Paige v Cisneros 91 F3d 40 44 (7th Cir 1996) (discussing circuit split) Mitchum v Hurt 73 F3d 30 34 (3d Cir 1995) (discussing circuit split) Bryant v Cheney 924 F2d 525 525 (4th Cir 1991) (discussing ldquotension among the circuitsrdquo)

15

employees from bringing claims for equitable relief forconstitutional injuries in federal district court Athirdmdashthe Ninth Circuitmdashhas expressly agreed withthe Third and DC Circuits and has held that at least in some circumstances federal employees may bringconstitutional claims for equitable relief in district court

In Hubbard v EPA 809 F2d 1 (DC Cir 1986) adetective with the DC Police Department alleged thathe had been denied a position with the EnvironmentalProtection Agency because of statements he made tothe press about an investigation into illegal drug useby members of Congress Under the CSRA Hubbardcould appeal the decisionmdashincluding his constitutionalclaims under the First Amendmentmdashto OPM and file a petition with the Office of Special Counsel Hubbardbrought a Bivens action in district court for damages aswell as a claim for injunctive relief Id at 1 3 8

Relying on this Courtrsquos decision in Bush v Lucas the DC Circuit held that Hubbardrsquos Bivens claim for damages was precluded by the CSRArsquos comprehensiveremedial scheme In Bush this Court rejected a federalemployeersquos Bivens claim for damages because theldquocomprehensive procedural and substantive provisionsrdquoof the CSRA are ldquospecial factors counselling hesitationin the absence of affirmative action by CongressrdquoBush 462 US at 377 (quoting Carlson v Green 446 US 14 18-19 (1980)) However the DC Circuit ruledthat the CSRA did not preclude Hubbardrsquos claim forequitable relief because to eliminate courtsrsquo jurisdictionover equitable relief for constitutional violationsCongress must do so explicitly and the CSRA did notcontain any provision explicitly eliminating federal

16

court jurisdiction The DC Circuit explained thedifference

The courtsrsquo power to impose equitable remediesagainst agencies is broader than its power toimpose legal remedies against individualsBivens actions are a recent judicial creation and as Carlson v Green made clear comparativelyeasy for Congress to preempt The courtsrsquo power to enjoin unconstitutional acts by the government however is inherent in the Constitution itself see Marbury v Madison 5 US (1 Cranch) 137 LEd 60 (1803) AlthoughCongress may limit this power see Ex Parte McCardle 74 US (7 Wall) 506 19 LEd 264(1869) CSRA did not explicitly limit ourjurisdiction to enjoin unconstitutional personnelactions by federal agencies

Hubbard 809 F2d at 11 n15 The Bivens portion of the Hubbard decision was

reheard and affirmed en banc in Spagnola v Mathis 859 F2d 223 (DC Cir 1988) Although the en banccourt did not rehear the question whether the CSRAalso precludes constitutional claims for equitable reliefit made clear that its decision with regard to theBivens claim left the equitable claim intact ldquo[T]imeand again this court has affirmed the right of civil servants to seek equitable relief against their supervisors and the agency itself in vindication oftheir constitutional rightsrdquo Id at 229-30

In Mitchum v Hurt 73 F3d at 36 the Third Circuit joined the DC Circuit in holding that theCSRA did not preclude district court jurisdiction over

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

9

those claims without an explicit grant of jurisdictionwhich was absent here Id at 101a-02a

After Elginrsquos MSPB appeal was dismissed onDecember 28 2007 Elgin joined by Lawson Tuckerand Colby brought this action challenging theconstitutionality of 5 USC sect 3328 in the UnitedStates District Court for the District of Massachusetts against the United States of America the USDepartment of the Treasury and the US Departmentof the Interior (collectively the Government) First AmCompl para 1 Petitioners contended that 5 USC sect 3328is a Bill of Attainder prohibited by Article I Section 9Clause 3 of the Constitution because it legislativelyimposes punishmentmdashthe lifetime bar on federalemploymentmdashon a specific group of men for theirirreversible failure to register Petitioners also contended that because the Selective Service registration requirement and employment bar appliesto men and not women it unlawfully discriminatesunder the equal protection component of the FifthAmendment Id parapara 1 4 Petitioners sought declaratoryand injunctive relief including reinstatement Id para 4The claims were brought under the DeclaratoryJudgment Act 28 USC sectsect 2201 and 2202 and theAdministrative Procedure Act 5 USC sect 702 andjurisdiction was premised on 28 USC sectsect 1331 1343and 1346 First Am Compl para 5 Petitioners amendedthe complaint in January 2008 to add a class actionclaim Id para 1

The Government moved to dismiss arguing thatPetitionersrsquo claims failed on the merits Pet App 66aThe Government did not at that time contest the district courtrsquos jurisdiction Petitioners responded by

10

opposing the motion to dismiss as to the equalprotection claim and seeking partial summaryjudgment as to liability on the Bill of Attainder claimAfter a hearing the district court granted Petitionersrsquomotion for partial summary judgment holding that 5USC sect 3328 was a Bill of Attainder and granted theGovernmentrsquos motion to dismiss in part holding thatthe Selective Service scheme did not violate Petitionersrsquo rights to equal protection Id at 66a-67a

Petitioners then filed a motion for class certification and sought a preliminary injunction reinstatingPetitioners The Government filed a motion for reconsideration of the district courtrsquos grant of summaryjudgment on the Bill of Attainder claim contendingboth that the claim failed on the merits and arguing forthe first time that the district court did not have subject matter jurisdiction over the claim because theCSRA precludes district court review of federalemployment decisions Id at 41a-42a The district court held that it did have jurisdiction but granted themotion for reconsideration because it determined on reexamination that 5 USC sect 3328 was not a Bill ofAttainder Id at 51a 63a-64a

C Proceedings Before the First Circuit Petitioners appealed the district courtrsquos decisions

dismissing the equal protection claim and granting themotion for reconsideration on the Bill of Attainder claim to the United States Court of Appeals for theFirst Circuit The panel agreed that Petitionersrsquo claimsshould be dismissed but was divided on the questionwhether the district court had jurisdiction overPetitionersrsquo constitutional claims for equitable reliefId at 15a

11

The majority agreed with the Government that theCSRA provides the exclusive remedy for the termination or constructive termination of federal employees even for facial constitutional challenges likethis one 92 Stat 1111 et seq (codified as amended invarious sections of 5 USC) The CSRA permits non-exempt federal employees such as Petitioners toappeal their terminations to the MSPB if they wereremoved ldquofor such cause as will promote the efficiencyof the servicerdquo 5 USC sect 7513(a) see generally idsectsect 7511-7514 Employees can then appeal the MSPBdecision to the United States Court of Appeals for theFederal Circuit Id sect 7703(b)(1) As the majority notedthis Court has held that though the CSRA does notexplicitly state it is the exclusive remedy itscomprehensiveness generally precludes ordinarydistrict court review of federal employee removals PetApp 6a (citing United States v Fausto 484 US 439 443-55 (1988) and Bush v Lucas 462 US 367 368 (1983))

The majority held that Petitionersrsquo terminationswhich were based solely on 5 USC sect 3328 werenonetheless terminations made for ldquoefficiency of theservicerdquo under 5 USC sect 7513(a) and were thereforesubject to the review procedures outlined by the CSRAPet App 7a-9a Noting the circuit split on thequestion the majority held that the CSRA is theexclusive remedy even when the employee brings onlyconstitutional claims for equitable relief Id at 11a-12a amp 12a n4 Therefore the district court lacked jurisdiction over Petitionersrsquo claims

The majority recognized however that its conclusion might be different if the CSRA provided no

12

remedy for Petitionersrsquo constitutional claims Id at 13a Though the majority did not dispute that theMSPB was powerless to strike down a statute asunconstitutional the majority reasoned that theFederal Circuit had the authority to do so on appealfrom the MSPB Id at 14a Therefore according to themajority the merits of Petitionersrsquo constitutionalclaims could be aired and decided at the Federal Circuit if not the MSPB

Petitioners had argued that their constitutionalclaims could not have been heard in the Federal Circuit because the Federal Circuit has itself repeatedly stated that its jurisdiction on appeal fromthe MSPB is coextensive with the jurisdiction of theMSPB which would not have had jurisdiction overPetitionersrsquo claims The majority disagreed reasoningthat the Federal Circuit had never addressed the question of its jurisdiction under these precisecircumstances and had posited that it would berequired to entertain constitutional claims seekingequitable relief under Webster v Doe 486 US 592 (1988) Pet App 14a (citing Riggin v Office of SenateFair Emprsquot Practices 61 F3d 1563 1570 (Fed Cir 1995) and Brockmann v Deprsquot of the Air Force 27 F3d 544 546-47 (Fed Cir 1994)) Even if the FederalCircuit would have held that it lacked jurisdiction toreview Petitionersrsquo constitutional claims the majorityexplained Petitioners could still have soughtadjudication of their claims on certiorari in this CourtId

Judge Stahl disagreed that the district court lackedjurisdiction but would have rejected Petitionersrsquo claimson the merits Id at 15a Judge Stahl sided with the

13

Third Ninth and DC Circuits and held that because the CSRA does not explicitly state that it prohibitsemployees from bringing constitutional challenges forequitable relief in district court it does not precludesuch actions Id at 23a-24a

Judge Stahl disagreed with the majority thatPetitionersrsquo constitutional claims could have been addressed in the Federal Circuit He explained that theFederal Circuitrsquos jurisdiction has never exceeded thescope of the MSPBrsquos jurisdiction on review of appealsfrom the MSPB even when the appellant assertedconstitutional claims beyond the MSPBrsquos jurisdictionId at 21a-22a (citing Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) (unpublished)) Judge Stahlnoted that in Brockmann v Department of the Air Force relied on by the majority the Federal Circuithypothesized about the possibility of reviewingconstitutional claims but did not actually state that itwould or could do so Id (discussing Brockmann 27 F3d at 546-47) Therefore Judge Stahl reasoned thebetter reading of the Federal Circuitrsquos decisions wasthat it would not have had jurisdiction and the CSRAprocess would not have provided any review ofPetitionersrsquo constitutional claims Id at 22a

14

REASONS FOR GRANTING THE WRIT I This Court Should Resolve the Deep and Enduring

Circuit Split on the Question Whether the CivilService Reform Act Impliedly Precludes FederalDistrict Courts From Granting Equitable Relief onthe Constitutional Claims of Federal Employees As the First Circuit acknowledged this case raises

a question on which there is a deep and longstandingcircuit split whether the CSRA impliedly precludesfederal district courts from exercising jurisdiction overthe constitutional claims of federal employees seekinginjunctive relief Id at 12a n4 24a-25a The Third and DC Circuits have held that the CSRA does not preclude district court jurisdiction over equitableconstitutional claims the First Second and Tenth Circuits have held that it does and four other circuits have recognized the split2

A The Circuit Split 1 Two circuitsmdashthe Third and DC Circuitsmdashhave

held that the CSRA does not preclude federal

2See Am Fedrsquon of Govrsquot Emps Local 1 v Stone 502 F3d 1027 1037-39 (9th Cir 2007) (discussing circuit split) Dotson v Griesa 398 F3d 156 179 (2d Cir 2005) cert denied 547 US 1191 (2006)(ldquoThe circuits are divided as to whether equitable relief such asreinstatement is available to federal employees notwithstandingtheir general agreement that the CSRA precludes Bivens claims for damagesrdquo) Hardison v Cohen 375 F3d 1262 1266 (11th Cir2004) (ldquoSeveral of our sister circuits have differed on whetherequitable relief is precluded by the presence of a statutoryremedial schemerdquo) Paige v Cisneros 91 F3d 40 44 (7th Cir 1996) (discussing circuit split) Mitchum v Hurt 73 F3d 30 34 (3d Cir 1995) (discussing circuit split) Bryant v Cheney 924 F2d 525 525 (4th Cir 1991) (discussing ldquotension among the circuitsrdquo)

15

employees from bringing claims for equitable relief forconstitutional injuries in federal district court Athirdmdashthe Ninth Circuitmdashhas expressly agreed withthe Third and DC Circuits and has held that at least in some circumstances federal employees may bringconstitutional claims for equitable relief in district court

In Hubbard v EPA 809 F2d 1 (DC Cir 1986) adetective with the DC Police Department alleged thathe had been denied a position with the EnvironmentalProtection Agency because of statements he made tothe press about an investigation into illegal drug useby members of Congress Under the CSRA Hubbardcould appeal the decisionmdashincluding his constitutionalclaims under the First Amendmentmdashto OPM and file a petition with the Office of Special Counsel Hubbardbrought a Bivens action in district court for damages aswell as a claim for injunctive relief Id at 1 3 8

Relying on this Courtrsquos decision in Bush v Lucas the DC Circuit held that Hubbardrsquos Bivens claim for damages was precluded by the CSRArsquos comprehensiveremedial scheme In Bush this Court rejected a federalemployeersquos Bivens claim for damages because theldquocomprehensive procedural and substantive provisionsrdquoof the CSRA are ldquospecial factors counselling hesitationin the absence of affirmative action by CongressrdquoBush 462 US at 377 (quoting Carlson v Green 446 US 14 18-19 (1980)) However the DC Circuit ruledthat the CSRA did not preclude Hubbardrsquos claim forequitable relief because to eliminate courtsrsquo jurisdictionover equitable relief for constitutional violationsCongress must do so explicitly and the CSRA did notcontain any provision explicitly eliminating federal

16

court jurisdiction The DC Circuit explained thedifference

The courtsrsquo power to impose equitable remediesagainst agencies is broader than its power toimpose legal remedies against individualsBivens actions are a recent judicial creation and as Carlson v Green made clear comparativelyeasy for Congress to preempt The courtsrsquo power to enjoin unconstitutional acts by the government however is inherent in the Constitution itself see Marbury v Madison 5 US (1 Cranch) 137 LEd 60 (1803) AlthoughCongress may limit this power see Ex Parte McCardle 74 US (7 Wall) 506 19 LEd 264(1869) CSRA did not explicitly limit ourjurisdiction to enjoin unconstitutional personnelactions by federal agencies

Hubbard 809 F2d at 11 n15 The Bivens portion of the Hubbard decision was

reheard and affirmed en banc in Spagnola v Mathis 859 F2d 223 (DC Cir 1988) Although the en banccourt did not rehear the question whether the CSRAalso precludes constitutional claims for equitable reliefit made clear that its decision with regard to theBivens claim left the equitable claim intact ldquo[T]imeand again this court has affirmed the right of civil servants to seek equitable relief against their supervisors and the agency itself in vindication oftheir constitutional rightsrdquo Id at 229-30

In Mitchum v Hurt 73 F3d at 36 the Third Circuit joined the DC Circuit in holding that theCSRA did not preclude district court jurisdiction over

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

10

opposing the motion to dismiss as to the equalprotection claim and seeking partial summaryjudgment as to liability on the Bill of Attainder claimAfter a hearing the district court granted Petitionersrsquomotion for partial summary judgment holding that 5USC sect 3328 was a Bill of Attainder and granted theGovernmentrsquos motion to dismiss in part holding thatthe Selective Service scheme did not violate Petitionersrsquo rights to equal protection Id at 66a-67a

Petitioners then filed a motion for class certification and sought a preliminary injunction reinstatingPetitioners The Government filed a motion for reconsideration of the district courtrsquos grant of summaryjudgment on the Bill of Attainder claim contendingboth that the claim failed on the merits and arguing forthe first time that the district court did not have subject matter jurisdiction over the claim because theCSRA precludes district court review of federalemployment decisions Id at 41a-42a The district court held that it did have jurisdiction but granted themotion for reconsideration because it determined on reexamination that 5 USC sect 3328 was not a Bill ofAttainder Id at 51a 63a-64a

C Proceedings Before the First Circuit Petitioners appealed the district courtrsquos decisions

dismissing the equal protection claim and granting themotion for reconsideration on the Bill of Attainder claim to the United States Court of Appeals for theFirst Circuit The panel agreed that Petitionersrsquo claimsshould be dismissed but was divided on the questionwhether the district court had jurisdiction overPetitionersrsquo constitutional claims for equitable reliefId at 15a

11

The majority agreed with the Government that theCSRA provides the exclusive remedy for the termination or constructive termination of federal employees even for facial constitutional challenges likethis one 92 Stat 1111 et seq (codified as amended invarious sections of 5 USC) The CSRA permits non-exempt federal employees such as Petitioners toappeal their terminations to the MSPB if they wereremoved ldquofor such cause as will promote the efficiencyof the servicerdquo 5 USC sect 7513(a) see generally idsectsect 7511-7514 Employees can then appeal the MSPBdecision to the United States Court of Appeals for theFederal Circuit Id sect 7703(b)(1) As the majority notedthis Court has held that though the CSRA does notexplicitly state it is the exclusive remedy itscomprehensiveness generally precludes ordinarydistrict court review of federal employee removals PetApp 6a (citing United States v Fausto 484 US 439 443-55 (1988) and Bush v Lucas 462 US 367 368 (1983))

The majority held that Petitionersrsquo terminationswhich were based solely on 5 USC sect 3328 werenonetheless terminations made for ldquoefficiency of theservicerdquo under 5 USC sect 7513(a) and were thereforesubject to the review procedures outlined by the CSRAPet App 7a-9a Noting the circuit split on thequestion the majority held that the CSRA is theexclusive remedy even when the employee brings onlyconstitutional claims for equitable relief Id at 11a-12a amp 12a n4 Therefore the district court lacked jurisdiction over Petitionersrsquo claims

The majority recognized however that its conclusion might be different if the CSRA provided no

12

remedy for Petitionersrsquo constitutional claims Id at 13a Though the majority did not dispute that theMSPB was powerless to strike down a statute asunconstitutional the majority reasoned that theFederal Circuit had the authority to do so on appealfrom the MSPB Id at 14a Therefore according to themajority the merits of Petitionersrsquo constitutionalclaims could be aired and decided at the Federal Circuit if not the MSPB

Petitioners had argued that their constitutionalclaims could not have been heard in the Federal Circuit because the Federal Circuit has itself repeatedly stated that its jurisdiction on appeal fromthe MSPB is coextensive with the jurisdiction of theMSPB which would not have had jurisdiction overPetitionersrsquo claims The majority disagreed reasoningthat the Federal Circuit had never addressed the question of its jurisdiction under these precisecircumstances and had posited that it would berequired to entertain constitutional claims seekingequitable relief under Webster v Doe 486 US 592 (1988) Pet App 14a (citing Riggin v Office of SenateFair Emprsquot Practices 61 F3d 1563 1570 (Fed Cir 1995) and Brockmann v Deprsquot of the Air Force 27 F3d 544 546-47 (Fed Cir 1994)) Even if the FederalCircuit would have held that it lacked jurisdiction toreview Petitionersrsquo constitutional claims the majorityexplained Petitioners could still have soughtadjudication of their claims on certiorari in this CourtId

Judge Stahl disagreed that the district court lackedjurisdiction but would have rejected Petitionersrsquo claimson the merits Id at 15a Judge Stahl sided with the

13

Third Ninth and DC Circuits and held that because the CSRA does not explicitly state that it prohibitsemployees from bringing constitutional challenges forequitable relief in district court it does not precludesuch actions Id at 23a-24a

Judge Stahl disagreed with the majority thatPetitionersrsquo constitutional claims could have been addressed in the Federal Circuit He explained that theFederal Circuitrsquos jurisdiction has never exceeded thescope of the MSPBrsquos jurisdiction on review of appealsfrom the MSPB even when the appellant assertedconstitutional claims beyond the MSPBrsquos jurisdictionId at 21a-22a (citing Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) (unpublished)) Judge Stahlnoted that in Brockmann v Department of the Air Force relied on by the majority the Federal Circuithypothesized about the possibility of reviewingconstitutional claims but did not actually state that itwould or could do so Id (discussing Brockmann 27 F3d at 546-47) Therefore Judge Stahl reasoned thebetter reading of the Federal Circuitrsquos decisions wasthat it would not have had jurisdiction and the CSRAprocess would not have provided any review ofPetitionersrsquo constitutional claims Id at 22a

14

REASONS FOR GRANTING THE WRIT I This Court Should Resolve the Deep and Enduring

Circuit Split on the Question Whether the CivilService Reform Act Impliedly Precludes FederalDistrict Courts From Granting Equitable Relief onthe Constitutional Claims of Federal Employees As the First Circuit acknowledged this case raises

a question on which there is a deep and longstandingcircuit split whether the CSRA impliedly precludesfederal district courts from exercising jurisdiction overthe constitutional claims of federal employees seekinginjunctive relief Id at 12a n4 24a-25a The Third and DC Circuits have held that the CSRA does not preclude district court jurisdiction over equitableconstitutional claims the First Second and Tenth Circuits have held that it does and four other circuits have recognized the split2

A The Circuit Split 1 Two circuitsmdashthe Third and DC Circuitsmdashhave

held that the CSRA does not preclude federal

2See Am Fedrsquon of Govrsquot Emps Local 1 v Stone 502 F3d 1027 1037-39 (9th Cir 2007) (discussing circuit split) Dotson v Griesa 398 F3d 156 179 (2d Cir 2005) cert denied 547 US 1191 (2006)(ldquoThe circuits are divided as to whether equitable relief such asreinstatement is available to federal employees notwithstandingtheir general agreement that the CSRA precludes Bivens claims for damagesrdquo) Hardison v Cohen 375 F3d 1262 1266 (11th Cir2004) (ldquoSeveral of our sister circuits have differed on whetherequitable relief is precluded by the presence of a statutoryremedial schemerdquo) Paige v Cisneros 91 F3d 40 44 (7th Cir 1996) (discussing circuit split) Mitchum v Hurt 73 F3d 30 34 (3d Cir 1995) (discussing circuit split) Bryant v Cheney 924 F2d 525 525 (4th Cir 1991) (discussing ldquotension among the circuitsrdquo)

15

employees from bringing claims for equitable relief forconstitutional injuries in federal district court Athirdmdashthe Ninth Circuitmdashhas expressly agreed withthe Third and DC Circuits and has held that at least in some circumstances federal employees may bringconstitutional claims for equitable relief in district court

In Hubbard v EPA 809 F2d 1 (DC Cir 1986) adetective with the DC Police Department alleged thathe had been denied a position with the EnvironmentalProtection Agency because of statements he made tothe press about an investigation into illegal drug useby members of Congress Under the CSRA Hubbardcould appeal the decisionmdashincluding his constitutionalclaims under the First Amendmentmdashto OPM and file a petition with the Office of Special Counsel Hubbardbrought a Bivens action in district court for damages aswell as a claim for injunctive relief Id at 1 3 8

Relying on this Courtrsquos decision in Bush v Lucas the DC Circuit held that Hubbardrsquos Bivens claim for damages was precluded by the CSRArsquos comprehensiveremedial scheme In Bush this Court rejected a federalemployeersquos Bivens claim for damages because theldquocomprehensive procedural and substantive provisionsrdquoof the CSRA are ldquospecial factors counselling hesitationin the absence of affirmative action by CongressrdquoBush 462 US at 377 (quoting Carlson v Green 446 US 14 18-19 (1980)) However the DC Circuit ruledthat the CSRA did not preclude Hubbardrsquos claim forequitable relief because to eliminate courtsrsquo jurisdictionover equitable relief for constitutional violationsCongress must do so explicitly and the CSRA did notcontain any provision explicitly eliminating federal

16

court jurisdiction The DC Circuit explained thedifference

The courtsrsquo power to impose equitable remediesagainst agencies is broader than its power toimpose legal remedies against individualsBivens actions are a recent judicial creation and as Carlson v Green made clear comparativelyeasy for Congress to preempt The courtsrsquo power to enjoin unconstitutional acts by the government however is inherent in the Constitution itself see Marbury v Madison 5 US (1 Cranch) 137 LEd 60 (1803) AlthoughCongress may limit this power see Ex Parte McCardle 74 US (7 Wall) 506 19 LEd 264(1869) CSRA did not explicitly limit ourjurisdiction to enjoin unconstitutional personnelactions by federal agencies

Hubbard 809 F2d at 11 n15 The Bivens portion of the Hubbard decision was

reheard and affirmed en banc in Spagnola v Mathis 859 F2d 223 (DC Cir 1988) Although the en banccourt did not rehear the question whether the CSRAalso precludes constitutional claims for equitable reliefit made clear that its decision with regard to theBivens claim left the equitable claim intact ldquo[T]imeand again this court has affirmed the right of civil servants to seek equitable relief against their supervisors and the agency itself in vindication oftheir constitutional rightsrdquo Id at 229-30

In Mitchum v Hurt 73 F3d at 36 the Third Circuit joined the DC Circuit in holding that theCSRA did not preclude district court jurisdiction over

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

11

The majority agreed with the Government that theCSRA provides the exclusive remedy for the termination or constructive termination of federal employees even for facial constitutional challenges likethis one 92 Stat 1111 et seq (codified as amended invarious sections of 5 USC) The CSRA permits non-exempt federal employees such as Petitioners toappeal their terminations to the MSPB if they wereremoved ldquofor such cause as will promote the efficiencyof the servicerdquo 5 USC sect 7513(a) see generally idsectsect 7511-7514 Employees can then appeal the MSPBdecision to the United States Court of Appeals for theFederal Circuit Id sect 7703(b)(1) As the majority notedthis Court has held that though the CSRA does notexplicitly state it is the exclusive remedy itscomprehensiveness generally precludes ordinarydistrict court review of federal employee removals PetApp 6a (citing United States v Fausto 484 US 439 443-55 (1988) and Bush v Lucas 462 US 367 368 (1983))

The majority held that Petitionersrsquo terminationswhich were based solely on 5 USC sect 3328 werenonetheless terminations made for ldquoefficiency of theservicerdquo under 5 USC sect 7513(a) and were thereforesubject to the review procedures outlined by the CSRAPet App 7a-9a Noting the circuit split on thequestion the majority held that the CSRA is theexclusive remedy even when the employee brings onlyconstitutional claims for equitable relief Id at 11a-12a amp 12a n4 Therefore the district court lacked jurisdiction over Petitionersrsquo claims

The majority recognized however that its conclusion might be different if the CSRA provided no

12

remedy for Petitionersrsquo constitutional claims Id at 13a Though the majority did not dispute that theMSPB was powerless to strike down a statute asunconstitutional the majority reasoned that theFederal Circuit had the authority to do so on appealfrom the MSPB Id at 14a Therefore according to themajority the merits of Petitionersrsquo constitutionalclaims could be aired and decided at the Federal Circuit if not the MSPB

Petitioners had argued that their constitutionalclaims could not have been heard in the Federal Circuit because the Federal Circuit has itself repeatedly stated that its jurisdiction on appeal fromthe MSPB is coextensive with the jurisdiction of theMSPB which would not have had jurisdiction overPetitionersrsquo claims The majority disagreed reasoningthat the Federal Circuit had never addressed the question of its jurisdiction under these precisecircumstances and had posited that it would berequired to entertain constitutional claims seekingequitable relief under Webster v Doe 486 US 592 (1988) Pet App 14a (citing Riggin v Office of SenateFair Emprsquot Practices 61 F3d 1563 1570 (Fed Cir 1995) and Brockmann v Deprsquot of the Air Force 27 F3d 544 546-47 (Fed Cir 1994)) Even if the FederalCircuit would have held that it lacked jurisdiction toreview Petitionersrsquo constitutional claims the majorityexplained Petitioners could still have soughtadjudication of their claims on certiorari in this CourtId

Judge Stahl disagreed that the district court lackedjurisdiction but would have rejected Petitionersrsquo claimson the merits Id at 15a Judge Stahl sided with the

13

Third Ninth and DC Circuits and held that because the CSRA does not explicitly state that it prohibitsemployees from bringing constitutional challenges forequitable relief in district court it does not precludesuch actions Id at 23a-24a

Judge Stahl disagreed with the majority thatPetitionersrsquo constitutional claims could have been addressed in the Federal Circuit He explained that theFederal Circuitrsquos jurisdiction has never exceeded thescope of the MSPBrsquos jurisdiction on review of appealsfrom the MSPB even when the appellant assertedconstitutional claims beyond the MSPBrsquos jurisdictionId at 21a-22a (citing Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) (unpublished)) Judge Stahlnoted that in Brockmann v Department of the Air Force relied on by the majority the Federal Circuithypothesized about the possibility of reviewingconstitutional claims but did not actually state that itwould or could do so Id (discussing Brockmann 27 F3d at 546-47) Therefore Judge Stahl reasoned thebetter reading of the Federal Circuitrsquos decisions wasthat it would not have had jurisdiction and the CSRAprocess would not have provided any review ofPetitionersrsquo constitutional claims Id at 22a

14

REASONS FOR GRANTING THE WRIT I This Court Should Resolve the Deep and Enduring

Circuit Split on the Question Whether the CivilService Reform Act Impliedly Precludes FederalDistrict Courts From Granting Equitable Relief onthe Constitutional Claims of Federal Employees As the First Circuit acknowledged this case raises

a question on which there is a deep and longstandingcircuit split whether the CSRA impliedly precludesfederal district courts from exercising jurisdiction overthe constitutional claims of federal employees seekinginjunctive relief Id at 12a n4 24a-25a The Third and DC Circuits have held that the CSRA does not preclude district court jurisdiction over equitableconstitutional claims the First Second and Tenth Circuits have held that it does and four other circuits have recognized the split2

A The Circuit Split 1 Two circuitsmdashthe Third and DC Circuitsmdashhave

held that the CSRA does not preclude federal

2See Am Fedrsquon of Govrsquot Emps Local 1 v Stone 502 F3d 1027 1037-39 (9th Cir 2007) (discussing circuit split) Dotson v Griesa 398 F3d 156 179 (2d Cir 2005) cert denied 547 US 1191 (2006)(ldquoThe circuits are divided as to whether equitable relief such asreinstatement is available to federal employees notwithstandingtheir general agreement that the CSRA precludes Bivens claims for damagesrdquo) Hardison v Cohen 375 F3d 1262 1266 (11th Cir2004) (ldquoSeveral of our sister circuits have differed on whetherequitable relief is precluded by the presence of a statutoryremedial schemerdquo) Paige v Cisneros 91 F3d 40 44 (7th Cir 1996) (discussing circuit split) Mitchum v Hurt 73 F3d 30 34 (3d Cir 1995) (discussing circuit split) Bryant v Cheney 924 F2d 525 525 (4th Cir 1991) (discussing ldquotension among the circuitsrdquo)

15

employees from bringing claims for equitable relief forconstitutional injuries in federal district court Athirdmdashthe Ninth Circuitmdashhas expressly agreed withthe Third and DC Circuits and has held that at least in some circumstances federal employees may bringconstitutional claims for equitable relief in district court

In Hubbard v EPA 809 F2d 1 (DC Cir 1986) adetective with the DC Police Department alleged thathe had been denied a position with the EnvironmentalProtection Agency because of statements he made tothe press about an investigation into illegal drug useby members of Congress Under the CSRA Hubbardcould appeal the decisionmdashincluding his constitutionalclaims under the First Amendmentmdashto OPM and file a petition with the Office of Special Counsel Hubbardbrought a Bivens action in district court for damages aswell as a claim for injunctive relief Id at 1 3 8

Relying on this Courtrsquos decision in Bush v Lucas the DC Circuit held that Hubbardrsquos Bivens claim for damages was precluded by the CSRArsquos comprehensiveremedial scheme In Bush this Court rejected a federalemployeersquos Bivens claim for damages because theldquocomprehensive procedural and substantive provisionsrdquoof the CSRA are ldquospecial factors counselling hesitationin the absence of affirmative action by CongressrdquoBush 462 US at 377 (quoting Carlson v Green 446 US 14 18-19 (1980)) However the DC Circuit ruledthat the CSRA did not preclude Hubbardrsquos claim forequitable relief because to eliminate courtsrsquo jurisdictionover equitable relief for constitutional violationsCongress must do so explicitly and the CSRA did notcontain any provision explicitly eliminating federal

16

court jurisdiction The DC Circuit explained thedifference

The courtsrsquo power to impose equitable remediesagainst agencies is broader than its power toimpose legal remedies against individualsBivens actions are a recent judicial creation and as Carlson v Green made clear comparativelyeasy for Congress to preempt The courtsrsquo power to enjoin unconstitutional acts by the government however is inherent in the Constitution itself see Marbury v Madison 5 US (1 Cranch) 137 LEd 60 (1803) AlthoughCongress may limit this power see Ex Parte McCardle 74 US (7 Wall) 506 19 LEd 264(1869) CSRA did not explicitly limit ourjurisdiction to enjoin unconstitutional personnelactions by federal agencies

Hubbard 809 F2d at 11 n15 The Bivens portion of the Hubbard decision was

reheard and affirmed en banc in Spagnola v Mathis 859 F2d 223 (DC Cir 1988) Although the en banccourt did not rehear the question whether the CSRAalso precludes constitutional claims for equitable reliefit made clear that its decision with regard to theBivens claim left the equitable claim intact ldquo[T]imeand again this court has affirmed the right of civil servants to seek equitable relief against their supervisors and the agency itself in vindication oftheir constitutional rightsrdquo Id at 229-30

In Mitchum v Hurt 73 F3d at 36 the Third Circuit joined the DC Circuit in holding that theCSRA did not preclude district court jurisdiction over

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

12

remedy for Petitionersrsquo constitutional claims Id at 13a Though the majority did not dispute that theMSPB was powerless to strike down a statute asunconstitutional the majority reasoned that theFederal Circuit had the authority to do so on appealfrom the MSPB Id at 14a Therefore according to themajority the merits of Petitionersrsquo constitutionalclaims could be aired and decided at the Federal Circuit if not the MSPB

Petitioners had argued that their constitutionalclaims could not have been heard in the Federal Circuit because the Federal Circuit has itself repeatedly stated that its jurisdiction on appeal fromthe MSPB is coextensive with the jurisdiction of theMSPB which would not have had jurisdiction overPetitionersrsquo claims The majority disagreed reasoningthat the Federal Circuit had never addressed the question of its jurisdiction under these precisecircumstances and had posited that it would berequired to entertain constitutional claims seekingequitable relief under Webster v Doe 486 US 592 (1988) Pet App 14a (citing Riggin v Office of SenateFair Emprsquot Practices 61 F3d 1563 1570 (Fed Cir 1995) and Brockmann v Deprsquot of the Air Force 27 F3d 544 546-47 (Fed Cir 1994)) Even if the FederalCircuit would have held that it lacked jurisdiction toreview Petitionersrsquo constitutional claims the majorityexplained Petitioners could still have soughtadjudication of their claims on certiorari in this CourtId

Judge Stahl disagreed that the district court lackedjurisdiction but would have rejected Petitionersrsquo claimson the merits Id at 15a Judge Stahl sided with the

13

Third Ninth and DC Circuits and held that because the CSRA does not explicitly state that it prohibitsemployees from bringing constitutional challenges forequitable relief in district court it does not precludesuch actions Id at 23a-24a

Judge Stahl disagreed with the majority thatPetitionersrsquo constitutional claims could have been addressed in the Federal Circuit He explained that theFederal Circuitrsquos jurisdiction has never exceeded thescope of the MSPBrsquos jurisdiction on review of appealsfrom the MSPB even when the appellant assertedconstitutional claims beyond the MSPBrsquos jurisdictionId at 21a-22a (citing Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) (unpublished)) Judge Stahlnoted that in Brockmann v Department of the Air Force relied on by the majority the Federal Circuithypothesized about the possibility of reviewingconstitutional claims but did not actually state that itwould or could do so Id (discussing Brockmann 27 F3d at 546-47) Therefore Judge Stahl reasoned thebetter reading of the Federal Circuitrsquos decisions wasthat it would not have had jurisdiction and the CSRAprocess would not have provided any review ofPetitionersrsquo constitutional claims Id at 22a

14

REASONS FOR GRANTING THE WRIT I This Court Should Resolve the Deep and Enduring

Circuit Split on the Question Whether the CivilService Reform Act Impliedly Precludes FederalDistrict Courts From Granting Equitable Relief onthe Constitutional Claims of Federal Employees As the First Circuit acknowledged this case raises

a question on which there is a deep and longstandingcircuit split whether the CSRA impliedly precludesfederal district courts from exercising jurisdiction overthe constitutional claims of federal employees seekinginjunctive relief Id at 12a n4 24a-25a The Third and DC Circuits have held that the CSRA does not preclude district court jurisdiction over equitableconstitutional claims the First Second and Tenth Circuits have held that it does and four other circuits have recognized the split2

A The Circuit Split 1 Two circuitsmdashthe Third and DC Circuitsmdashhave

held that the CSRA does not preclude federal

2See Am Fedrsquon of Govrsquot Emps Local 1 v Stone 502 F3d 1027 1037-39 (9th Cir 2007) (discussing circuit split) Dotson v Griesa 398 F3d 156 179 (2d Cir 2005) cert denied 547 US 1191 (2006)(ldquoThe circuits are divided as to whether equitable relief such asreinstatement is available to federal employees notwithstandingtheir general agreement that the CSRA precludes Bivens claims for damagesrdquo) Hardison v Cohen 375 F3d 1262 1266 (11th Cir2004) (ldquoSeveral of our sister circuits have differed on whetherequitable relief is precluded by the presence of a statutoryremedial schemerdquo) Paige v Cisneros 91 F3d 40 44 (7th Cir 1996) (discussing circuit split) Mitchum v Hurt 73 F3d 30 34 (3d Cir 1995) (discussing circuit split) Bryant v Cheney 924 F2d 525 525 (4th Cir 1991) (discussing ldquotension among the circuitsrdquo)

15

employees from bringing claims for equitable relief forconstitutional injuries in federal district court Athirdmdashthe Ninth Circuitmdashhas expressly agreed withthe Third and DC Circuits and has held that at least in some circumstances federal employees may bringconstitutional claims for equitable relief in district court

In Hubbard v EPA 809 F2d 1 (DC Cir 1986) adetective with the DC Police Department alleged thathe had been denied a position with the EnvironmentalProtection Agency because of statements he made tothe press about an investigation into illegal drug useby members of Congress Under the CSRA Hubbardcould appeal the decisionmdashincluding his constitutionalclaims under the First Amendmentmdashto OPM and file a petition with the Office of Special Counsel Hubbardbrought a Bivens action in district court for damages aswell as a claim for injunctive relief Id at 1 3 8

Relying on this Courtrsquos decision in Bush v Lucas the DC Circuit held that Hubbardrsquos Bivens claim for damages was precluded by the CSRArsquos comprehensiveremedial scheme In Bush this Court rejected a federalemployeersquos Bivens claim for damages because theldquocomprehensive procedural and substantive provisionsrdquoof the CSRA are ldquospecial factors counselling hesitationin the absence of affirmative action by CongressrdquoBush 462 US at 377 (quoting Carlson v Green 446 US 14 18-19 (1980)) However the DC Circuit ruledthat the CSRA did not preclude Hubbardrsquos claim forequitable relief because to eliminate courtsrsquo jurisdictionover equitable relief for constitutional violationsCongress must do so explicitly and the CSRA did notcontain any provision explicitly eliminating federal

16

court jurisdiction The DC Circuit explained thedifference

The courtsrsquo power to impose equitable remediesagainst agencies is broader than its power toimpose legal remedies against individualsBivens actions are a recent judicial creation and as Carlson v Green made clear comparativelyeasy for Congress to preempt The courtsrsquo power to enjoin unconstitutional acts by the government however is inherent in the Constitution itself see Marbury v Madison 5 US (1 Cranch) 137 LEd 60 (1803) AlthoughCongress may limit this power see Ex Parte McCardle 74 US (7 Wall) 506 19 LEd 264(1869) CSRA did not explicitly limit ourjurisdiction to enjoin unconstitutional personnelactions by federal agencies

Hubbard 809 F2d at 11 n15 The Bivens portion of the Hubbard decision was

reheard and affirmed en banc in Spagnola v Mathis 859 F2d 223 (DC Cir 1988) Although the en banccourt did not rehear the question whether the CSRAalso precludes constitutional claims for equitable reliefit made clear that its decision with regard to theBivens claim left the equitable claim intact ldquo[T]imeand again this court has affirmed the right of civil servants to seek equitable relief against their supervisors and the agency itself in vindication oftheir constitutional rightsrdquo Id at 229-30

In Mitchum v Hurt 73 F3d at 36 the Third Circuit joined the DC Circuit in holding that theCSRA did not preclude district court jurisdiction over

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

13

Third Ninth and DC Circuits and held that because the CSRA does not explicitly state that it prohibitsemployees from bringing constitutional challenges forequitable relief in district court it does not precludesuch actions Id at 23a-24a

Judge Stahl disagreed with the majority thatPetitionersrsquo constitutional claims could have been addressed in the Federal Circuit He explained that theFederal Circuitrsquos jurisdiction has never exceeded thescope of the MSPBrsquos jurisdiction on review of appealsfrom the MSPB even when the appellant assertedconstitutional claims beyond the MSPBrsquos jurisdictionId at 21a-22a (citing Hubbard v MSPB 319 Fed Apprsquox 192 (Fed Cir 2009) (unpublished)) Judge Stahlnoted that in Brockmann v Department of the Air Force relied on by the majority the Federal Circuithypothesized about the possibility of reviewingconstitutional claims but did not actually state that itwould or could do so Id (discussing Brockmann 27 F3d at 546-47) Therefore Judge Stahl reasoned thebetter reading of the Federal Circuitrsquos decisions wasthat it would not have had jurisdiction and the CSRAprocess would not have provided any review ofPetitionersrsquo constitutional claims Id at 22a

14

REASONS FOR GRANTING THE WRIT I This Court Should Resolve the Deep and Enduring

Circuit Split on the Question Whether the CivilService Reform Act Impliedly Precludes FederalDistrict Courts From Granting Equitable Relief onthe Constitutional Claims of Federal Employees As the First Circuit acknowledged this case raises

a question on which there is a deep and longstandingcircuit split whether the CSRA impliedly precludesfederal district courts from exercising jurisdiction overthe constitutional claims of federal employees seekinginjunctive relief Id at 12a n4 24a-25a The Third and DC Circuits have held that the CSRA does not preclude district court jurisdiction over equitableconstitutional claims the First Second and Tenth Circuits have held that it does and four other circuits have recognized the split2

A The Circuit Split 1 Two circuitsmdashthe Third and DC Circuitsmdashhave

held that the CSRA does not preclude federal

2See Am Fedrsquon of Govrsquot Emps Local 1 v Stone 502 F3d 1027 1037-39 (9th Cir 2007) (discussing circuit split) Dotson v Griesa 398 F3d 156 179 (2d Cir 2005) cert denied 547 US 1191 (2006)(ldquoThe circuits are divided as to whether equitable relief such asreinstatement is available to federal employees notwithstandingtheir general agreement that the CSRA precludes Bivens claims for damagesrdquo) Hardison v Cohen 375 F3d 1262 1266 (11th Cir2004) (ldquoSeveral of our sister circuits have differed on whetherequitable relief is precluded by the presence of a statutoryremedial schemerdquo) Paige v Cisneros 91 F3d 40 44 (7th Cir 1996) (discussing circuit split) Mitchum v Hurt 73 F3d 30 34 (3d Cir 1995) (discussing circuit split) Bryant v Cheney 924 F2d 525 525 (4th Cir 1991) (discussing ldquotension among the circuitsrdquo)

15

employees from bringing claims for equitable relief forconstitutional injuries in federal district court Athirdmdashthe Ninth Circuitmdashhas expressly agreed withthe Third and DC Circuits and has held that at least in some circumstances federal employees may bringconstitutional claims for equitable relief in district court

In Hubbard v EPA 809 F2d 1 (DC Cir 1986) adetective with the DC Police Department alleged thathe had been denied a position with the EnvironmentalProtection Agency because of statements he made tothe press about an investigation into illegal drug useby members of Congress Under the CSRA Hubbardcould appeal the decisionmdashincluding his constitutionalclaims under the First Amendmentmdashto OPM and file a petition with the Office of Special Counsel Hubbardbrought a Bivens action in district court for damages aswell as a claim for injunctive relief Id at 1 3 8

Relying on this Courtrsquos decision in Bush v Lucas the DC Circuit held that Hubbardrsquos Bivens claim for damages was precluded by the CSRArsquos comprehensiveremedial scheme In Bush this Court rejected a federalemployeersquos Bivens claim for damages because theldquocomprehensive procedural and substantive provisionsrdquoof the CSRA are ldquospecial factors counselling hesitationin the absence of affirmative action by CongressrdquoBush 462 US at 377 (quoting Carlson v Green 446 US 14 18-19 (1980)) However the DC Circuit ruledthat the CSRA did not preclude Hubbardrsquos claim forequitable relief because to eliminate courtsrsquo jurisdictionover equitable relief for constitutional violationsCongress must do so explicitly and the CSRA did notcontain any provision explicitly eliminating federal

16

court jurisdiction The DC Circuit explained thedifference

The courtsrsquo power to impose equitable remediesagainst agencies is broader than its power toimpose legal remedies against individualsBivens actions are a recent judicial creation and as Carlson v Green made clear comparativelyeasy for Congress to preempt The courtsrsquo power to enjoin unconstitutional acts by the government however is inherent in the Constitution itself see Marbury v Madison 5 US (1 Cranch) 137 LEd 60 (1803) AlthoughCongress may limit this power see Ex Parte McCardle 74 US (7 Wall) 506 19 LEd 264(1869) CSRA did not explicitly limit ourjurisdiction to enjoin unconstitutional personnelactions by federal agencies

Hubbard 809 F2d at 11 n15 The Bivens portion of the Hubbard decision was

reheard and affirmed en banc in Spagnola v Mathis 859 F2d 223 (DC Cir 1988) Although the en banccourt did not rehear the question whether the CSRAalso precludes constitutional claims for equitable reliefit made clear that its decision with regard to theBivens claim left the equitable claim intact ldquo[T]imeand again this court has affirmed the right of civil servants to seek equitable relief against their supervisors and the agency itself in vindication oftheir constitutional rightsrdquo Id at 229-30

In Mitchum v Hurt 73 F3d at 36 the Third Circuit joined the DC Circuit in holding that theCSRA did not preclude district court jurisdiction over

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

14

REASONS FOR GRANTING THE WRIT I This Court Should Resolve the Deep and Enduring

Circuit Split on the Question Whether the CivilService Reform Act Impliedly Precludes FederalDistrict Courts From Granting Equitable Relief onthe Constitutional Claims of Federal Employees As the First Circuit acknowledged this case raises

a question on which there is a deep and longstandingcircuit split whether the CSRA impliedly precludesfederal district courts from exercising jurisdiction overthe constitutional claims of federal employees seekinginjunctive relief Id at 12a n4 24a-25a The Third and DC Circuits have held that the CSRA does not preclude district court jurisdiction over equitableconstitutional claims the First Second and Tenth Circuits have held that it does and four other circuits have recognized the split2

A The Circuit Split 1 Two circuitsmdashthe Third and DC Circuitsmdashhave

held that the CSRA does not preclude federal

2See Am Fedrsquon of Govrsquot Emps Local 1 v Stone 502 F3d 1027 1037-39 (9th Cir 2007) (discussing circuit split) Dotson v Griesa 398 F3d 156 179 (2d Cir 2005) cert denied 547 US 1191 (2006)(ldquoThe circuits are divided as to whether equitable relief such asreinstatement is available to federal employees notwithstandingtheir general agreement that the CSRA precludes Bivens claims for damagesrdquo) Hardison v Cohen 375 F3d 1262 1266 (11th Cir2004) (ldquoSeveral of our sister circuits have differed on whetherequitable relief is precluded by the presence of a statutoryremedial schemerdquo) Paige v Cisneros 91 F3d 40 44 (7th Cir 1996) (discussing circuit split) Mitchum v Hurt 73 F3d 30 34 (3d Cir 1995) (discussing circuit split) Bryant v Cheney 924 F2d 525 525 (4th Cir 1991) (discussing ldquotension among the circuitsrdquo)

15

employees from bringing claims for equitable relief forconstitutional injuries in federal district court Athirdmdashthe Ninth Circuitmdashhas expressly agreed withthe Third and DC Circuits and has held that at least in some circumstances federal employees may bringconstitutional claims for equitable relief in district court

In Hubbard v EPA 809 F2d 1 (DC Cir 1986) adetective with the DC Police Department alleged thathe had been denied a position with the EnvironmentalProtection Agency because of statements he made tothe press about an investigation into illegal drug useby members of Congress Under the CSRA Hubbardcould appeal the decisionmdashincluding his constitutionalclaims under the First Amendmentmdashto OPM and file a petition with the Office of Special Counsel Hubbardbrought a Bivens action in district court for damages aswell as a claim for injunctive relief Id at 1 3 8

Relying on this Courtrsquos decision in Bush v Lucas the DC Circuit held that Hubbardrsquos Bivens claim for damages was precluded by the CSRArsquos comprehensiveremedial scheme In Bush this Court rejected a federalemployeersquos Bivens claim for damages because theldquocomprehensive procedural and substantive provisionsrdquoof the CSRA are ldquospecial factors counselling hesitationin the absence of affirmative action by CongressrdquoBush 462 US at 377 (quoting Carlson v Green 446 US 14 18-19 (1980)) However the DC Circuit ruledthat the CSRA did not preclude Hubbardrsquos claim forequitable relief because to eliminate courtsrsquo jurisdictionover equitable relief for constitutional violationsCongress must do so explicitly and the CSRA did notcontain any provision explicitly eliminating federal

16

court jurisdiction The DC Circuit explained thedifference

The courtsrsquo power to impose equitable remediesagainst agencies is broader than its power toimpose legal remedies against individualsBivens actions are a recent judicial creation and as Carlson v Green made clear comparativelyeasy for Congress to preempt The courtsrsquo power to enjoin unconstitutional acts by the government however is inherent in the Constitution itself see Marbury v Madison 5 US (1 Cranch) 137 LEd 60 (1803) AlthoughCongress may limit this power see Ex Parte McCardle 74 US (7 Wall) 506 19 LEd 264(1869) CSRA did not explicitly limit ourjurisdiction to enjoin unconstitutional personnelactions by federal agencies

Hubbard 809 F2d at 11 n15 The Bivens portion of the Hubbard decision was

reheard and affirmed en banc in Spagnola v Mathis 859 F2d 223 (DC Cir 1988) Although the en banccourt did not rehear the question whether the CSRAalso precludes constitutional claims for equitable reliefit made clear that its decision with regard to theBivens claim left the equitable claim intact ldquo[T]imeand again this court has affirmed the right of civil servants to seek equitable relief against their supervisors and the agency itself in vindication oftheir constitutional rightsrdquo Id at 229-30

In Mitchum v Hurt 73 F3d at 36 the Third Circuit joined the DC Circuit in holding that theCSRA did not preclude district court jurisdiction over

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

15

employees from bringing claims for equitable relief forconstitutional injuries in federal district court Athirdmdashthe Ninth Circuitmdashhas expressly agreed withthe Third and DC Circuits and has held that at least in some circumstances federal employees may bringconstitutional claims for equitable relief in district court

In Hubbard v EPA 809 F2d 1 (DC Cir 1986) adetective with the DC Police Department alleged thathe had been denied a position with the EnvironmentalProtection Agency because of statements he made tothe press about an investigation into illegal drug useby members of Congress Under the CSRA Hubbardcould appeal the decisionmdashincluding his constitutionalclaims under the First Amendmentmdashto OPM and file a petition with the Office of Special Counsel Hubbardbrought a Bivens action in district court for damages aswell as a claim for injunctive relief Id at 1 3 8

Relying on this Courtrsquos decision in Bush v Lucas the DC Circuit held that Hubbardrsquos Bivens claim for damages was precluded by the CSRArsquos comprehensiveremedial scheme In Bush this Court rejected a federalemployeersquos Bivens claim for damages because theldquocomprehensive procedural and substantive provisionsrdquoof the CSRA are ldquospecial factors counselling hesitationin the absence of affirmative action by CongressrdquoBush 462 US at 377 (quoting Carlson v Green 446 US 14 18-19 (1980)) However the DC Circuit ruledthat the CSRA did not preclude Hubbardrsquos claim forequitable relief because to eliminate courtsrsquo jurisdictionover equitable relief for constitutional violationsCongress must do so explicitly and the CSRA did notcontain any provision explicitly eliminating federal

16

court jurisdiction The DC Circuit explained thedifference

The courtsrsquo power to impose equitable remediesagainst agencies is broader than its power toimpose legal remedies against individualsBivens actions are a recent judicial creation and as Carlson v Green made clear comparativelyeasy for Congress to preempt The courtsrsquo power to enjoin unconstitutional acts by the government however is inherent in the Constitution itself see Marbury v Madison 5 US (1 Cranch) 137 LEd 60 (1803) AlthoughCongress may limit this power see Ex Parte McCardle 74 US (7 Wall) 506 19 LEd 264(1869) CSRA did not explicitly limit ourjurisdiction to enjoin unconstitutional personnelactions by federal agencies

Hubbard 809 F2d at 11 n15 The Bivens portion of the Hubbard decision was

reheard and affirmed en banc in Spagnola v Mathis 859 F2d 223 (DC Cir 1988) Although the en banccourt did not rehear the question whether the CSRAalso precludes constitutional claims for equitable reliefit made clear that its decision with regard to theBivens claim left the equitable claim intact ldquo[T]imeand again this court has affirmed the right of civil servants to seek equitable relief against their supervisors and the agency itself in vindication oftheir constitutional rightsrdquo Id at 229-30

In Mitchum v Hurt 73 F3d at 36 the Third Circuit joined the DC Circuit in holding that theCSRA did not preclude district court jurisdiction over

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

16

court jurisdiction The DC Circuit explained thedifference

The courtsrsquo power to impose equitable remediesagainst agencies is broader than its power toimpose legal remedies against individualsBivens actions are a recent judicial creation and as Carlson v Green made clear comparativelyeasy for Congress to preempt The courtsrsquo power to enjoin unconstitutional acts by the government however is inherent in the Constitution itself see Marbury v Madison 5 US (1 Cranch) 137 LEd 60 (1803) AlthoughCongress may limit this power see Ex Parte McCardle 74 US (7 Wall) 506 19 LEd 264(1869) CSRA did not explicitly limit ourjurisdiction to enjoin unconstitutional personnelactions by federal agencies

Hubbard 809 F2d at 11 n15 The Bivens portion of the Hubbard decision was

reheard and affirmed en banc in Spagnola v Mathis 859 F2d 223 (DC Cir 1988) Although the en banccourt did not rehear the question whether the CSRAalso precludes constitutional claims for equitable reliefit made clear that its decision with regard to theBivens claim left the equitable claim intact ldquo[T]imeand again this court has affirmed the right of civil servants to seek equitable relief against their supervisors and the agency itself in vindication oftheir constitutional rightsrdquo Id at 229-30

In Mitchum v Hurt 73 F3d at 36 the Third Circuit joined the DC Circuit in holding that theCSRA did not preclude district court jurisdiction over

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

17

constitutional claims for equitable relief There theplaintiffs were three current or former employees ofthe Pittsburgh Veterans Administration MedicalCenter who alleged that they were retaliated againstfor criticizing the level of patient care at the facilityThose employees had varying access to administrativeremedies under the CSRA including appeals to theMSPB and Federal Circuit The employees sued indistrict court for declaratory and injunctive reliefalleging that their First Amendment rights had beenviolated Id at 31-33

The Third Circuit followed the rationale of the DC Circuit explaining that ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo Id at 35 (citingOsborn v Bank of the United States 22 US (9Wheat) 738 838-39 859 (1824) and Ex Parte Young 209 US 123 156 (1908)) The court reasoned thatwhen Congress legislated it did so against thebackdrop of the judicial power to grant such relief andcourts ldquoshould be very hesitant before concluding thatCongress has impliedly imposed such a restriction onthe authority to award injunctive relief to vindicateconstitutional rightsrdquo Id Because Congress did notexplicitly restrict equitable constitutional relief in theCSRA the CSRA did not preclude such relief Id at 36

In American Federation of Government EmployeesLocal 1 v Stone the Ninth Circuit addressed the question whether an airport security screener couldbring a claim for equitable relief in federal districtcourt based on the violation of his First Amendment rights to engage in union activities 502 F3d 1027Because airport security screenersrsquo employment is

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

18

governed solely by the Aviation and TransportationSecurity Act (ATSA) and screeners are not entitled toany remedies under the CSRA Stone presented aslightly different question from those in Hubbard and Mitchum See id at 1030-31 1035-36 Rather as the Ninth Circuit explained Stone was very similar toWebster v Doe 486 US 592 in which this Court held that a discharged CIA employee could bring aconstitutional claim for equitable relief in district courtbecause the statute governing the CIA contained noexplicit prohibition against bringing constitutionalclaims As in Stone the employee in Webster was not entitled to any CSRA remedies and served at theunfettered discretion of the agency Unlike in Webster however in Stone the Government argued in thedistrict court that the CSRA as the comprehensive andexclusive remedial scheme for federal employeesprecluded the screener from bringing a constitutionalclaim for equitable relief in district court The districtcourt agreed holding that the screenerrsquos claim wasprecluded by the CSRA Stone 502 F3d at 1031

On appeal the Ninth Circuit stated that whetherthe CSRA precluded district court review of constitutional claims where the employee has no otherremedy was an open question in the circuit Id at 1034 (quoting Stanley v Gonzales 476 F3d 653 657 (9thCir 2007)) In reversing the district court the NinthCircuit expressly agreed with the reasoning ofHubbard and Mitchum and held ldquothat the statutoryscheme governing [the screenerrsquos] employment does not

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

19

clearly state an intention on the part of Congress topreclude judicial reviewrdquo Id at 10393

2 In this case the First Circuit majority joined theSecond and Tenth Circuits in holding that the CSRAimpliedly precludes district courts from exercisingjurisdiction over federal employeesrsquo constitutionalclaims for equitable relief

In Lombardi v Small Business Administration a Presidential Management Intern at the Small BusinessAdministration sued in district court alleging that hisconstitutional rights were violated when he wasterminated from his position 889 F2d 959 960 (10thCir 1989) After finding that the district court lackedjurisdiction over Lombardirsquos Bivens claim for damagesthe Tenth Circuit also rejected Lombardirsquos argumentthat the district court had jurisdiction over his claimfor injunctive relief reasoning that claims for damagesand equitable relief were equally precluded by theCSRArsquos comprehensive remedial scheme Id at 960-62

3Stanley explicitly avoided resolving the question whether theCSRA precludes district court review of equitable constitutionalclaims when the employee has no other remedy affirming thedistrict courtrsquos dismissal because the plaintiffrsquos constitutionalclaims were not colorable 476 F3d at 655 An earlier Ninth Circuit case Saul v United States 928 F2d 829 (9th Cir 1991)which denied a plaintiff leave to amend his complaint to add aclaim for injunctive relief is sometimes cited for the propositionthat the rule in the Ninth Circuit is that the CSRA does precludedistrict court jurisdiction over constitutional claims See eg Mitchum 73 F3d at 34 However Stone both explicitly endorsedthe reasoning in Hubbard and Mitchum and questioned therationale in Saul because Saul failed to mention this Courtrsquos decision in Webster Stone 502 F3d at 1037-38

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

20

In Dotson v Griesa the Second Circuit acknowledged a circuit split on the question whetherthe CSRA precludes district court jurisdiction overfederal employeesrsquo constitutional claims for equitablerelief 398 F3d at 179-80 There the plaintiff wasterminated from his position as a probation officer forthe Southern District of New York He soughtmonetary and equitable relief on his claim that hisconstitutional rights to equal protection and dueprocess had been violated Id at 159 The CSRA does not provide remedies for employees of the judicialbranch but the judiciary has its own administrativeappeals process Id at 160 The Second Circuit held that like other federal employees judicial branchemployees may not bring Bivens actions because of the comprehensive nature of the CSRA Id at 176 The Second Circuit also found that because Congress hadldquoplainly expressed its intentrdquo that the CSRA be theldquocomprehensive scheme addressing the employmentrights of federal employeesrdquo Dotsonrsquos claims forequitable relief were also precluded by the CSRA Id at 1824

3 In addition the Fourth Seventh and Eleventh Circuits have recognized the circuit split see supranote 2 but avoided deciding the question The Fourth

4The Eighth Circuit has also held that the district court lacksjurisdiction over constitutional claims by federal employees forboth monetary and injunctive relief at least when there areremedies for the constitutional claims available under the CSRA Carter v Kurzejeski 706 F2d 835 (8th Cir 1983) However theEighth Circuit did not address the question of equitable reliefseparately from the question of damages and Carter predated thisCourtrsquos decisions in Bush and Webster Id

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

21

Circuit noted the ldquoweight and difficulty of the issuerdquobut disposed of the case by finding that the plaintifflacked standing to seek the requested injunctive reliefBryant 924 F2d at 528-29 The Seventh and Eleventh Circuits skipped the ldquodifficultrdquo jurisdictional questionand determined that the plaintiffsrsquo constitutionalclaims failed on the merits Paige 91 F3d at 44-45 Hardison 375 F3d at 1268

Thus of the circuits to have considered the questionwhether the CSRA precludes district court jurisdictionof federal employeesrsquo constitutional claims for equitablerelief two have held that there is jurisdiction in thedistrict court three have held that there is not and three have deliberately left the question open

B This Courtrsquos Intervention Is Needed to Resolve the Split

Because of this conflict in the circuits federal employees who file suit in the Third and DC Circuitscan be awarded injunctive relief for constitutionalviolations while those in the First Second and Tenth cannot For example if this suit had been brought inthe District of Columbia where Petitioner Tucker lives rather than in Massachusetts where Petitioner Elginlives Petitioners would by accident of geography beable to pursue their claims in district court Thisinequitable treatment of federal employees is disruptive to employees and their managers whoserights and remedies should not turn on the circuit inwhich they live

Moreover this issue will not be resolved without this Courtrsquos intervention The circuits have been splitfor more than twenty years and there is no movement

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

22

toward a consensus view A number of circuits are at a loss as to how to resolve the issue and are deciding themerits of the plaintiffsrsquo claims rather than thejurisdictional questionmdashan approach at odds with thisCourtrsquos holding in Steel Co v Citizens for a Better Environment 523 US 83 89 (1998) that jurisdictional questions be determined first See Paige 91 F3d at 44-45 Hardison 375 F3d at 1268 Even circuits that have come to a conclusion as to whether the CSRA precludes equitable claims in the districthave acknowledged that there are colorable argumentson both sides of the issue See Dotson 398 F3d at 180 Mitchum 73 F3d at 34 see also Pet App 15a (StahlJ concurring) (recognizing that the majority reacheda ldquoreasoned conclusionrdquo)

Several circuits have also discussed the difficulty innavigating this Courtrsquos decisions in Bush and Webster and have called on this Court to clarify thoseprecedents See Mitchum 73 F3d at 34 (ldquoWithoutmore specific guidance from the Supreme Court we do not think that [precluding equitable relief for constitutional claims] is a jump that we shouldmakerdquo) Commenting on the ldquoweight and difficulty ofthe issuerdquo the Fourth Circuit noted that ldquo[r]esolutionof this issue is made more difficult by a distinction theSupreme Court seems to have drawn between Bivens actions for damages and equitable claims for injunctiveor declaratory reliefrdquo Bryant 924 F2d at 528 528 n2

The confusion caused by the split among thecircuits is compounded by the Governmentrsquos inconsistent position as to whether the federal courtshave jurisdiction over constitutional claims for equitable relief For example as noted earlier in this

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

23

case the Government argued that the CSRA precludedfederal court jurisdiction but not until Petitionerssucceeded on their Bill of Attainder claim Pet App41a-42a In contrast in Whitman v Department ofTransportation 547 US 512 (2006) the Governmentconceded that the CSRArsquos text was not clear enough toforeclose judicial review of an employeersquos federalconstitutional claims Stone 502 F3d at 1034 (discussing the Governmentrsquos position in Whitman) see Brief for Respondents at 47 Whitman v Deprsquot ofTransp 547 US 512 (2006) (No 04-1131) 2005 WL2738321 (ldquoThe language of the CSRA does not appearto meet the ldquoheightened showingrdquo Webster 486 US at 603 required to foreclose judicial review of constitutional claimsrdquo) In Stone the Government argued in the district court that the CSRA precludeddistrict court jurisdiction but reversed its position inthe court of appeals 502 F3d at 1034

In short whether the CSRA precludes federal courtjurisdiction of constitutional claims for equitable reliefis a difficult question that has divided the circuits andshould be answered by this Court II The Federal District Court Has Jurisdiction Over

Petitionersrsquo Constitutional Claims for EquitableRelief Certiorari is also warranted because the First

Circuitrsquos decision was wrong on the merits in severalways First Courts should not construe statutes topreclude injunctive relief for constitutional claimsabsent a clear statement by Congress that it intendedto do so Second the First Circuit was wrong toconclude that the CSRArsquos procedures provide an

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

24

avenue for judicial review of Petitionersrsquo constitutionalclaims

A The CSRA Does Not Preclude Federal District Court Jurisdiction Over Constitutional Claims for Equitable Relief

This Court has held that ldquowhere Congress intendsto preclude judicial review of constitutional claims itsintent to do so must be clearrdquo Webster 486 US at 603 (citing Johnson v Robison 415 US 361 373-74 (1974)) It is undisputed that the CSRA does notexpressly preclude judicial review of constitutionalclaims Therefore it does not preclude original federaldistrict court jurisdiction over federal employeesrsquoconstitutional claims for equitable relief and the FirstCircuitrsquos holding that the CSRA impliedly precludesconstitutional claims is contrary to Webster

The First Second and Tenth Circuits in holdingthat the CSRA precludes judicial review over equitableconstitutional claims have ignored Webster and instead relied on this Courtrsquos decisions in Bush v Lucas and United States v Faustomdashboth of which predate Webstermdashand Schweiker v Chilicky which was decided within days of Webster Bush Fausto and Chilicky however are inapposite To start Fausto held only that the CSRArsquos comprehensive scheme precludednon-CSRA statutory remedies under the Back Pay Act484 US at 455 Thus Fausto has no bearing onwhether the CSRA precludes claims for constitutional violations and as Webster holds for a statute to foreclose constitutional claims there must be a ldquoheightened showingrdquo that Congress intended to do so486 US at 603

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

25

Bush held that an employeersquos Bivens claim for money damages was precluded by the CSRArsquoscomprehensive remedial scheme 462 US at 390However Bush does not support the conclusion thatclaims for equitable relief are also precluded See Mitchum 73 F3d at 36 First Bivens actions can be defeated either when Congress has foreclosed them orwhen there are ldquospecial factors counselling hesitationrdquoin extending Bivens remedies into new contexts Bush 462 US at 378 A comprehensive remedial schemethat forecloses particular remediesmdashsuch as the availability of money damagesmdashis a special factorcounseling hesitation Schweiker v Chilicky 487 US 412 423 (1988) see also Chappell v Wallace 462 US 296 304 (1983) Thus Bush did not hold that anyprovision in the CSRA precluded constitutional claimsindeed Bush acknowledged that the CSRA does notexpressly deny employees judicial remedies 462 USat 378 Rather Bush held that the comprehensivescheme was a special factor counseling hesitation inextending the availability of damages claims a factorthat matters in the Bivens context but not in the context of claims for equitable relief See id at 377-78 388 390 Chilicky reached the same conclusion with regard to Bivens actions in the context of Social Security disability claims and like Bush does not control whether equitable remedies are available See Chilicky 487 US at 414 425

Second this Court has long recognized thedistinction between legal relief and equitable relief forconstitutional claims and there is an established tradition of federal courts awarding equitable relief toredress constitutional injuries See eg Carlson 446

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

26

US at 42 (Rehnquist J dissenting) (ldquoThe broadpower of federal courts to grant equitable relief forconstitutional violations has long been establishedrdquo)Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) (There isa ldquopresumed availability of federal equitable reliefagainst threatened invasions of constitutional interestsrdquo) Bell v Hood 327 US 678 684 (1946) (ldquo[I]tis established practice for this Court to sustain thejurisdiction of federal courts to issue injunctions toprotect rights safeguarded by the Constitutionrdquo) Ex Parte Young 209 US 123 United States v Lee 106 US 196 (1882) Osborn 22 US (9 Wheat) at 868 see also Hubbard 809 F2d at 11 n15 (ldquoThe courtrsquos powerto enjoin unconstitutional acts by the governmenthowever is inherent in the Constitution itselfrdquo) (citingMarbury 5 US (1 Cranch) 137)

Indeed in Whitman this Court highlighted that thefederal courts presumptively have jurisdiction overconstitutional claims under 28 USC sect 1331 547 USat 513-14 Whitman explained that the question is notwhether the CSRA provides for federal court jurisdiction over constitutional claims but rather whether it precludes the jurisdiction that the courtsalready have Id

Because it is well established that equitable reliefis available for constitutional claims in federal court and neither the CSRA nor the Bush line of cases precludes that remedy the federal courts havejurisdiction over federal employeesrsquo constitutionalclaims for equitable relief The First Circuitrsquos error isanother reason to grant review

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

27

B Petitioners Have No Remedies for Their Constitutional Claims Under the CSRA

After holding that the CSRA precludes originalfederal court jurisdiction over Petitionersrsquo constitutional claims for equitable relief the FirstCircuit recognized that denying Petitioners anyremedy for their constitutional injuries would beproblematic Pet App 13a The First Circuit did notdiscuss this Courtrsquos decision in Webster but reflected its sentiment ldquoa lsquoserious constitutional questionrsquo wouldarise if a federal statute were construed to deny anyjudicial forum for a colorable constitutional claimrdquoWebster 486 US at 603 (quoting Bowen v Mich Academy of Family Physicians 476 US 667 681 n12 (1986)) Thus to avoid that serious constitutional dilemma the First Circuit found that Petitionersrsquo injuries could be remedied under the proceduresprovided by the CSRA

First the First Circuit decided that the MSPB did have jurisdiction to review Petitionersrsquo terminationseven though the MSPB has consistently held includingin Elginrsquos case that it lacks jurisdiction to review 5USC sect 3328 terminations of men who failed toregister with the Selective Service Pet App 9a see cases cited infra note 5 The MSPBrsquos jurisdiction is notplenary its jurisdiction is limited to what is conferredby statute rule or regulation Maddox v Merit SysProt Bd 759 F2d 9 10 (Fed Cir 1985) The FirstCircuit reasoned that the CSRA provided for MSPBjurisdiction over Petitionersrsquo appeals in 5 USCsect 7513(a) and (d) which state that those adverseactions such as terminations taken to ldquopromote the

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

28

efficiency of the servicerdquo may be appealed to the MSPBPet App 9a

When Petitioner Elgin appealed his terminationunder sect 3328 to the MSPB the Government arguedthat the MSPB did not have jurisdiction to review hisremoval and the MSPB agreed dismissing Elginrsquosappeal Id at 100a-01a The MSPB reasoned that once OPM makes its final unreviewable determination that an individual is ineligible for federal employmentunder sect 3328 sect 3328 is an absolute statutory bar toemployment and the MSPB lacks jurisdiction toreview terminations made under absolute statutorybars Id see 5 CFR sect 300706(c) (OPMrsquos decision isadministratively unreviewable) Because those employees were never eligible for employment in thefirst place the MSPB maintained they are notafforded the procedural protections of the CSRAincluding appeal to the MSPB Pet App 98a (citingTravaglini v Deprsquot of Ed 18 MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984)) see also Daneshpayeh v Deprsquot of theAir Force No 93-3476 1994 WL 18964 (Fed Cir Jan26 1994) (unpublished) (affirming MSPB dismissal forlack of jurisdiction when there was an absolutestatutory bar to employeersquos federal employment)Indeed under this reasoning and at the persistenturging of the Government the MSPB has consistentlyand uniformly dismissed appeals from sect 3328 removalsfor lack of jurisdiction5

5Eg Charner v OPM No PH-3443-08-0601-I-2 2009 MSPB LEXIS 1296 at 10-11 (MSPB Mar 6 2009)

(continued)

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

29

After Elginrsquos appeal to the MSPB was dismissedElgin filed this suit in district court where in itsmotion for reconsideration the Government reversed its position arguing that the MSPB did have jurisdiction to review Petitionersrsquo terminations underits ldquoefficiency of the servicerdquo theory Pet App 41a-42a46a The district court rejected the Governmentrsquosargument reasoning that nothing about Petitionersrsquoterminations indicated they were for the ldquoefficiency ofthe servicerdquo and in addition OPMrsquos regulations statethat after it has made its final determination that an employeersquos failure to register was knowing and willfulldquo[t]here is no further right to administrative reviewrdquo5 CFR sect 300706(c) Pet App 46a-47a As notedabove however the First Circuit reversed the district court and held that the MSPB does have jurisdiction toreview appeals of men terminated for failing to registerwith the Selective Service

As a practical matter it is irrelevant to the MSPBwhat the First Circuit has said about its jurisdictionThe Federal Circuit not the First Circuit has appellate review over the MSPB 28 USC sect 1295(a)(9) Thus the MSPB will continue to dismiss

5(continued)(unpublished) Whitfield v Deprsquot of the Interior No DC-0752-09-0094-I-1 2008 MSPB LEXIS 6910 at 1 4 7 (MSPB Dec23 2008) (unpublished) (characterizing employeersquos claims ofMSPB jurisdiction as frivolous) Rivera v Deprsquot of VeteransAffairs No NY-0752-08-0137-I-1 2008 MSPB LEXIS 2056 at 7 (MSPB Mar 31 2008) (unpublished) Clarke v OPM No DA-3443-07-0538-I-1 2007 MSPB LEXIS 7101 at 1 n1 7 (MSPB Dec 17 2007) (unpublished) (characterizing employeersquos claims of MSPB jurisdiction as frivolous)

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

30

appeals of sect 3328 terminations leaving formeremployees like Petitioners caught in a catch-22 TheMSPB will dismiss their administrative appeals forlack of MSPB jurisdiction and the district courts in theFirst Circuit (and in the Second and Tenth Circuits aswell) will dismiss their judicial complaints for lack ofdistrict court jurisdiction in part on the premise thattheir claims ought to have been brought before theMSPB Petitioners do not believe that this Court would need to reach the issue whether the MSPB has jurisdiction to hear constitutional claims because thedistrict courts have jurisdiction to hear those claims inany event But the continuing controversy over theMSPBrsquos jurisdiction and the Governmentrsquos inconsistentposition on the issue demonstrates that this Courtrsquosguidance is needed to ensure that federal employeesrsquoconstitutional claims can be addressed in some forum

Though the First Circuit held that the MSPB didhave jurisdiction over Petitionersrsquo constitutional claims it acknowledged that the Petitionersrsquo specificconstitutional claims could not be considered by theMSPB because the MSPB lacks the power to declareacts of Congress such as sect 3328 unconstitutional PetApp 13a 101a see also Johnson 415 US at 368 Brooks v Office of Pers Mgmt 59 MSPR 207 215 (MSPB 1993) However the First Circuit held thateven if the MSPB could not consider Petitionersrsquo requests for relief the Federal Circuit could do so onappeal from the MSPB Pet App 13a The FederalCircuit though has consistently held that the scope ofits jurisdiction on appeal from the MSPB is coextensivewith the MSPBrsquos and has never addressed issues beyond the limit of what the MSPB could review See

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

31

Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits of Perezrsquos challenge were not before theMSPB for decision nor are they before usrdquo) Manning v Merit Sys Prot Bd 742 F2d 1424 1427 (Fed Cir1984) (ldquoIf the MSPB does not have jurisdiction neitherdo we rdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) (ldquo[T]he scope of the subjectmatter jurisdiction of this court is identical to the scopeof the jurisdiction of the boardrdquo)

The First Circuit predicted nonetheless that theFederal Circuit would review constitutional claims that are unreviewable by the MSPB because the FederalCircuit had stated that if otherwise unreviewable colorable constitutional claims were before it it would have to review them under Webster Pet App 14a TheFirst Circuit however overstated the Federal Circuitrsquos position In Brockmann v Department of the Air Force a divided panel of the Federal Circuit held that theemployeersquos constitutional claims were not colorablebut did not actually hold whether it would be obligatedto review the employeersquos constitutional claims underWebster were they colorable 27 F3d at 546-47 Rigginv Office of Senate Fair Employment Practices also cited by the First Circuit did consider the constitutional claims of an employee that had not beenheard in the administrative board below but the Federal Circuit had first held that under the statutoryscheme at issue there the board should have reviewed the claim 61 F2d at 1570 Thus neither case squarelydecided the issue

Indeed the First Circuitrsquos assumption that theFederal Circuit would address an issue on appeal that

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

32

had not been heardmdashand could not have been heardmdashin the tribunal below is contrary to generalprinciples of appellate jurisdiction As the dissentingjudge in Brockmann explained reviewing an issue onappeal for the first timemdashincluding the issues ofwhether an employeersquos constitutional claims arecolorablemdashis not only jurisdictionally precluded but illadvised because the reviewing court lacks the benefitof a developed record 27 F3d at 550 (Newman Jdissenting)

In short the First Circuit concluded that even if the district court lacked jurisdiction over Petitionersrsquoconstitutional claims those claims could be aired in the MSPB and the Federal Circuit contrary to thosebodiesrsquo own practices and rulings regarding theirjurisdiction in effect leaving no forum for Petitionersrsquoclaims The First Circuitrsquos acrobatics highlight whythis Court should resolve the circuit split and hold thatdistrict courts have jurisdiction over federal employeesrsquoconstitutional claims for equitable relief

CONCLUSION The petition for writ of certiorari should be granted

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

33

Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman

Rodgers Powers amp Institute for Public Schwartz LLP Representation

18 Tremont St Georgetown University Boston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners

July 2011

___________________

___________________

___________________

___________________

No 11-45

IN THE

MICHAEL B ELGIN AARON LAWSON HENRY TUCKER AND CHRISTON COLBY

Petitioners v

UNITED STATES DEPARTMENT OF THE TREASURY ET AL

Respondents

On Petition for a Writ of Certiorari to the United States Court of Appeals for the First Circuit

PETITIONERSrsquo REPLY BRIEF

HARVEY A SCHWARTZ LEAH M NICHOLLS

(Counsel of Record) BRIAN WOLFMAN

RODGERS POWERS amp INSTITUTE FOR PUBLIC

SCHWARTZ LLP REPRESENTATION

18 Tremont St GEORGETOWN UNIVERSITY

Boston MA 02108 LAW CENTER

(617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312

lawyerscom Washington DC 20001(202) 662-9535

Counsel for Petitioners September 2011

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ii

PETITIONERSrsquo REPLY 1

I There is a Genuine Circuit Split the FirstCircuitrsquos Holding Was Incorrect and SimilarCases Are Frequently Litigated 1

II The CSRA Provides No Remedy for PetitionersrsquoConstitutional Claims 7

III Petitionersrsquo Constitutional Claims Are Substantial 10

CONCLUSION 12

ii

TABLE OF AUTHORITIES

CASES

Bivens v Six Unknown Federal Narcotics Agents 403 US 388 (1971) 4 5

Briggs v Merit Systems Protection Board 331 F3d 1307 (Fed Cir 2003) 8-9

Brooks v Office of Personal Management 59 MSPR 207 (MSPB 1993) 7

Bush v Lucas 462 US 367 (1983) 4

Carlson v Green 446 US 14 (1980) 5

Charner v OPM 2009 MSPB LEXIS 1296 (MSPB Mar 62009) 8

Davis v Passman 442 US 228 (1979) 5

Dotson v Griesa 398 F3d 156 (2d Cir 2005) 1 3 6

Harold v Barnhart 450 F Supp 2d 544 (ED Pa 2006) 7

iii

Hubbard v EPA 809 F2d 1 (DC Cir 1986) 1 2 3 5 6 7

Karahalios v National Federation of Federal Employees 489 US 527 (1989) 5

Lei v Brown 1997 US Dist LEXIS 15725 (ED Pa Oct 81997) 7

Lombardi v Small Business Administration 889 F2d 959 (10th Cir 1989) 1 2

Mitchum v Hurt 73 F3d 30 (3d Cir 1995) 1 3 4 5 6

Perez v Merit Systems Protection Board 931 F2d 853 (Fed Cir 1991) 8

Planned Parenthood of Southeastern Pennsylvania v Casey 505 US 833 (1992) 11

Reynolds v Federal Bureau of Prisons 2010 US Dist LEXIS 19090 (ED Pa Mar 22010) 6-7

Rhodes v Holt 2007 WL 1704653 (MD Pa June 12 2007) 6

iv

Rivera v Department of Veterans Affairs 2008 MSPB LEXIS 2056 (MSPB Mar 312008) 8

Rosano v Department of the Navy 699 F2d 1315 (Fed Cir 1983) 8

Rostker v Goldberg 453 US 57 (1981) 9 11

Selective Service System v Minnesota PublicInterest Research Group 468 US 841 (1984) 10 11

Shalala v Illinois Council on Long Term Care Inc 529 US 1 (2000) 4 9

Steadman v Governor US Soldiersrsquo amp Airmenrsquos Home 918 F2d 963 (DC Cir 1992) 2

Thunder Basin Coal Co v Reich 510 US 200 (1994) 4 9

Travaglini v Department of Education 18 MSPR 127 (MSPB 1983)affrsquod as modified 23 MSPR 417 (MSPB1984) 7-8

United States v Fausto 484 US 439 (1988) 5 6

v

Webster v Doe

STATUTES

OTHER SOURCE

Women in the US Army Todayrsquos Women Soldiers

486 US 592 (1988) 7 9

Whitman v Department of Transportation 547 US 512 (2006) 3 4

Yu v United States Department of Veterans Affairs 2011 US Dist LEXIS 71995 (WD Pa July 52011) 6

5 USC sect 3328 10

10 USC sect 6015 (repealed 1993) 11

10 USC sect 8549 (repealed 1991) 11

httpwwwarmymilwomentodayhtml (last visitedSept 20 2011) 11

ii

TABLE OF AUTHORITIES

CASES

Bivens v Six Unknown Federal Narcotics Agents 403 US 388 (1971) 4 5

Briggs v Merit Systems Protection Board 331 F3d 1307 (Fed Cir 2003) 8-9

Brooks v Office of Personal Management 59 MSPR 207 (MSPB 1993) 7

Bush v Lucas 462 US 367 (1983) 4

Carlson v Green 446 US 14 (1980) 5

Charner v OPM 2009 MSPB LEXIS 1296 (MSPB Mar 62009) 8

Davis v Passman 442 US 228 (1979) 5

Dotson v Griesa 398 F3d 156 (2d Cir 2005) 1 3 6

Harold v Barnhart 450 F Supp 2d 544 (ED Pa 2006) 7

iii

Hubbard v EPA 809 F2d 1 (DC Cir 1986) 1 2 3 5 6 7

Karahalios v National Federation of Federal Employees 489 US 527 (1989) 5

Lei v Brown 1997 US Dist LEXIS 15725 (ED Pa Oct 81997) 7

Lombardi v Small Business Administration 889 F2d 959 (10th Cir 1989) 1 2

Mitchum v Hurt 73 F3d 30 (3d Cir 1995) 1 3 4 5 6

Perez v Merit Systems Protection Board 931 F2d 853 (Fed Cir 1991) 8

Planned Parenthood of Southeastern Pennsylvania v Casey 505 US 833 (1992) 11

Reynolds v Federal Bureau of Prisons 2010 US Dist LEXIS 19090 (ED Pa Mar 22010) 6-7

Rhodes v Holt 2007 WL 1704653 (MD Pa June 12 2007) 6

iv

Rivera v Department of Veterans Affairs 2008 MSPB LEXIS 2056 (MSPB Mar 312008) 8

Rosano v Department of the Navy 699 F2d 1315 (Fed Cir 1983) 8

Rostker v Goldberg 453 US 57 (1981) 9 11

Selective Service System v Minnesota PublicInterest Research Group 468 US 841 (1984) 10 11

Shalala v Illinois Council on Long Term Care Inc 529 US 1 (2000) 4 9

Steadman v Governor US Soldiersrsquo amp Airmenrsquos Home 918 F2d 963 (DC Cir 1992) 2

Thunder Basin Coal Co v Reich 510 US 200 (1994) 4 9

Travaglini v Department of Education 18 MSPR 127 (MSPB 1983)affrsquod as modified 23 MSPR 417 (MSPB1984) 7-8

United States v Fausto 484 US 439 (1988) 5 6

v

Webster v Doe

STATUTES

OTHER SOURCE

Women in the US Army Todayrsquos Women Soldiers

486 US 592 (1988) 7 9

Whitman v Department of Transportation 547 US 512 (2006) 3 4

Yu v United States Department of Veterans Affairs 2011 US Dist LEXIS 71995 (WD Pa July 52011) 6

5 USC sect 3328 10

10 USC sect 6015 (repealed 1993) 11

10 USC sect 8549 (repealed 1991) 11

httpwwwarmymilwomentodayhtml (last visitedSept 20 2011) 11

iii

Hubbard v EPA 809 F2d 1 (DC Cir 1986) 1 2 3 5 6 7

Karahalios v National Federation of Federal Employees 489 US 527 (1989) 5

Lei v Brown 1997 US Dist LEXIS 15725 (ED Pa Oct 81997) 7

Lombardi v Small Business Administration 889 F2d 959 (10th Cir 1989) 1 2

Mitchum v Hurt 73 F3d 30 (3d Cir 1995) 1 3 4 5 6

Perez v Merit Systems Protection Board 931 F2d 853 (Fed Cir 1991) 8

Planned Parenthood of Southeastern Pennsylvania v Casey 505 US 833 (1992) 11

Reynolds v Federal Bureau of Prisons 2010 US Dist LEXIS 19090 (ED Pa Mar 22010) 6-7

Rhodes v Holt 2007 WL 1704653 (MD Pa June 12 2007) 6

iv

Rivera v Department of Veterans Affairs 2008 MSPB LEXIS 2056 (MSPB Mar 312008) 8

Rosano v Department of the Navy 699 F2d 1315 (Fed Cir 1983) 8

Rostker v Goldberg 453 US 57 (1981) 9 11

Selective Service System v Minnesota PublicInterest Research Group 468 US 841 (1984) 10 11

Shalala v Illinois Council on Long Term Care Inc 529 US 1 (2000) 4 9

Steadman v Governor US Soldiersrsquo amp Airmenrsquos Home 918 F2d 963 (DC Cir 1992) 2

Thunder Basin Coal Co v Reich 510 US 200 (1994) 4 9

Travaglini v Department of Education 18 MSPR 127 (MSPB 1983)affrsquod as modified 23 MSPR 417 (MSPB1984) 7-8

United States v Fausto 484 US 439 (1988) 5 6

v

Webster v Doe

STATUTES

OTHER SOURCE

Women in the US Army Todayrsquos Women Soldiers

486 US 592 (1988) 7 9

Whitman v Department of Transportation 547 US 512 (2006) 3 4

Yu v United States Department of Veterans Affairs 2011 US Dist LEXIS 71995 (WD Pa July 52011) 6

5 USC sect 3328 10

10 USC sect 6015 (repealed 1993) 11

10 USC sect 8549 (repealed 1991) 11

httpwwwarmymilwomentodayhtml (last visitedSept 20 2011) 11

iv

Rivera v Department of Veterans Affairs 2008 MSPB LEXIS 2056 (MSPB Mar 312008) 8

Rosano v Department of the Navy 699 F2d 1315 (Fed Cir 1983) 8

Rostker v Goldberg 453 US 57 (1981) 9 11

Selective Service System v Minnesota PublicInterest Research Group 468 US 841 (1984) 10 11

Shalala v Illinois Council on Long Term Care Inc 529 US 1 (2000) 4 9

Steadman v Governor US Soldiersrsquo amp Airmenrsquos Home 918 F2d 963 (DC Cir 1992) 2

Thunder Basin Coal Co v Reich 510 US 200 (1994) 4 9

Travaglini v Department of Education 18 MSPR 127 (MSPB 1983)affrsquod as modified 23 MSPR 417 (MSPB1984) 7-8

United States v Fausto 484 US 439 (1988) 5 6

v

Webster v Doe

STATUTES

OTHER SOURCE

Women in the US Army Todayrsquos Women Soldiers

486 US 592 (1988) 7 9

Whitman v Department of Transportation 547 US 512 (2006) 3 4

Yu v United States Department of Veterans Affairs 2011 US Dist LEXIS 71995 (WD Pa July 52011) 6

5 USC sect 3328 10

10 USC sect 6015 (repealed 1993) 11

10 USC sect 8549 (repealed 1991) 11

httpwwwarmymilwomentodayhtml (last visitedSept 20 2011) 11

v

Webster v Doe

STATUTES

OTHER SOURCE

Women in the US Army Todayrsquos Women Soldiers

486 US 592 (1988) 7 9

Whitman v Department of Transportation 547 US 512 (2006) 3 4

Yu v United States Department of Veterans Affairs 2011 US Dist LEXIS 71995 (WD Pa July 52011) 6

5 USC sect 3328 10

10 USC sect 6015 (repealed 1993) 11

10 USC sect 8549 (repealed 1991) 11

httpwwwarmymilwomentodayhtml (last visitedSept 20 2011) 11

PETITIONERSrsquo REPLY The government argues that the petition should be

denied because the First Circuitrsquos holding that federaldistrict courts do not have jurisdiction over federalemployeesrsquo equitable constitutional claims is correctand is compelled by this Courtrsquos precedent The government further contends that the circuit split overthis issue is shallow and unimportant and thatPetitionersrsquo claims are insubstantial None of these assertions is accurate or undermines the need for review of the question presented in the petition

I There Is a Genuine Circuit Split the FirstCircuitrsquos Holding Was Incorrect and SimilarCases Are Frequently Litigated

A The circuit courts are divided over whether the Civil Service Reform Act (CSRA) precludes the districtcourtsrsquo jurisdiction over federal employeesrsquo equitableconstitutional claims The DC and Third Circuits have held that the CSRA does not preclude districtcourt jurisdiction over federal employeesrsquo constitutionalclaims for equitable relief regardless of whether theCSRA provides a remedy for the employeesrsquoconstitutional claims Hubbard v EPA 809 F2d 1 11 (DC Cir 1986) Mitchum v Hurt 73 F3d 30 35 (3dCir 1995) On the other hand the First Circuit here and the Second and Tenth Circuits in Dotson v Griesa 398 F3d 156 179 (2d Cir 2005) and Lombardi v Small Business Administration 889 F2d 959 962 (10th Cir 1989) have held that the CSRA impliedly precludes district court jurisdiction over those sametypes of claims

Seeking to minimize the circuit split the government argues the DC Circuit ldquogenerally requires

2

exhaustion of administrative remedies as a prerequisite to bringing suitrdquo for constitutional claimsin equity for which relief is only ldquosometimes availablerdquo Opp 14 (citing Steadman v Governor US Soldiersrsquo amp Airmenrsquos Home 918 F2d 963 967 (DCCir 1992)) This characterization of the DC Circuitrsquos stance is incorrect Steadman involved former government employees whose union had failed totimely invoke the arbitration process under theircollective bargaining agreement and instead brought adue process claim challenging their termination in thedistrict court Steadman 918 F2d at 965 The DC Circuit held that ldquowhen a constitutional claim is intertwined with a statutory one and congress hasprovided machinery for the resolution of the latter aplaintiff must first pursue the administrative machineryrdquo but when ldquothe constitutional claim raisesissues totally unrelated to the CSRA proceduresrdquodirect action in the district court is available Id at 967 This case falls into the second category Petitionersrsquo facial constitutional challenge to 5 USCsect 3328 is not based on statutory rights conferred by the CSRA but on Petitionersrsquo rights under the Constitution And under the DC Circuitrsquos decision in Hubbard 809 F3d at 11 which the governmentrsquosopposition fails even to cite district court jurisdiction is available for Petitionersrsquo equitable constitutionalclaims The First Circuitrsquos holding below is thusdirectly at odds with Hubbard which the First Circuit acknowledged See Pet App 12a n4

The government also fails to explain away theconflict with the Third Circuitrsquos decision in Mitchum v Hurt See Opp 14 The government characterizes

3

Mitchum as holding that only ldquoin some circumstancesrdquodoes the CSRA ldquonot prevent a covered federal employeefrom seeking equitable relief for a constitutionalemployment claimrdquo Id at 14 However the Third Circuit in Mitchum unequivocally held that the CSRAdoes not preclude district court jurisdiction overequitable constitutional claims even where the CSRAprovided the employees a remedy Mitchum 73 F3d at 35-36 The Third Circuit acknowledged that othercircuits had come to a different conclusion but it held that ldquoon balance the District of Columbia has taken a better courserdquo because ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo and ldquowe should be very hesitant before concluding that Congress hasimpliedly imposed such a restriction on the authorityto award injunctive relief to vindicate constitutionalrightsrdquo Id at 35 (citing Hubbard 809 F2d at 11)Thus Mitchum is also contrary to the First Circuitrsquosdecision in this case which deepened a longstandingcircuit split acknowledged by seven circuits See Pet 14 amp 14 n2

B The district court has jurisdiction over Petitionersrsquo claims because it has jurisdiction over ldquoallcivil actions arising under the Constitutionrdquo 28 USCsect 1331 and Congress did not expressly remove that jurisdiction in the CSRA See Whitman v Deprsquot of Transp 547 US 512 514 (2006) (per curiam) The First Circuit majority here acknowledged that theCSRA does not expressly preclude jurisdiction overPetitionersrsquo constitutional claims and the governmentdoes not argue otherwise Pet App 6a

4

There is a ldquopresumed availability of federalequitable relief against threatened invasions ofconstitutional interestsrdquo Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) Thus as Whitman held the properquestion ldquois not whether [the CSRA] confers jurisdiction but whether [the CSRA] removes thejurisdiction given to the federal courtsrdquo 547 US at 514 Congress can eliminate district court jurisdictionunder 28 USC sect 1331 but it chose not do so in the CSRA Indeed in other statutes Congress hasexplicitly stated that litigants may not bring actions indistrict court Shalala v Ill Council on Long TermCare Inc 529 US 1 23-24 (2000) (ldquoNo action against the United States the [Secretary] or any officer oremployee thereof shall be brought under [28 USCsect] 1331rdquo) see also Thunder Basin Coal Co v Reich 510 US 200 215 (1994) (jurisdiction of the Federal Mine Safety and Health Review Commission ldquoshall beexclusive and its judgment and decree shall be finalrdquo) Thus because the CSRA does not explicitly remove the district courtrsquos jurisdiction the district court hadjurisdiction here

This Court has never addressed whether the CSRA precludes district court jurisdiction over equitableconstitutional claims As the government notes thisCourt has held that the comprehensive nature of theCSRA is a factor counseling hesitation againstextending Bivens damages remedies to federal employees seeking relief outside the CSRA Bush v Lucas 462 US 367 380 (1983) However the abilityof federal courts to grant equitable relief to remedyconstitutional violations is ldquoinherent in the

5

Constitution itselfrdquo while monetary relief for constitutional injuries is a judicially created remedyHubbard 809 F2d at 11 see Bivens 403 US at 396 Pet 25-26

The government relies on United States v Fausto 484 US 439 (1988) and Karahalios v National Federation of Federal Employees 489 US 527 (1989)To be sure those cases held that the CSRA precludedstatutory claims in the district courts Fausto 484 US at 455 (CSRA precludes district court jurisdictionover statutory monetary claims under the Back PayAct) Karahalios 489 US at 536 (no district courtcause of action for enforcement of rights granted by the CSRA in part in light of the CSRArsquos remedial scheme) Jurisdiction over statutory claims must be granted byCongress and ldquo[t]he classic judicial task of reconcilingmany laws enacted over time necessarily assumes that the implications of a statute may be altered by the implications of a later statuterdquo which can thereforeeliminate district court jurisdiction Fausto 484 US at 453 However jurisdiction over constitutionalclaims is ldquoinherent in the constitutionrdquo and must be expressly eliminated by Congress (assuming that they can be eliminated at all) Hubbard 809 F2d at 11 See also Fausto 484 US at 455 (Blackmun J concurring) (citing Davis v Passman 442 US 228 (1979) Carlson v Green 446 US 14 (1980))

The government suggests that the Court need notgrant review because the question presented hasalready been resolved in cases such as Bush Fausto and Karahalios Opp 8-9 That is not so As noted above those cases did not concern whether and in what circumstances a federal statute may impliedly

6

divest the district courts of jurisdiction over constitutional claims seeking equitable relief Indeed the circuit split on the question whether the CSRAprecludes district court jurisdiction over employeesrsquoequitable constitutional claims emerged after this Court decided both Bush and Fausto Hubbard and Mitchum considered Bush and Mitchum addressed Fausto Hubbard 809 F2d at 1 Mitchum 73 F3d at 34 Neither decision considered this Courtrsquos priorrulings to have resolved whether the CSRA precludesequitable constitutional claims Moreover even the Second Circuit and the First Circuit below which both decided the question favorably to the government didnot view the issue as preordained by this Courtrsquosdecisions in Bush and Fausto Dotson 398 F3d at 180 Pet App 11a-12a

C The government asserts that review should bedenied because the question whether the CSRAprecludes district court jurisdiction over equitableconstitutional claims is ldquoof limited practicalimportancerdquo and ldquoinfrequently litigatedrdquo Opp 15The government states that it is aware of only one case since Mitchum in the Third Circuit ldquoin which a federal employee has sought equitable relief in the districtcourt based on an allegedly unconstitutionalemployment-related actionrdquo Id at 15 (citing Rhodes v Holt 2007 WL 1704653 (MD Pa June 12 2007)) However in at least four other cases since Mitchum a federal employee has brought an equitableconstitutional claim against his or her employer in adistrict court in the Third Circuit1

1 Yu v US Deprsquot of Veterans Affairs 2011 US Dist LEXIS 71995 (WD Pa July 5 2011) Reynolds v Fed Bureau of Prisons

7

In sum the division among the circuit courts isdeep and longstanding and the question presentedarises often This Courtrsquos review is needed II The CSRA Provides No Remedy for Petitionersrsquo

Constitutional Claims

The government argues that the normal concernsover reading a federal statute to impliedly precludedistrict court jurisdiction over constitutional claims for equitable relief see Webster v Doe 486 US 592 (1988) are present only when the statutory schemeprovides no constitutional remedy Opp 10 Because a remedy for Petitionersrsquo claims exists under the CSRAthe government argues there is no district courtjurisdiction here Id

We disagree with the governmentrsquos premise Asexplained above the district courts are open toconstitutional claims unless Congress explicitly divests them of jurisdiction But even taken on its own terms the governmentrsquos argument is incorrect because thereis no remedy for Petitionersrsquo constitutional claimsunder the CSRA

The CSRA sends federal employeesrsquo claims to theMerit Systems Protection Board (MSPB) which lacksthe power to strike down acts of Congress and lacks jurisdiction to review employeesrsquo terminations whenthere is an absolute statutory bar against the individualrsquos employment as there is here See Brooks v Office of Pers Mgmt 59 MSPR 207 215 n7 (MSPB 1993) Travaglini v Deprsquot of Ed 18

2010 US Dist LEXIS 19090 (ED Pa Mar 2 2010) Harold v Barnhart 450 F Supp 2d 544 (ED Pa 2006) Lei v Brown 1997 US Dist LEXIS 15725 (ED Pa Oct 8 1997)

8

MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984))Indeed the government regularly asserts that theMSPB lacks jurisdiction over employeesrsquo claims whenthere is an absolute statutory bar to their employmentand consistently obtains summary judgment in the MSPB on that basis See eg Charner v OPM 2009 MSPB LEXIS 1296 (MSPB Mar 6 2009) Rivera v Deprsquot of Veterans Affairs 2008 MSPB LEXIS 2056 (MSPB Mar 31 2008) Here the First Circuit acknowledged that the MSPB cannot strike down astatute and the government does not argue otherwise Pet App 13a

Instead the government argues that the FederalCircuit could have exercised appellate review overPetitionersrsquo claims despite the lack of MSPB jurisdiction and the lack of a factual record Id at 10 However the Federal Circuit has held that its jurisdiction on appeals from the MSPB extends nofurther than the jurisdiction of the MSPB itself See Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits were not before the MSPB for decision nor are they before usrdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) For example inRosano the Federal Circuit refused to hear the merits of a constitutional free-exercise-of-religion claim because the MSPB lacked jurisdiction holding thatldquothe scope of the subject matter jurisdiction of [theFederal Circuit] is identical to the scope of thejurisdiction of the [MSPB]rdquo Id

The government notes that the Federal Circuitmade an exception to this practice in Briggs v Merit

9

Systems Protection Board 331 F3d 1307 (Fed Cir2003) Opp 13 Briggs held that ldquolack of a need to develop a factual record before adjudicationrdquo is a factorindicating that a legal issue may be justiciable for the first time on appeal 331 F3d at 1313 Petitionersrsquo case on the merits here requires developing anextensive factual record on the changing role of womenin the military to support its challenge to the continued viability of Rostker v Goldberg 453 US 57 (1981)(holding that limiting the Selective Servicersquos registration requirement to men did not violate the dueprocess clause of the Fifth Amendment) Accordinglyeven under Briggsrsquos rationale the Federal Circuit would have lacked jurisdiction to review Petitionersrsquoclaims

The government claims that this Court has heldthat a court of appeals can adjudicate a constitutionalclaim on appeal from an administrative agency even if the agency could not have considered it Opp 11However in both cases on which the governmentrelies Thunder Basin 510 US at 215 and Shalala 529 US at 23-24 the statute giving jurisdiction to the administrative body and appellate court expresslyprecluded review in the district court When Congressexpressly precludes judicial review in the districtcourts there must be judicial review on appeal from an administrative tribunal to avoid the ldquoserious constitutional questionrdquo that would arise if Congresscompletely precluded judicial review of constitutionalclaims Webster 486 US at 603 As discussed above it is undisputed here that the CSRA does not explicitlypreclude district court jurisdiction rendering Thunder Basin and Shalala inapposite

10

III Petitionersrsquo Constitutional Claims Are Substantial

Contrary to the governmentrsquos assertion Petitionersrsquo claims on the merits are substantial As for their first claim Petitioners argue and the district courtacknowledged in its initial summary judgmentdecision see Pet App 86a that 5 USC sect 3328 meets the three-part test for determining whether an act ofCongress is a Bill of Attainder See Selective Serv Sys v Minn Pub Interest Research Group 468 US 841 (1984) For a statute to be a Bill of Attainder a specific individual or group must be singled out oridentified by ldquoimmutablerdquo conduct the legislature must inflict punishment of a type historically imposed byBills of Attainder and the punishment must beimposed without a judicial trial Id

First 5 USC sect 3328 identifies a group by its conduct men who did not register with the selectiveservice If the Office of Personnel Management firstchooses to enforce the statute after their 26th birthday men cannot change their conduct to avoid thepunishments imposed by the statute The statute at issue in Selective Service System v Minnesota PIRGbarred federal student loans for men who failed to register with the Selective Service 468 US at 844 That statute was held not to be a Bill of Attainder because it allowed a grace period for student loanapplicants who had been notified that they had notregistered with the Selective Service to then registerand qualify for aid Id at 864 The statute at issue here however contains no such grace period and thepunishment is based on past immutable conduct 5 USC sect 3328 Second sect 3328 inflicts punishment that

11

was historically imposed by Bills of Attainder denial ofemployment See 468 US at 852 Finally thepunishment is imposed without a judicial trial See id at 847

Petitionersrsquo equal protection claim raises a substantial challenge to the continued viability of thisCourtrsquos decision in Rostker v Goldberg 453 US 57 That decision was premised on the then-ldquocurrentthinking as to the place of women in the ArmedServicesrdquo and the limits on the positions women could fill in the military Id at 71 Petitioners argue that Rostker should be revisited because the role of women in the military societyrsquos perception of women in themilitary and the nature of military needs havechanged drastically in the thirty years since Rostker The force of stare decisis is at its low point when theunderlying facts are so changed that they can no longer justify the decision Planned Parenthood of Se Pa v Casey 505 US 833 855 (1992) Petitionersrsquo equalprotection claim presents such a case

Since Rostker nearly all positions in the militaryhave become open to women The statutoryrestrictions on women serving on combat ships and incombat aircraft cited by Rostker as justification forexcluding women from Selective Service requirementshave ended 453 US at 76 (citing 10 USC sect 6015 (repealed 1993) 10 USC sect 8549 (repealed 1991)) Unlike in 1981 women can now serve in 93 percent ofall Army occupations See id at 81 Women in the US Army Todayrsquos Women Soldiers httpwwwarmymilwomentodayhtml (last visited Sept 20 2011) The percentage of the Army made up of women increasedfrom 98 percent in 1983 to 155 percent in 2009 Id

2

exhaustion of administrative remedies as a prerequisite to bringing suitrdquo for constitutional claimsin equity for which relief is only ldquosometimes availablerdquo Opp 14 (citing Steadman v Governor US Soldiersrsquo amp Airmenrsquos Home 918 F2d 963 967 (DCCir 1992)) This characterization of the DC Circuitrsquos stance is incorrect Steadman involved former government employees whose union had failed totimely invoke the arbitration process under theircollective bargaining agreement and instead brought adue process claim challenging their termination in thedistrict court Steadman 918 F2d at 965 The DC Circuit held that ldquowhen a constitutional claim is intertwined with a statutory one and congress hasprovided machinery for the resolution of the latter aplaintiff must first pursue the administrative machineryrdquo but when ldquothe constitutional claim raisesissues totally unrelated to the CSRA proceduresrdquodirect action in the district court is available Id at 967 This case falls into the second category Petitionersrsquo facial constitutional challenge to 5 USCsect 3328 is not based on statutory rights conferred by the CSRA but on Petitionersrsquo rights under the Constitution And under the DC Circuitrsquos decision in Hubbard 809 F3d at 11 which the governmentrsquosopposition fails even to cite district court jurisdiction is available for Petitionersrsquo equitable constitutionalclaims The First Circuitrsquos holding below is thusdirectly at odds with Hubbard which the First Circuit acknowledged See Pet App 12a n4

The government also fails to explain away theconflict with the Third Circuitrsquos decision in Mitchum v Hurt See Opp 14 The government characterizes

3

Mitchum as holding that only ldquoin some circumstancesrdquodoes the CSRA ldquonot prevent a covered federal employeefrom seeking equitable relief for a constitutionalemployment claimrdquo Id at 14 However the Third Circuit in Mitchum unequivocally held that the CSRAdoes not preclude district court jurisdiction overequitable constitutional claims even where the CSRAprovided the employees a remedy Mitchum 73 F3d at 35-36 The Third Circuit acknowledged that othercircuits had come to a different conclusion but it held that ldquoon balance the District of Columbia has taken a better courserdquo because ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo and ldquowe should be very hesitant before concluding that Congress hasimpliedly imposed such a restriction on the authorityto award injunctive relief to vindicate constitutionalrightsrdquo Id at 35 (citing Hubbard 809 F2d at 11)Thus Mitchum is also contrary to the First Circuitrsquosdecision in this case which deepened a longstandingcircuit split acknowledged by seven circuits See Pet 14 amp 14 n2

B The district court has jurisdiction over Petitionersrsquo claims because it has jurisdiction over ldquoallcivil actions arising under the Constitutionrdquo 28 USCsect 1331 and Congress did not expressly remove that jurisdiction in the CSRA See Whitman v Deprsquot of Transp 547 US 512 514 (2006) (per curiam) The First Circuit majority here acknowledged that theCSRA does not expressly preclude jurisdiction overPetitionersrsquo constitutional claims and the governmentdoes not argue otherwise Pet App 6a

4

There is a ldquopresumed availability of federalequitable relief against threatened invasions ofconstitutional interestsrdquo Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) Thus as Whitman held the properquestion ldquois not whether [the CSRA] confers jurisdiction but whether [the CSRA] removes thejurisdiction given to the federal courtsrdquo 547 US at 514 Congress can eliminate district court jurisdictionunder 28 USC sect 1331 but it chose not do so in the CSRA Indeed in other statutes Congress hasexplicitly stated that litigants may not bring actions indistrict court Shalala v Ill Council on Long TermCare Inc 529 US 1 23-24 (2000) (ldquoNo action against the United States the [Secretary] or any officer oremployee thereof shall be brought under [28 USCsect] 1331rdquo) see also Thunder Basin Coal Co v Reich 510 US 200 215 (1994) (jurisdiction of the Federal Mine Safety and Health Review Commission ldquoshall beexclusive and its judgment and decree shall be finalrdquo) Thus because the CSRA does not explicitly remove the district courtrsquos jurisdiction the district court hadjurisdiction here

This Court has never addressed whether the CSRA precludes district court jurisdiction over equitableconstitutional claims As the government notes thisCourt has held that the comprehensive nature of theCSRA is a factor counseling hesitation againstextending Bivens damages remedies to federal employees seeking relief outside the CSRA Bush v Lucas 462 US 367 380 (1983) However the abilityof federal courts to grant equitable relief to remedyconstitutional violations is ldquoinherent in the

5

Constitution itselfrdquo while monetary relief for constitutional injuries is a judicially created remedyHubbard 809 F2d at 11 see Bivens 403 US at 396 Pet 25-26

The government relies on United States v Fausto 484 US 439 (1988) and Karahalios v National Federation of Federal Employees 489 US 527 (1989)To be sure those cases held that the CSRA precludedstatutory claims in the district courts Fausto 484 US at 455 (CSRA precludes district court jurisdictionover statutory monetary claims under the Back PayAct) Karahalios 489 US at 536 (no district courtcause of action for enforcement of rights granted by the CSRA in part in light of the CSRArsquos remedial scheme) Jurisdiction over statutory claims must be granted byCongress and ldquo[t]he classic judicial task of reconcilingmany laws enacted over time necessarily assumes that the implications of a statute may be altered by the implications of a later statuterdquo which can thereforeeliminate district court jurisdiction Fausto 484 US at 453 However jurisdiction over constitutionalclaims is ldquoinherent in the constitutionrdquo and must be expressly eliminated by Congress (assuming that they can be eliminated at all) Hubbard 809 F2d at 11 See also Fausto 484 US at 455 (Blackmun J concurring) (citing Davis v Passman 442 US 228 (1979) Carlson v Green 446 US 14 (1980))

The government suggests that the Court need notgrant review because the question presented hasalready been resolved in cases such as Bush Fausto and Karahalios Opp 8-9 That is not so As noted above those cases did not concern whether and in what circumstances a federal statute may impliedly

6

divest the district courts of jurisdiction over constitutional claims seeking equitable relief Indeed the circuit split on the question whether the CSRAprecludes district court jurisdiction over employeesrsquoequitable constitutional claims emerged after this Court decided both Bush and Fausto Hubbard and Mitchum considered Bush and Mitchum addressed Fausto Hubbard 809 F2d at 1 Mitchum 73 F3d at 34 Neither decision considered this Courtrsquos priorrulings to have resolved whether the CSRA precludesequitable constitutional claims Moreover even the Second Circuit and the First Circuit below which both decided the question favorably to the government didnot view the issue as preordained by this Courtrsquosdecisions in Bush and Fausto Dotson 398 F3d at 180 Pet App 11a-12a

C The government asserts that review should bedenied because the question whether the CSRAprecludes district court jurisdiction over equitableconstitutional claims is ldquoof limited practicalimportancerdquo and ldquoinfrequently litigatedrdquo Opp 15The government states that it is aware of only one case since Mitchum in the Third Circuit ldquoin which a federal employee has sought equitable relief in the districtcourt based on an allegedly unconstitutionalemployment-related actionrdquo Id at 15 (citing Rhodes v Holt 2007 WL 1704653 (MD Pa June 12 2007)) However in at least four other cases since Mitchum a federal employee has brought an equitableconstitutional claim against his or her employer in adistrict court in the Third Circuit1

1 Yu v US Deprsquot of Veterans Affairs 2011 US Dist LEXIS 71995 (WD Pa July 5 2011) Reynolds v Fed Bureau of Prisons

7

In sum the division among the circuit courts isdeep and longstanding and the question presentedarises often This Courtrsquos review is needed II The CSRA Provides No Remedy for Petitionersrsquo

Constitutional Claims

The government argues that the normal concernsover reading a federal statute to impliedly precludedistrict court jurisdiction over constitutional claims for equitable relief see Webster v Doe 486 US 592 (1988) are present only when the statutory schemeprovides no constitutional remedy Opp 10 Because a remedy for Petitionersrsquo claims exists under the CSRAthe government argues there is no district courtjurisdiction here Id

We disagree with the governmentrsquos premise Asexplained above the district courts are open toconstitutional claims unless Congress explicitly divests them of jurisdiction But even taken on its own terms the governmentrsquos argument is incorrect because thereis no remedy for Petitionersrsquo constitutional claimsunder the CSRA

The CSRA sends federal employeesrsquo claims to theMerit Systems Protection Board (MSPB) which lacksthe power to strike down acts of Congress and lacks jurisdiction to review employeesrsquo terminations whenthere is an absolute statutory bar against the individualrsquos employment as there is here See Brooks v Office of Pers Mgmt 59 MSPR 207 215 n7 (MSPB 1993) Travaglini v Deprsquot of Ed 18

2010 US Dist LEXIS 19090 (ED Pa Mar 2 2010) Harold v Barnhart 450 F Supp 2d 544 (ED Pa 2006) Lei v Brown 1997 US Dist LEXIS 15725 (ED Pa Oct 8 1997)

8

MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984))Indeed the government regularly asserts that theMSPB lacks jurisdiction over employeesrsquo claims whenthere is an absolute statutory bar to their employmentand consistently obtains summary judgment in the MSPB on that basis See eg Charner v OPM 2009 MSPB LEXIS 1296 (MSPB Mar 6 2009) Rivera v Deprsquot of Veterans Affairs 2008 MSPB LEXIS 2056 (MSPB Mar 31 2008) Here the First Circuit acknowledged that the MSPB cannot strike down astatute and the government does not argue otherwise Pet App 13a

Instead the government argues that the FederalCircuit could have exercised appellate review overPetitionersrsquo claims despite the lack of MSPB jurisdiction and the lack of a factual record Id at 10 However the Federal Circuit has held that its jurisdiction on appeals from the MSPB extends nofurther than the jurisdiction of the MSPB itself See Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits were not before the MSPB for decision nor are they before usrdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) For example inRosano the Federal Circuit refused to hear the merits of a constitutional free-exercise-of-religion claim because the MSPB lacked jurisdiction holding thatldquothe scope of the subject matter jurisdiction of [theFederal Circuit] is identical to the scope of thejurisdiction of the [MSPB]rdquo Id

The government notes that the Federal Circuitmade an exception to this practice in Briggs v Merit

9

Systems Protection Board 331 F3d 1307 (Fed Cir2003) Opp 13 Briggs held that ldquolack of a need to develop a factual record before adjudicationrdquo is a factorindicating that a legal issue may be justiciable for the first time on appeal 331 F3d at 1313 Petitionersrsquo case on the merits here requires developing anextensive factual record on the changing role of womenin the military to support its challenge to the continued viability of Rostker v Goldberg 453 US 57 (1981)(holding that limiting the Selective Servicersquos registration requirement to men did not violate the dueprocess clause of the Fifth Amendment) Accordinglyeven under Briggsrsquos rationale the Federal Circuit would have lacked jurisdiction to review Petitionersrsquoclaims

The government claims that this Court has heldthat a court of appeals can adjudicate a constitutionalclaim on appeal from an administrative agency even if the agency could not have considered it Opp 11However in both cases on which the governmentrelies Thunder Basin 510 US at 215 and Shalala 529 US at 23-24 the statute giving jurisdiction to the administrative body and appellate court expresslyprecluded review in the district court When Congressexpressly precludes judicial review in the districtcourts there must be judicial review on appeal from an administrative tribunal to avoid the ldquoserious constitutional questionrdquo that would arise if Congresscompletely precluded judicial review of constitutionalclaims Webster 486 US at 603 As discussed above it is undisputed here that the CSRA does not explicitlypreclude district court jurisdiction rendering Thunder Basin and Shalala inapposite

10

III Petitionersrsquo Constitutional Claims Are Substantial

Contrary to the governmentrsquos assertion Petitionersrsquo claims on the merits are substantial As for their first claim Petitioners argue and the district courtacknowledged in its initial summary judgmentdecision see Pet App 86a that 5 USC sect 3328 meets the three-part test for determining whether an act ofCongress is a Bill of Attainder See Selective Serv Sys v Minn Pub Interest Research Group 468 US 841 (1984) For a statute to be a Bill of Attainder a specific individual or group must be singled out oridentified by ldquoimmutablerdquo conduct the legislature must inflict punishment of a type historically imposed byBills of Attainder and the punishment must beimposed without a judicial trial Id

First 5 USC sect 3328 identifies a group by its conduct men who did not register with the selectiveservice If the Office of Personnel Management firstchooses to enforce the statute after their 26th birthday men cannot change their conduct to avoid thepunishments imposed by the statute The statute at issue in Selective Service System v Minnesota PIRGbarred federal student loans for men who failed to register with the Selective Service 468 US at 844 That statute was held not to be a Bill of Attainder because it allowed a grace period for student loanapplicants who had been notified that they had notregistered with the Selective Service to then registerand qualify for aid Id at 864 The statute at issue here however contains no such grace period and thepunishment is based on past immutable conduct 5 USC sect 3328 Second sect 3328 inflicts punishment that

11

was historically imposed by Bills of Attainder denial ofemployment See 468 US at 852 Finally thepunishment is imposed without a judicial trial See id at 847

Petitionersrsquo equal protection claim raises a substantial challenge to the continued viability of thisCourtrsquos decision in Rostker v Goldberg 453 US 57 That decision was premised on the then-ldquocurrentthinking as to the place of women in the ArmedServicesrdquo and the limits on the positions women could fill in the military Id at 71 Petitioners argue that Rostker should be revisited because the role of women in the military societyrsquos perception of women in themilitary and the nature of military needs havechanged drastically in the thirty years since Rostker The force of stare decisis is at its low point when theunderlying facts are so changed that they can no longer justify the decision Planned Parenthood of Se Pa v Casey 505 US 833 855 (1992) Petitionersrsquo equalprotection claim presents such a case

Since Rostker nearly all positions in the militaryhave become open to women The statutoryrestrictions on women serving on combat ships and incombat aircraft cited by Rostker as justification forexcluding women from Selective Service requirementshave ended 453 US at 76 (citing 10 USC sect 6015 (repealed 1993) 10 USC sect 8549 (repealed 1991)) Unlike in 1981 women can now serve in 93 percent ofall Army occupations See id at 81 Women in the US Army Todayrsquos Women Soldiers httpwwwarmymilwomentodayhtml (last visited Sept 20 2011) The percentage of the Army made up of women increasedfrom 98 percent in 1983 to 155 percent in 2009 Id

3

Mitchum as holding that only ldquoin some circumstancesrdquodoes the CSRA ldquonot prevent a covered federal employeefrom seeking equitable relief for a constitutionalemployment claimrdquo Id at 14 However the Third Circuit in Mitchum unequivocally held that the CSRAdoes not preclude district court jurisdiction overequitable constitutional claims even where the CSRAprovided the employees a remedy Mitchum 73 F3d at 35-36 The Third Circuit acknowledged that othercircuits had come to a different conclusion but it held that ldquoon balance the District of Columbia has taken a better courserdquo because ldquo[t]he power of the federalcourts to grant equitable relief for constitutionalviolations has long been establishedrdquo and ldquowe should be very hesitant before concluding that Congress hasimpliedly imposed such a restriction on the authorityto award injunctive relief to vindicate constitutionalrightsrdquo Id at 35 (citing Hubbard 809 F2d at 11)Thus Mitchum is also contrary to the First Circuitrsquosdecision in this case which deepened a longstandingcircuit split acknowledged by seven circuits See Pet 14 amp 14 n2

B The district court has jurisdiction over Petitionersrsquo claims because it has jurisdiction over ldquoallcivil actions arising under the Constitutionrdquo 28 USCsect 1331 and Congress did not expressly remove that jurisdiction in the CSRA See Whitman v Deprsquot of Transp 547 US 512 514 (2006) (per curiam) The First Circuit majority here acknowledged that theCSRA does not expressly preclude jurisdiction overPetitionersrsquo constitutional claims and the governmentdoes not argue otherwise Pet App 6a

4

There is a ldquopresumed availability of federalequitable relief against threatened invasions ofconstitutional interestsrdquo Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) Thus as Whitman held the properquestion ldquois not whether [the CSRA] confers jurisdiction but whether [the CSRA] removes thejurisdiction given to the federal courtsrdquo 547 US at 514 Congress can eliminate district court jurisdictionunder 28 USC sect 1331 but it chose not do so in the CSRA Indeed in other statutes Congress hasexplicitly stated that litigants may not bring actions indistrict court Shalala v Ill Council on Long TermCare Inc 529 US 1 23-24 (2000) (ldquoNo action against the United States the [Secretary] or any officer oremployee thereof shall be brought under [28 USCsect] 1331rdquo) see also Thunder Basin Coal Co v Reich 510 US 200 215 (1994) (jurisdiction of the Federal Mine Safety and Health Review Commission ldquoshall beexclusive and its judgment and decree shall be finalrdquo) Thus because the CSRA does not explicitly remove the district courtrsquos jurisdiction the district court hadjurisdiction here

This Court has never addressed whether the CSRA precludes district court jurisdiction over equitableconstitutional claims As the government notes thisCourt has held that the comprehensive nature of theCSRA is a factor counseling hesitation againstextending Bivens damages remedies to federal employees seeking relief outside the CSRA Bush v Lucas 462 US 367 380 (1983) However the abilityof federal courts to grant equitable relief to remedyconstitutional violations is ldquoinherent in the

5

Constitution itselfrdquo while monetary relief for constitutional injuries is a judicially created remedyHubbard 809 F2d at 11 see Bivens 403 US at 396 Pet 25-26

The government relies on United States v Fausto 484 US 439 (1988) and Karahalios v National Federation of Federal Employees 489 US 527 (1989)To be sure those cases held that the CSRA precludedstatutory claims in the district courts Fausto 484 US at 455 (CSRA precludes district court jurisdictionover statutory monetary claims under the Back PayAct) Karahalios 489 US at 536 (no district courtcause of action for enforcement of rights granted by the CSRA in part in light of the CSRArsquos remedial scheme) Jurisdiction over statutory claims must be granted byCongress and ldquo[t]he classic judicial task of reconcilingmany laws enacted over time necessarily assumes that the implications of a statute may be altered by the implications of a later statuterdquo which can thereforeeliminate district court jurisdiction Fausto 484 US at 453 However jurisdiction over constitutionalclaims is ldquoinherent in the constitutionrdquo and must be expressly eliminated by Congress (assuming that they can be eliminated at all) Hubbard 809 F2d at 11 See also Fausto 484 US at 455 (Blackmun J concurring) (citing Davis v Passman 442 US 228 (1979) Carlson v Green 446 US 14 (1980))

The government suggests that the Court need notgrant review because the question presented hasalready been resolved in cases such as Bush Fausto and Karahalios Opp 8-9 That is not so As noted above those cases did not concern whether and in what circumstances a federal statute may impliedly

6

divest the district courts of jurisdiction over constitutional claims seeking equitable relief Indeed the circuit split on the question whether the CSRAprecludes district court jurisdiction over employeesrsquoequitable constitutional claims emerged after this Court decided both Bush and Fausto Hubbard and Mitchum considered Bush and Mitchum addressed Fausto Hubbard 809 F2d at 1 Mitchum 73 F3d at 34 Neither decision considered this Courtrsquos priorrulings to have resolved whether the CSRA precludesequitable constitutional claims Moreover even the Second Circuit and the First Circuit below which both decided the question favorably to the government didnot view the issue as preordained by this Courtrsquosdecisions in Bush and Fausto Dotson 398 F3d at 180 Pet App 11a-12a

C The government asserts that review should bedenied because the question whether the CSRAprecludes district court jurisdiction over equitableconstitutional claims is ldquoof limited practicalimportancerdquo and ldquoinfrequently litigatedrdquo Opp 15The government states that it is aware of only one case since Mitchum in the Third Circuit ldquoin which a federal employee has sought equitable relief in the districtcourt based on an allegedly unconstitutionalemployment-related actionrdquo Id at 15 (citing Rhodes v Holt 2007 WL 1704653 (MD Pa June 12 2007)) However in at least four other cases since Mitchum a federal employee has brought an equitableconstitutional claim against his or her employer in adistrict court in the Third Circuit1

1 Yu v US Deprsquot of Veterans Affairs 2011 US Dist LEXIS 71995 (WD Pa July 5 2011) Reynolds v Fed Bureau of Prisons

7

In sum the division among the circuit courts isdeep and longstanding and the question presentedarises often This Courtrsquos review is needed II The CSRA Provides No Remedy for Petitionersrsquo

Constitutional Claims

The government argues that the normal concernsover reading a federal statute to impliedly precludedistrict court jurisdiction over constitutional claims for equitable relief see Webster v Doe 486 US 592 (1988) are present only when the statutory schemeprovides no constitutional remedy Opp 10 Because a remedy for Petitionersrsquo claims exists under the CSRAthe government argues there is no district courtjurisdiction here Id

We disagree with the governmentrsquos premise Asexplained above the district courts are open toconstitutional claims unless Congress explicitly divests them of jurisdiction But even taken on its own terms the governmentrsquos argument is incorrect because thereis no remedy for Petitionersrsquo constitutional claimsunder the CSRA

The CSRA sends federal employeesrsquo claims to theMerit Systems Protection Board (MSPB) which lacksthe power to strike down acts of Congress and lacks jurisdiction to review employeesrsquo terminations whenthere is an absolute statutory bar against the individualrsquos employment as there is here See Brooks v Office of Pers Mgmt 59 MSPR 207 215 n7 (MSPB 1993) Travaglini v Deprsquot of Ed 18

2010 US Dist LEXIS 19090 (ED Pa Mar 2 2010) Harold v Barnhart 450 F Supp 2d 544 (ED Pa 2006) Lei v Brown 1997 US Dist LEXIS 15725 (ED Pa Oct 8 1997)

8

MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984))Indeed the government regularly asserts that theMSPB lacks jurisdiction over employeesrsquo claims whenthere is an absolute statutory bar to their employmentand consistently obtains summary judgment in the MSPB on that basis See eg Charner v OPM 2009 MSPB LEXIS 1296 (MSPB Mar 6 2009) Rivera v Deprsquot of Veterans Affairs 2008 MSPB LEXIS 2056 (MSPB Mar 31 2008) Here the First Circuit acknowledged that the MSPB cannot strike down astatute and the government does not argue otherwise Pet App 13a

Instead the government argues that the FederalCircuit could have exercised appellate review overPetitionersrsquo claims despite the lack of MSPB jurisdiction and the lack of a factual record Id at 10 However the Federal Circuit has held that its jurisdiction on appeals from the MSPB extends nofurther than the jurisdiction of the MSPB itself See Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits were not before the MSPB for decision nor are they before usrdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) For example inRosano the Federal Circuit refused to hear the merits of a constitutional free-exercise-of-religion claim because the MSPB lacked jurisdiction holding thatldquothe scope of the subject matter jurisdiction of [theFederal Circuit] is identical to the scope of thejurisdiction of the [MSPB]rdquo Id

The government notes that the Federal Circuitmade an exception to this practice in Briggs v Merit

9

Systems Protection Board 331 F3d 1307 (Fed Cir2003) Opp 13 Briggs held that ldquolack of a need to develop a factual record before adjudicationrdquo is a factorindicating that a legal issue may be justiciable for the first time on appeal 331 F3d at 1313 Petitionersrsquo case on the merits here requires developing anextensive factual record on the changing role of womenin the military to support its challenge to the continued viability of Rostker v Goldberg 453 US 57 (1981)(holding that limiting the Selective Servicersquos registration requirement to men did not violate the dueprocess clause of the Fifth Amendment) Accordinglyeven under Briggsrsquos rationale the Federal Circuit would have lacked jurisdiction to review Petitionersrsquoclaims

The government claims that this Court has heldthat a court of appeals can adjudicate a constitutionalclaim on appeal from an administrative agency even if the agency could not have considered it Opp 11However in both cases on which the governmentrelies Thunder Basin 510 US at 215 and Shalala 529 US at 23-24 the statute giving jurisdiction to the administrative body and appellate court expresslyprecluded review in the district court When Congressexpressly precludes judicial review in the districtcourts there must be judicial review on appeal from an administrative tribunal to avoid the ldquoserious constitutional questionrdquo that would arise if Congresscompletely precluded judicial review of constitutionalclaims Webster 486 US at 603 As discussed above it is undisputed here that the CSRA does not explicitlypreclude district court jurisdiction rendering Thunder Basin and Shalala inapposite

10

III Petitionersrsquo Constitutional Claims Are Substantial

Contrary to the governmentrsquos assertion Petitionersrsquo claims on the merits are substantial As for their first claim Petitioners argue and the district courtacknowledged in its initial summary judgmentdecision see Pet App 86a that 5 USC sect 3328 meets the three-part test for determining whether an act ofCongress is a Bill of Attainder See Selective Serv Sys v Minn Pub Interest Research Group 468 US 841 (1984) For a statute to be a Bill of Attainder a specific individual or group must be singled out oridentified by ldquoimmutablerdquo conduct the legislature must inflict punishment of a type historically imposed byBills of Attainder and the punishment must beimposed without a judicial trial Id

First 5 USC sect 3328 identifies a group by its conduct men who did not register with the selectiveservice If the Office of Personnel Management firstchooses to enforce the statute after their 26th birthday men cannot change their conduct to avoid thepunishments imposed by the statute The statute at issue in Selective Service System v Minnesota PIRGbarred federal student loans for men who failed to register with the Selective Service 468 US at 844 That statute was held not to be a Bill of Attainder because it allowed a grace period for student loanapplicants who had been notified that they had notregistered with the Selective Service to then registerand qualify for aid Id at 864 The statute at issue here however contains no such grace period and thepunishment is based on past immutable conduct 5 USC sect 3328 Second sect 3328 inflicts punishment that

11

was historically imposed by Bills of Attainder denial ofemployment See 468 US at 852 Finally thepunishment is imposed without a judicial trial See id at 847

Petitionersrsquo equal protection claim raises a substantial challenge to the continued viability of thisCourtrsquos decision in Rostker v Goldberg 453 US 57 That decision was premised on the then-ldquocurrentthinking as to the place of women in the ArmedServicesrdquo and the limits on the positions women could fill in the military Id at 71 Petitioners argue that Rostker should be revisited because the role of women in the military societyrsquos perception of women in themilitary and the nature of military needs havechanged drastically in the thirty years since Rostker The force of stare decisis is at its low point when theunderlying facts are so changed that they can no longer justify the decision Planned Parenthood of Se Pa v Casey 505 US 833 855 (1992) Petitionersrsquo equalprotection claim presents such a case

Since Rostker nearly all positions in the militaryhave become open to women The statutoryrestrictions on women serving on combat ships and incombat aircraft cited by Rostker as justification forexcluding women from Selective Service requirementshave ended 453 US at 76 (citing 10 USC sect 6015 (repealed 1993) 10 USC sect 8549 (repealed 1991)) Unlike in 1981 women can now serve in 93 percent ofall Army occupations See id at 81 Women in the US Army Todayrsquos Women Soldiers httpwwwarmymilwomentodayhtml (last visited Sept 20 2011) The percentage of the Army made up of women increasedfrom 98 percent in 1983 to 155 percent in 2009 Id

4

There is a ldquopresumed availability of federalequitable relief against threatened invasions ofconstitutional interestsrdquo Bivens v Six Unknown Fed Narcotics Agents 403 US 388 404 (1971) (Harlan J concurring) Thus as Whitman held the properquestion ldquois not whether [the CSRA] confers jurisdiction but whether [the CSRA] removes thejurisdiction given to the federal courtsrdquo 547 US at 514 Congress can eliminate district court jurisdictionunder 28 USC sect 1331 but it chose not do so in the CSRA Indeed in other statutes Congress hasexplicitly stated that litigants may not bring actions indistrict court Shalala v Ill Council on Long TermCare Inc 529 US 1 23-24 (2000) (ldquoNo action against the United States the [Secretary] or any officer oremployee thereof shall be brought under [28 USCsect] 1331rdquo) see also Thunder Basin Coal Co v Reich 510 US 200 215 (1994) (jurisdiction of the Federal Mine Safety and Health Review Commission ldquoshall beexclusive and its judgment and decree shall be finalrdquo) Thus because the CSRA does not explicitly remove the district courtrsquos jurisdiction the district court hadjurisdiction here

This Court has never addressed whether the CSRA precludes district court jurisdiction over equitableconstitutional claims As the government notes thisCourt has held that the comprehensive nature of theCSRA is a factor counseling hesitation againstextending Bivens damages remedies to federal employees seeking relief outside the CSRA Bush v Lucas 462 US 367 380 (1983) However the abilityof federal courts to grant equitable relief to remedyconstitutional violations is ldquoinherent in the

5

Constitution itselfrdquo while monetary relief for constitutional injuries is a judicially created remedyHubbard 809 F2d at 11 see Bivens 403 US at 396 Pet 25-26

The government relies on United States v Fausto 484 US 439 (1988) and Karahalios v National Federation of Federal Employees 489 US 527 (1989)To be sure those cases held that the CSRA precludedstatutory claims in the district courts Fausto 484 US at 455 (CSRA precludes district court jurisdictionover statutory monetary claims under the Back PayAct) Karahalios 489 US at 536 (no district courtcause of action for enforcement of rights granted by the CSRA in part in light of the CSRArsquos remedial scheme) Jurisdiction over statutory claims must be granted byCongress and ldquo[t]he classic judicial task of reconcilingmany laws enacted over time necessarily assumes that the implications of a statute may be altered by the implications of a later statuterdquo which can thereforeeliminate district court jurisdiction Fausto 484 US at 453 However jurisdiction over constitutionalclaims is ldquoinherent in the constitutionrdquo and must be expressly eliminated by Congress (assuming that they can be eliminated at all) Hubbard 809 F2d at 11 See also Fausto 484 US at 455 (Blackmun J concurring) (citing Davis v Passman 442 US 228 (1979) Carlson v Green 446 US 14 (1980))

The government suggests that the Court need notgrant review because the question presented hasalready been resolved in cases such as Bush Fausto and Karahalios Opp 8-9 That is not so As noted above those cases did not concern whether and in what circumstances a federal statute may impliedly

6

divest the district courts of jurisdiction over constitutional claims seeking equitable relief Indeed the circuit split on the question whether the CSRAprecludes district court jurisdiction over employeesrsquoequitable constitutional claims emerged after this Court decided both Bush and Fausto Hubbard and Mitchum considered Bush and Mitchum addressed Fausto Hubbard 809 F2d at 1 Mitchum 73 F3d at 34 Neither decision considered this Courtrsquos priorrulings to have resolved whether the CSRA precludesequitable constitutional claims Moreover even the Second Circuit and the First Circuit below which both decided the question favorably to the government didnot view the issue as preordained by this Courtrsquosdecisions in Bush and Fausto Dotson 398 F3d at 180 Pet App 11a-12a

C The government asserts that review should bedenied because the question whether the CSRAprecludes district court jurisdiction over equitableconstitutional claims is ldquoof limited practicalimportancerdquo and ldquoinfrequently litigatedrdquo Opp 15The government states that it is aware of only one case since Mitchum in the Third Circuit ldquoin which a federal employee has sought equitable relief in the districtcourt based on an allegedly unconstitutionalemployment-related actionrdquo Id at 15 (citing Rhodes v Holt 2007 WL 1704653 (MD Pa June 12 2007)) However in at least four other cases since Mitchum a federal employee has brought an equitableconstitutional claim against his or her employer in adistrict court in the Third Circuit1

1 Yu v US Deprsquot of Veterans Affairs 2011 US Dist LEXIS 71995 (WD Pa July 5 2011) Reynolds v Fed Bureau of Prisons

7

In sum the division among the circuit courts isdeep and longstanding and the question presentedarises often This Courtrsquos review is needed II The CSRA Provides No Remedy for Petitionersrsquo

Constitutional Claims

The government argues that the normal concernsover reading a federal statute to impliedly precludedistrict court jurisdiction over constitutional claims for equitable relief see Webster v Doe 486 US 592 (1988) are present only when the statutory schemeprovides no constitutional remedy Opp 10 Because a remedy for Petitionersrsquo claims exists under the CSRAthe government argues there is no district courtjurisdiction here Id

We disagree with the governmentrsquos premise Asexplained above the district courts are open toconstitutional claims unless Congress explicitly divests them of jurisdiction But even taken on its own terms the governmentrsquos argument is incorrect because thereis no remedy for Petitionersrsquo constitutional claimsunder the CSRA

The CSRA sends federal employeesrsquo claims to theMerit Systems Protection Board (MSPB) which lacksthe power to strike down acts of Congress and lacks jurisdiction to review employeesrsquo terminations whenthere is an absolute statutory bar against the individualrsquos employment as there is here See Brooks v Office of Pers Mgmt 59 MSPR 207 215 n7 (MSPB 1993) Travaglini v Deprsquot of Ed 18

2010 US Dist LEXIS 19090 (ED Pa Mar 2 2010) Harold v Barnhart 450 F Supp 2d 544 (ED Pa 2006) Lei v Brown 1997 US Dist LEXIS 15725 (ED Pa Oct 8 1997)

8

MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984))Indeed the government regularly asserts that theMSPB lacks jurisdiction over employeesrsquo claims whenthere is an absolute statutory bar to their employmentand consistently obtains summary judgment in the MSPB on that basis See eg Charner v OPM 2009 MSPB LEXIS 1296 (MSPB Mar 6 2009) Rivera v Deprsquot of Veterans Affairs 2008 MSPB LEXIS 2056 (MSPB Mar 31 2008) Here the First Circuit acknowledged that the MSPB cannot strike down astatute and the government does not argue otherwise Pet App 13a

Instead the government argues that the FederalCircuit could have exercised appellate review overPetitionersrsquo claims despite the lack of MSPB jurisdiction and the lack of a factual record Id at 10 However the Federal Circuit has held that its jurisdiction on appeals from the MSPB extends nofurther than the jurisdiction of the MSPB itself See Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits were not before the MSPB for decision nor are they before usrdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) For example inRosano the Federal Circuit refused to hear the merits of a constitutional free-exercise-of-religion claim because the MSPB lacked jurisdiction holding thatldquothe scope of the subject matter jurisdiction of [theFederal Circuit] is identical to the scope of thejurisdiction of the [MSPB]rdquo Id

The government notes that the Federal Circuitmade an exception to this practice in Briggs v Merit

9

Systems Protection Board 331 F3d 1307 (Fed Cir2003) Opp 13 Briggs held that ldquolack of a need to develop a factual record before adjudicationrdquo is a factorindicating that a legal issue may be justiciable for the first time on appeal 331 F3d at 1313 Petitionersrsquo case on the merits here requires developing anextensive factual record on the changing role of womenin the military to support its challenge to the continued viability of Rostker v Goldberg 453 US 57 (1981)(holding that limiting the Selective Servicersquos registration requirement to men did not violate the dueprocess clause of the Fifth Amendment) Accordinglyeven under Briggsrsquos rationale the Federal Circuit would have lacked jurisdiction to review Petitionersrsquoclaims

The government claims that this Court has heldthat a court of appeals can adjudicate a constitutionalclaim on appeal from an administrative agency even if the agency could not have considered it Opp 11However in both cases on which the governmentrelies Thunder Basin 510 US at 215 and Shalala 529 US at 23-24 the statute giving jurisdiction to the administrative body and appellate court expresslyprecluded review in the district court When Congressexpressly precludes judicial review in the districtcourts there must be judicial review on appeal from an administrative tribunal to avoid the ldquoserious constitutional questionrdquo that would arise if Congresscompletely precluded judicial review of constitutionalclaims Webster 486 US at 603 As discussed above it is undisputed here that the CSRA does not explicitlypreclude district court jurisdiction rendering Thunder Basin and Shalala inapposite

10

III Petitionersrsquo Constitutional Claims Are Substantial

Contrary to the governmentrsquos assertion Petitionersrsquo claims on the merits are substantial As for their first claim Petitioners argue and the district courtacknowledged in its initial summary judgmentdecision see Pet App 86a that 5 USC sect 3328 meets the three-part test for determining whether an act ofCongress is a Bill of Attainder See Selective Serv Sys v Minn Pub Interest Research Group 468 US 841 (1984) For a statute to be a Bill of Attainder a specific individual or group must be singled out oridentified by ldquoimmutablerdquo conduct the legislature must inflict punishment of a type historically imposed byBills of Attainder and the punishment must beimposed without a judicial trial Id

First 5 USC sect 3328 identifies a group by its conduct men who did not register with the selectiveservice If the Office of Personnel Management firstchooses to enforce the statute after their 26th birthday men cannot change their conduct to avoid thepunishments imposed by the statute The statute at issue in Selective Service System v Minnesota PIRGbarred federal student loans for men who failed to register with the Selective Service 468 US at 844 That statute was held not to be a Bill of Attainder because it allowed a grace period for student loanapplicants who had been notified that they had notregistered with the Selective Service to then registerand qualify for aid Id at 864 The statute at issue here however contains no such grace period and thepunishment is based on past immutable conduct 5 USC sect 3328 Second sect 3328 inflicts punishment that

11

was historically imposed by Bills of Attainder denial ofemployment See 468 US at 852 Finally thepunishment is imposed without a judicial trial See id at 847

Petitionersrsquo equal protection claim raises a substantial challenge to the continued viability of thisCourtrsquos decision in Rostker v Goldberg 453 US 57 That decision was premised on the then-ldquocurrentthinking as to the place of women in the ArmedServicesrdquo and the limits on the positions women could fill in the military Id at 71 Petitioners argue that Rostker should be revisited because the role of women in the military societyrsquos perception of women in themilitary and the nature of military needs havechanged drastically in the thirty years since Rostker The force of stare decisis is at its low point when theunderlying facts are so changed that they can no longer justify the decision Planned Parenthood of Se Pa v Casey 505 US 833 855 (1992) Petitionersrsquo equalprotection claim presents such a case

Since Rostker nearly all positions in the militaryhave become open to women The statutoryrestrictions on women serving on combat ships and incombat aircraft cited by Rostker as justification forexcluding women from Selective Service requirementshave ended 453 US at 76 (citing 10 USC sect 6015 (repealed 1993) 10 USC sect 8549 (repealed 1991)) Unlike in 1981 women can now serve in 93 percent ofall Army occupations See id at 81 Women in the US Army Todayrsquos Women Soldiers httpwwwarmymilwomentodayhtml (last visited Sept 20 2011) The percentage of the Army made up of women increasedfrom 98 percent in 1983 to 155 percent in 2009 Id

5

Constitution itselfrdquo while monetary relief for constitutional injuries is a judicially created remedyHubbard 809 F2d at 11 see Bivens 403 US at 396 Pet 25-26

The government relies on United States v Fausto 484 US 439 (1988) and Karahalios v National Federation of Federal Employees 489 US 527 (1989)To be sure those cases held that the CSRA precludedstatutory claims in the district courts Fausto 484 US at 455 (CSRA precludes district court jurisdictionover statutory monetary claims under the Back PayAct) Karahalios 489 US at 536 (no district courtcause of action for enforcement of rights granted by the CSRA in part in light of the CSRArsquos remedial scheme) Jurisdiction over statutory claims must be granted byCongress and ldquo[t]he classic judicial task of reconcilingmany laws enacted over time necessarily assumes that the implications of a statute may be altered by the implications of a later statuterdquo which can thereforeeliminate district court jurisdiction Fausto 484 US at 453 However jurisdiction over constitutionalclaims is ldquoinherent in the constitutionrdquo and must be expressly eliminated by Congress (assuming that they can be eliminated at all) Hubbard 809 F2d at 11 See also Fausto 484 US at 455 (Blackmun J concurring) (citing Davis v Passman 442 US 228 (1979) Carlson v Green 446 US 14 (1980))

The government suggests that the Court need notgrant review because the question presented hasalready been resolved in cases such as Bush Fausto and Karahalios Opp 8-9 That is not so As noted above those cases did not concern whether and in what circumstances a federal statute may impliedly

6

divest the district courts of jurisdiction over constitutional claims seeking equitable relief Indeed the circuit split on the question whether the CSRAprecludes district court jurisdiction over employeesrsquoequitable constitutional claims emerged after this Court decided both Bush and Fausto Hubbard and Mitchum considered Bush and Mitchum addressed Fausto Hubbard 809 F2d at 1 Mitchum 73 F3d at 34 Neither decision considered this Courtrsquos priorrulings to have resolved whether the CSRA precludesequitable constitutional claims Moreover even the Second Circuit and the First Circuit below which both decided the question favorably to the government didnot view the issue as preordained by this Courtrsquosdecisions in Bush and Fausto Dotson 398 F3d at 180 Pet App 11a-12a

C The government asserts that review should bedenied because the question whether the CSRAprecludes district court jurisdiction over equitableconstitutional claims is ldquoof limited practicalimportancerdquo and ldquoinfrequently litigatedrdquo Opp 15The government states that it is aware of only one case since Mitchum in the Third Circuit ldquoin which a federal employee has sought equitable relief in the districtcourt based on an allegedly unconstitutionalemployment-related actionrdquo Id at 15 (citing Rhodes v Holt 2007 WL 1704653 (MD Pa June 12 2007)) However in at least four other cases since Mitchum a federal employee has brought an equitableconstitutional claim against his or her employer in adistrict court in the Third Circuit1

1 Yu v US Deprsquot of Veterans Affairs 2011 US Dist LEXIS 71995 (WD Pa July 5 2011) Reynolds v Fed Bureau of Prisons

7

In sum the division among the circuit courts isdeep and longstanding and the question presentedarises often This Courtrsquos review is needed II The CSRA Provides No Remedy for Petitionersrsquo

Constitutional Claims

The government argues that the normal concernsover reading a federal statute to impliedly precludedistrict court jurisdiction over constitutional claims for equitable relief see Webster v Doe 486 US 592 (1988) are present only when the statutory schemeprovides no constitutional remedy Opp 10 Because a remedy for Petitionersrsquo claims exists under the CSRAthe government argues there is no district courtjurisdiction here Id

We disagree with the governmentrsquos premise Asexplained above the district courts are open toconstitutional claims unless Congress explicitly divests them of jurisdiction But even taken on its own terms the governmentrsquos argument is incorrect because thereis no remedy for Petitionersrsquo constitutional claimsunder the CSRA

The CSRA sends federal employeesrsquo claims to theMerit Systems Protection Board (MSPB) which lacksthe power to strike down acts of Congress and lacks jurisdiction to review employeesrsquo terminations whenthere is an absolute statutory bar against the individualrsquos employment as there is here See Brooks v Office of Pers Mgmt 59 MSPR 207 215 n7 (MSPB 1993) Travaglini v Deprsquot of Ed 18

2010 US Dist LEXIS 19090 (ED Pa Mar 2 2010) Harold v Barnhart 450 F Supp 2d 544 (ED Pa 2006) Lei v Brown 1997 US Dist LEXIS 15725 (ED Pa Oct 8 1997)

8

MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984))Indeed the government regularly asserts that theMSPB lacks jurisdiction over employeesrsquo claims whenthere is an absolute statutory bar to their employmentand consistently obtains summary judgment in the MSPB on that basis See eg Charner v OPM 2009 MSPB LEXIS 1296 (MSPB Mar 6 2009) Rivera v Deprsquot of Veterans Affairs 2008 MSPB LEXIS 2056 (MSPB Mar 31 2008) Here the First Circuit acknowledged that the MSPB cannot strike down astatute and the government does not argue otherwise Pet App 13a

Instead the government argues that the FederalCircuit could have exercised appellate review overPetitionersrsquo claims despite the lack of MSPB jurisdiction and the lack of a factual record Id at 10 However the Federal Circuit has held that its jurisdiction on appeals from the MSPB extends nofurther than the jurisdiction of the MSPB itself See Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits were not before the MSPB for decision nor are they before usrdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) For example inRosano the Federal Circuit refused to hear the merits of a constitutional free-exercise-of-religion claim because the MSPB lacked jurisdiction holding thatldquothe scope of the subject matter jurisdiction of [theFederal Circuit] is identical to the scope of thejurisdiction of the [MSPB]rdquo Id

The government notes that the Federal Circuitmade an exception to this practice in Briggs v Merit

9

Systems Protection Board 331 F3d 1307 (Fed Cir2003) Opp 13 Briggs held that ldquolack of a need to develop a factual record before adjudicationrdquo is a factorindicating that a legal issue may be justiciable for the first time on appeal 331 F3d at 1313 Petitionersrsquo case on the merits here requires developing anextensive factual record on the changing role of womenin the military to support its challenge to the continued viability of Rostker v Goldberg 453 US 57 (1981)(holding that limiting the Selective Servicersquos registration requirement to men did not violate the dueprocess clause of the Fifth Amendment) Accordinglyeven under Briggsrsquos rationale the Federal Circuit would have lacked jurisdiction to review Petitionersrsquoclaims

The government claims that this Court has heldthat a court of appeals can adjudicate a constitutionalclaim on appeal from an administrative agency even if the agency could not have considered it Opp 11However in both cases on which the governmentrelies Thunder Basin 510 US at 215 and Shalala 529 US at 23-24 the statute giving jurisdiction to the administrative body and appellate court expresslyprecluded review in the district court When Congressexpressly precludes judicial review in the districtcourts there must be judicial review on appeal from an administrative tribunal to avoid the ldquoserious constitutional questionrdquo that would arise if Congresscompletely precluded judicial review of constitutionalclaims Webster 486 US at 603 As discussed above it is undisputed here that the CSRA does not explicitlypreclude district court jurisdiction rendering Thunder Basin and Shalala inapposite

10

III Petitionersrsquo Constitutional Claims Are Substantial

Contrary to the governmentrsquos assertion Petitionersrsquo claims on the merits are substantial As for their first claim Petitioners argue and the district courtacknowledged in its initial summary judgmentdecision see Pet App 86a that 5 USC sect 3328 meets the three-part test for determining whether an act ofCongress is a Bill of Attainder See Selective Serv Sys v Minn Pub Interest Research Group 468 US 841 (1984) For a statute to be a Bill of Attainder a specific individual or group must be singled out oridentified by ldquoimmutablerdquo conduct the legislature must inflict punishment of a type historically imposed byBills of Attainder and the punishment must beimposed without a judicial trial Id

First 5 USC sect 3328 identifies a group by its conduct men who did not register with the selectiveservice If the Office of Personnel Management firstchooses to enforce the statute after their 26th birthday men cannot change their conduct to avoid thepunishments imposed by the statute The statute at issue in Selective Service System v Minnesota PIRGbarred federal student loans for men who failed to register with the Selective Service 468 US at 844 That statute was held not to be a Bill of Attainder because it allowed a grace period for student loanapplicants who had been notified that they had notregistered with the Selective Service to then registerand qualify for aid Id at 864 The statute at issue here however contains no such grace period and thepunishment is based on past immutable conduct 5 USC sect 3328 Second sect 3328 inflicts punishment that

11

was historically imposed by Bills of Attainder denial ofemployment See 468 US at 852 Finally thepunishment is imposed without a judicial trial See id at 847

Petitionersrsquo equal protection claim raises a substantial challenge to the continued viability of thisCourtrsquos decision in Rostker v Goldberg 453 US 57 That decision was premised on the then-ldquocurrentthinking as to the place of women in the ArmedServicesrdquo and the limits on the positions women could fill in the military Id at 71 Petitioners argue that Rostker should be revisited because the role of women in the military societyrsquos perception of women in themilitary and the nature of military needs havechanged drastically in the thirty years since Rostker The force of stare decisis is at its low point when theunderlying facts are so changed that they can no longer justify the decision Planned Parenthood of Se Pa v Casey 505 US 833 855 (1992) Petitionersrsquo equalprotection claim presents such a case

Since Rostker nearly all positions in the militaryhave become open to women The statutoryrestrictions on women serving on combat ships and incombat aircraft cited by Rostker as justification forexcluding women from Selective Service requirementshave ended 453 US at 76 (citing 10 USC sect 6015 (repealed 1993) 10 USC sect 8549 (repealed 1991)) Unlike in 1981 women can now serve in 93 percent ofall Army occupations See id at 81 Women in the US Army Todayrsquos Women Soldiers httpwwwarmymilwomentodayhtml (last visited Sept 20 2011) The percentage of the Army made up of women increasedfrom 98 percent in 1983 to 155 percent in 2009 Id

6

divest the district courts of jurisdiction over constitutional claims seeking equitable relief Indeed the circuit split on the question whether the CSRAprecludes district court jurisdiction over employeesrsquoequitable constitutional claims emerged after this Court decided both Bush and Fausto Hubbard and Mitchum considered Bush and Mitchum addressed Fausto Hubbard 809 F2d at 1 Mitchum 73 F3d at 34 Neither decision considered this Courtrsquos priorrulings to have resolved whether the CSRA precludesequitable constitutional claims Moreover even the Second Circuit and the First Circuit below which both decided the question favorably to the government didnot view the issue as preordained by this Courtrsquosdecisions in Bush and Fausto Dotson 398 F3d at 180 Pet App 11a-12a

C The government asserts that review should bedenied because the question whether the CSRAprecludes district court jurisdiction over equitableconstitutional claims is ldquoof limited practicalimportancerdquo and ldquoinfrequently litigatedrdquo Opp 15The government states that it is aware of only one case since Mitchum in the Third Circuit ldquoin which a federal employee has sought equitable relief in the districtcourt based on an allegedly unconstitutionalemployment-related actionrdquo Id at 15 (citing Rhodes v Holt 2007 WL 1704653 (MD Pa June 12 2007)) However in at least four other cases since Mitchum a federal employee has brought an equitableconstitutional claim against his or her employer in adistrict court in the Third Circuit1

1 Yu v US Deprsquot of Veterans Affairs 2011 US Dist LEXIS 71995 (WD Pa July 5 2011) Reynolds v Fed Bureau of Prisons

7

In sum the division among the circuit courts isdeep and longstanding and the question presentedarises often This Courtrsquos review is needed II The CSRA Provides No Remedy for Petitionersrsquo

Constitutional Claims

The government argues that the normal concernsover reading a federal statute to impliedly precludedistrict court jurisdiction over constitutional claims for equitable relief see Webster v Doe 486 US 592 (1988) are present only when the statutory schemeprovides no constitutional remedy Opp 10 Because a remedy for Petitionersrsquo claims exists under the CSRAthe government argues there is no district courtjurisdiction here Id

We disagree with the governmentrsquos premise Asexplained above the district courts are open toconstitutional claims unless Congress explicitly divests them of jurisdiction But even taken on its own terms the governmentrsquos argument is incorrect because thereis no remedy for Petitionersrsquo constitutional claimsunder the CSRA

The CSRA sends federal employeesrsquo claims to theMerit Systems Protection Board (MSPB) which lacksthe power to strike down acts of Congress and lacks jurisdiction to review employeesrsquo terminations whenthere is an absolute statutory bar against the individualrsquos employment as there is here See Brooks v Office of Pers Mgmt 59 MSPR 207 215 n7 (MSPB 1993) Travaglini v Deprsquot of Ed 18

2010 US Dist LEXIS 19090 (ED Pa Mar 2 2010) Harold v Barnhart 450 F Supp 2d 544 (ED Pa 2006) Lei v Brown 1997 US Dist LEXIS 15725 (ED Pa Oct 8 1997)

8

MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984))Indeed the government regularly asserts that theMSPB lacks jurisdiction over employeesrsquo claims whenthere is an absolute statutory bar to their employmentand consistently obtains summary judgment in the MSPB on that basis See eg Charner v OPM 2009 MSPB LEXIS 1296 (MSPB Mar 6 2009) Rivera v Deprsquot of Veterans Affairs 2008 MSPB LEXIS 2056 (MSPB Mar 31 2008) Here the First Circuit acknowledged that the MSPB cannot strike down astatute and the government does not argue otherwise Pet App 13a

Instead the government argues that the FederalCircuit could have exercised appellate review overPetitionersrsquo claims despite the lack of MSPB jurisdiction and the lack of a factual record Id at 10 However the Federal Circuit has held that its jurisdiction on appeals from the MSPB extends nofurther than the jurisdiction of the MSPB itself See Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits were not before the MSPB for decision nor are they before usrdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) For example inRosano the Federal Circuit refused to hear the merits of a constitutional free-exercise-of-religion claim because the MSPB lacked jurisdiction holding thatldquothe scope of the subject matter jurisdiction of [theFederal Circuit] is identical to the scope of thejurisdiction of the [MSPB]rdquo Id

The government notes that the Federal Circuitmade an exception to this practice in Briggs v Merit

9

Systems Protection Board 331 F3d 1307 (Fed Cir2003) Opp 13 Briggs held that ldquolack of a need to develop a factual record before adjudicationrdquo is a factorindicating that a legal issue may be justiciable for the first time on appeal 331 F3d at 1313 Petitionersrsquo case on the merits here requires developing anextensive factual record on the changing role of womenin the military to support its challenge to the continued viability of Rostker v Goldberg 453 US 57 (1981)(holding that limiting the Selective Servicersquos registration requirement to men did not violate the dueprocess clause of the Fifth Amendment) Accordinglyeven under Briggsrsquos rationale the Federal Circuit would have lacked jurisdiction to review Petitionersrsquoclaims

The government claims that this Court has heldthat a court of appeals can adjudicate a constitutionalclaim on appeal from an administrative agency even if the agency could not have considered it Opp 11However in both cases on which the governmentrelies Thunder Basin 510 US at 215 and Shalala 529 US at 23-24 the statute giving jurisdiction to the administrative body and appellate court expresslyprecluded review in the district court When Congressexpressly precludes judicial review in the districtcourts there must be judicial review on appeal from an administrative tribunal to avoid the ldquoserious constitutional questionrdquo that would arise if Congresscompletely precluded judicial review of constitutionalclaims Webster 486 US at 603 As discussed above it is undisputed here that the CSRA does not explicitlypreclude district court jurisdiction rendering Thunder Basin and Shalala inapposite

10

III Petitionersrsquo Constitutional Claims Are Substantial

Contrary to the governmentrsquos assertion Petitionersrsquo claims on the merits are substantial As for their first claim Petitioners argue and the district courtacknowledged in its initial summary judgmentdecision see Pet App 86a that 5 USC sect 3328 meets the three-part test for determining whether an act ofCongress is a Bill of Attainder See Selective Serv Sys v Minn Pub Interest Research Group 468 US 841 (1984) For a statute to be a Bill of Attainder a specific individual or group must be singled out oridentified by ldquoimmutablerdquo conduct the legislature must inflict punishment of a type historically imposed byBills of Attainder and the punishment must beimposed without a judicial trial Id

First 5 USC sect 3328 identifies a group by its conduct men who did not register with the selectiveservice If the Office of Personnel Management firstchooses to enforce the statute after their 26th birthday men cannot change their conduct to avoid thepunishments imposed by the statute The statute at issue in Selective Service System v Minnesota PIRGbarred federal student loans for men who failed to register with the Selective Service 468 US at 844 That statute was held not to be a Bill of Attainder because it allowed a grace period for student loanapplicants who had been notified that they had notregistered with the Selective Service to then registerand qualify for aid Id at 864 The statute at issue here however contains no such grace period and thepunishment is based on past immutable conduct 5 USC sect 3328 Second sect 3328 inflicts punishment that

11

was historically imposed by Bills of Attainder denial ofemployment See 468 US at 852 Finally thepunishment is imposed without a judicial trial See id at 847

Petitionersrsquo equal protection claim raises a substantial challenge to the continued viability of thisCourtrsquos decision in Rostker v Goldberg 453 US 57 That decision was premised on the then-ldquocurrentthinking as to the place of women in the ArmedServicesrdquo and the limits on the positions women could fill in the military Id at 71 Petitioners argue that Rostker should be revisited because the role of women in the military societyrsquos perception of women in themilitary and the nature of military needs havechanged drastically in the thirty years since Rostker The force of stare decisis is at its low point when theunderlying facts are so changed that they can no longer justify the decision Planned Parenthood of Se Pa v Casey 505 US 833 855 (1992) Petitionersrsquo equalprotection claim presents such a case

Since Rostker nearly all positions in the militaryhave become open to women The statutoryrestrictions on women serving on combat ships and incombat aircraft cited by Rostker as justification forexcluding women from Selective Service requirementshave ended 453 US at 76 (citing 10 USC sect 6015 (repealed 1993) 10 USC sect 8549 (repealed 1991)) Unlike in 1981 women can now serve in 93 percent ofall Army occupations See id at 81 Women in the US Army Todayrsquos Women Soldiers httpwwwarmymilwomentodayhtml (last visited Sept 20 2011) The percentage of the Army made up of women increasedfrom 98 percent in 1983 to 155 percent in 2009 Id

7

In sum the division among the circuit courts isdeep and longstanding and the question presentedarises often This Courtrsquos review is needed II The CSRA Provides No Remedy for Petitionersrsquo

Constitutional Claims

The government argues that the normal concernsover reading a federal statute to impliedly precludedistrict court jurisdiction over constitutional claims for equitable relief see Webster v Doe 486 US 592 (1988) are present only when the statutory schemeprovides no constitutional remedy Opp 10 Because a remedy for Petitionersrsquo claims exists under the CSRAthe government argues there is no district courtjurisdiction here Id

We disagree with the governmentrsquos premise Asexplained above the district courts are open toconstitutional claims unless Congress explicitly divests them of jurisdiction But even taken on its own terms the governmentrsquos argument is incorrect because thereis no remedy for Petitionersrsquo constitutional claimsunder the CSRA

The CSRA sends federal employeesrsquo claims to theMerit Systems Protection Board (MSPB) which lacksthe power to strike down acts of Congress and lacks jurisdiction to review employeesrsquo terminations whenthere is an absolute statutory bar against the individualrsquos employment as there is here See Brooks v Office of Pers Mgmt 59 MSPR 207 215 n7 (MSPB 1993) Travaglini v Deprsquot of Ed 18

2010 US Dist LEXIS 19090 (ED Pa Mar 2 2010) Harold v Barnhart 450 F Supp 2d 544 (ED Pa 2006) Lei v Brown 1997 US Dist LEXIS 15725 (ED Pa Oct 8 1997)

8

MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984))Indeed the government regularly asserts that theMSPB lacks jurisdiction over employeesrsquo claims whenthere is an absolute statutory bar to their employmentand consistently obtains summary judgment in the MSPB on that basis See eg Charner v OPM 2009 MSPB LEXIS 1296 (MSPB Mar 6 2009) Rivera v Deprsquot of Veterans Affairs 2008 MSPB LEXIS 2056 (MSPB Mar 31 2008) Here the First Circuit acknowledged that the MSPB cannot strike down astatute and the government does not argue otherwise Pet App 13a

Instead the government argues that the FederalCircuit could have exercised appellate review overPetitionersrsquo claims despite the lack of MSPB jurisdiction and the lack of a factual record Id at 10 However the Federal Circuit has held that its jurisdiction on appeals from the MSPB extends nofurther than the jurisdiction of the MSPB itself See Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits were not before the MSPB for decision nor are they before usrdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) For example inRosano the Federal Circuit refused to hear the merits of a constitutional free-exercise-of-religion claim because the MSPB lacked jurisdiction holding thatldquothe scope of the subject matter jurisdiction of [theFederal Circuit] is identical to the scope of thejurisdiction of the [MSPB]rdquo Id

The government notes that the Federal Circuitmade an exception to this practice in Briggs v Merit

9

Systems Protection Board 331 F3d 1307 (Fed Cir2003) Opp 13 Briggs held that ldquolack of a need to develop a factual record before adjudicationrdquo is a factorindicating that a legal issue may be justiciable for the first time on appeal 331 F3d at 1313 Petitionersrsquo case on the merits here requires developing anextensive factual record on the changing role of womenin the military to support its challenge to the continued viability of Rostker v Goldberg 453 US 57 (1981)(holding that limiting the Selective Servicersquos registration requirement to men did not violate the dueprocess clause of the Fifth Amendment) Accordinglyeven under Briggsrsquos rationale the Federal Circuit would have lacked jurisdiction to review Petitionersrsquoclaims

The government claims that this Court has heldthat a court of appeals can adjudicate a constitutionalclaim on appeal from an administrative agency even if the agency could not have considered it Opp 11However in both cases on which the governmentrelies Thunder Basin 510 US at 215 and Shalala 529 US at 23-24 the statute giving jurisdiction to the administrative body and appellate court expresslyprecluded review in the district court When Congressexpressly precludes judicial review in the districtcourts there must be judicial review on appeal from an administrative tribunal to avoid the ldquoserious constitutional questionrdquo that would arise if Congresscompletely precluded judicial review of constitutionalclaims Webster 486 US at 603 As discussed above it is undisputed here that the CSRA does not explicitlypreclude district court jurisdiction rendering Thunder Basin and Shalala inapposite

10

III Petitionersrsquo Constitutional Claims Are Substantial

Contrary to the governmentrsquos assertion Petitionersrsquo claims on the merits are substantial As for their first claim Petitioners argue and the district courtacknowledged in its initial summary judgmentdecision see Pet App 86a that 5 USC sect 3328 meets the three-part test for determining whether an act ofCongress is a Bill of Attainder See Selective Serv Sys v Minn Pub Interest Research Group 468 US 841 (1984) For a statute to be a Bill of Attainder a specific individual or group must be singled out oridentified by ldquoimmutablerdquo conduct the legislature must inflict punishment of a type historically imposed byBills of Attainder and the punishment must beimposed without a judicial trial Id

First 5 USC sect 3328 identifies a group by its conduct men who did not register with the selectiveservice If the Office of Personnel Management firstchooses to enforce the statute after their 26th birthday men cannot change their conduct to avoid thepunishments imposed by the statute The statute at issue in Selective Service System v Minnesota PIRGbarred federal student loans for men who failed to register with the Selective Service 468 US at 844 That statute was held not to be a Bill of Attainder because it allowed a grace period for student loanapplicants who had been notified that they had notregistered with the Selective Service to then registerand qualify for aid Id at 864 The statute at issue here however contains no such grace period and thepunishment is based on past immutable conduct 5 USC sect 3328 Second sect 3328 inflicts punishment that

11

was historically imposed by Bills of Attainder denial ofemployment See 468 US at 852 Finally thepunishment is imposed without a judicial trial See id at 847

Petitionersrsquo equal protection claim raises a substantial challenge to the continued viability of thisCourtrsquos decision in Rostker v Goldberg 453 US 57 That decision was premised on the then-ldquocurrentthinking as to the place of women in the ArmedServicesrdquo and the limits on the positions women could fill in the military Id at 71 Petitioners argue that Rostker should be revisited because the role of women in the military societyrsquos perception of women in themilitary and the nature of military needs havechanged drastically in the thirty years since Rostker The force of stare decisis is at its low point when theunderlying facts are so changed that they can no longer justify the decision Planned Parenthood of Se Pa v Casey 505 US 833 855 (1992) Petitionersrsquo equalprotection claim presents such a case

Since Rostker nearly all positions in the militaryhave become open to women The statutoryrestrictions on women serving on combat ships and incombat aircraft cited by Rostker as justification forexcluding women from Selective Service requirementshave ended 453 US at 76 (citing 10 USC sect 6015 (repealed 1993) 10 USC sect 8549 (repealed 1991)) Unlike in 1981 women can now serve in 93 percent ofall Army occupations See id at 81 Women in the US Army Todayrsquos Women Soldiers httpwwwarmymilwomentodayhtml (last visited Sept 20 2011) The percentage of the Army made up of women increasedfrom 98 percent in 1983 to 155 percent in 2009 Id

8

MSPR 127 137-38 (MSPB 1983) affrsquod as modified 23 MSPR 417 419 (MSPB 1984))Indeed the government regularly asserts that theMSPB lacks jurisdiction over employeesrsquo claims whenthere is an absolute statutory bar to their employmentand consistently obtains summary judgment in the MSPB on that basis See eg Charner v OPM 2009 MSPB LEXIS 1296 (MSPB Mar 6 2009) Rivera v Deprsquot of Veterans Affairs 2008 MSPB LEXIS 2056 (MSPB Mar 31 2008) Here the First Circuit acknowledged that the MSPB cannot strike down astatute and the government does not argue otherwise Pet App 13a

Instead the government argues that the FederalCircuit could have exercised appellate review overPetitionersrsquo claims despite the lack of MSPB jurisdiction and the lack of a factual record Id at 10 However the Federal Circuit has held that its jurisdiction on appeals from the MSPB extends nofurther than the jurisdiction of the MSPB itself See Perez v Merit Sys Prot Bd 931 F2d 853 855 (FedCir 1991) (ldquoSince the MSPB had no jurisdiction themerits were not before the MSPB for decision nor are they before usrdquo) Rosano v Deprsquot of the Navy 699 F2d 1315 1318 (Fed Cir 1983) For example inRosano the Federal Circuit refused to hear the merits of a constitutional free-exercise-of-religion claim because the MSPB lacked jurisdiction holding thatldquothe scope of the subject matter jurisdiction of [theFederal Circuit] is identical to the scope of thejurisdiction of the [MSPB]rdquo Id

The government notes that the Federal Circuitmade an exception to this practice in Briggs v Merit

9

Systems Protection Board 331 F3d 1307 (Fed Cir2003) Opp 13 Briggs held that ldquolack of a need to develop a factual record before adjudicationrdquo is a factorindicating that a legal issue may be justiciable for the first time on appeal 331 F3d at 1313 Petitionersrsquo case on the merits here requires developing anextensive factual record on the changing role of womenin the military to support its challenge to the continued viability of Rostker v Goldberg 453 US 57 (1981)(holding that limiting the Selective Servicersquos registration requirement to men did not violate the dueprocess clause of the Fifth Amendment) Accordinglyeven under Briggsrsquos rationale the Federal Circuit would have lacked jurisdiction to review Petitionersrsquoclaims

The government claims that this Court has heldthat a court of appeals can adjudicate a constitutionalclaim on appeal from an administrative agency even if the agency could not have considered it Opp 11However in both cases on which the governmentrelies Thunder Basin 510 US at 215 and Shalala 529 US at 23-24 the statute giving jurisdiction to the administrative body and appellate court expresslyprecluded review in the district court When Congressexpressly precludes judicial review in the districtcourts there must be judicial review on appeal from an administrative tribunal to avoid the ldquoserious constitutional questionrdquo that would arise if Congresscompletely precluded judicial review of constitutionalclaims Webster 486 US at 603 As discussed above it is undisputed here that the CSRA does not explicitlypreclude district court jurisdiction rendering Thunder Basin and Shalala inapposite

10

III Petitionersrsquo Constitutional Claims Are Substantial

Contrary to the governmentrsquos assertion Petitionersrsquo claims on the merits are substantial As for their first claim Petitioners argue and the district courtacknowledged in its initial summary judgmentdecision see Pet App 86a that 5 USC sect 3328 meets the three-part test for determining whether an act ofCongress is a Bill of Attainder See Selective Serv Sys v Minn Pub Interest Research Group 468 US 841 (1984) For a statute to be a Bill of Attainder a specific individual or group must be singled out oridentified by ldquoimmutablerdquo conduct the legislature must inflict punishment of a type historically imposed byBills of Attainder and the punishment must beimposed without a judicial trial Id

First 5 USC sect 3328 identifies a group by its conduct men who did not register with the selectiveservice If the Office of Personnel Management firstchooses to enforce the statute after their 26th birthday men cannot change their conduct to avoid thepunishments imposed by the statute The statute at issue in Selective Service System v Minnesota PIRGbarred federal student loans for men who failed to register with the Selective Service 468 US at 844 That statute was held not to be a Bill of Attainder because it allowed a grace period for student loanapplicants who had been notified that they had notregistered with the Selective Service to then registerand qualify for aid Id at 864 The statute at issue here however contains no such grace period and thepunishment is based on past immutable conduct 5 USC sect 3328 Second sect 3328 inflicts punishment that

11

was historically imposed by Bills of Attainder denial ofemployment See 468 US at 852 Finally thepunishment is imposed without a judicial trial See id at 847

Petitionersrsquo equal protection claim raises a substantial challenge to the continued viability of thisCourtrsquos decision in Rostker v Goldberg 453 US 57 That decision was premised on the then-ldquocurrentthinking as to the place of women in the ArmedServicesrdquo and the limits on the positions women could fill in the military Id at 71 Petitioners argue that Rostker should be revisited because the role of women in the military societyrsquos perception of women in themilitary and the nature of military needs havechanged drastically in the thirty years since Rostker The force of stare decisis is at its low point when theunderlying facts are so changed that they can no longer justify the decision Planned Parenthood of Se Pa v Casey 505 US 833 855 (1992) Petitionersrsquo equalprotection claim presents such a case

Since Rostker nearly all positions in the militaryhave become open to women The statutoryrestrictions on women serving on combat ships and incombat aircraft cited by Rostker as justification forexcluding women from Selective Service requirementshave ended 453 US at 76 (citing 10 USC sect 6015 (repealed 1993) 10 USC sect 8549 (repealed 1991)) Unlike in 1981 women can now serve in 93 percent ofall Army occupations See id at 81 Women in the US Army Todayrsquos Women Soldiers httpwwwarmymilwomentodayhtml (last visited Sept 20 2011) The percentage of the Army made up of women increasedfrom 98 percent in 1983 to 155 percent in 2009 Id

9

Systems Protection Board 331 F3d 1307 (Fed Cir2003) Opp 13 Briggs held that ldquolack of a need to develop a factual record before adjudicationrdquo is a factorindicating that a legal issue may be justiciable for the first time on appeal 331 F3d at 1313 Petitionersrsquo case on the merits here requires developing anextensive factual record on the changing role of womenin the military to support its challenge to the continued viability of Rostker v Goldberg 453 US 57 (1981)(holding that limiting the Selective Servicersquos registration requirement to men did not violate the dueprocess clause of the Fifth Amendment) Accordinglyeven under Briggsrsquos rationale the Federal Circuit would have lacked jurisdiction to review Petitionersrsquoclaims

The government claims that this Court has heldthat a court of appeals can adjudicate a constitutionalclaim on appeal from an administrative agency even if the agency could not have considered it Opp 11However in both cases on which the governmentrelies Thunder Basin 510 US at 215 and Shalala 529 US at 23-24 the statute giving jurisdiction to the administrative body and appellate court expresslyprecluded review in the district court When Congressexpressly precludes judicial review in the districtcourts there must be judicial review on appeal from an administrative tribunal to avoid the ldquoserious constitutional questionrdquo that would arise if Congresscompletely precluded judicial review of constitutionalclaims Webster 486 US at 603 As discussed above it is undisputed here that the CSRA does not explicitlypreclude district court jurisdiction rendering Thunder Basin and Shalala inapposite

10

III Petitionersrsquo Constitutional Claims Are Substantial

Contrary to the governmentrsquos assertion Petitionersrsquo claims on the merits are substantial As for their first claim Petitioners argue and the district courtacknowledged in its initial summary judgmentdecision see Pet App 86a that 5 USC sect 3328 meets the three-part test for determining whether an act ofCongress is a Bill of Attainder See Selective Serv Sys v Minn Pub Interest Research Group 468 US 841 (1984) For a statute to be a Bill of Attainder a specific individual or group must be singled out oridentified by ldquoimmutablerdquo conduct the legislature must inflict punishment of a type historically imposed byBills of Attainder and the punishment must beimposed without a judicial trial Id

First 5 USC sect 3328 identifies a group by its conduct men who did not register with the selectiveservice If the Office of Personnel Management firstchooses to enforce the statute after their 26th birthday men cannot change their conduct to avoid thepunishments imposed by the statute The statute at issue in Selective Service System v Minnesota PIRGbarred federal student loans for men who failed to register with the Selective Service 468 US at 844 That statute was held not to be a Bill of Attainder because it allowed a grace period for student loanapplicants who had been notified that they had notregistered with the Selective Service to then registerand qualify for aid Id at 864 The statute at issue here however contains no such grace period and thepunishment is based on past immutable conduct 5 USC sect 3328 Second sect 3328 inflicts punishment that

11

was historically imposed by Bills of Attainder denial ofemployment See 468 US at 852 Finally thepunishment is imposed without a judicial trial See id at 847

Petitionersrsquo equal protection claim raises a substantial challenge to the continued viability of thisCourtrsquos decision in Rostker v Goldberg 453 US 57 That decision was premised on the then-ldquocurrentthinking as to the place of women in the ArmedServicesrdquo and the limits on the positions women could fill in the military Id at 71 Petitioners argue that Rostker should be revisited because the role of women in the military societyrsquos perception of women in themilitary and the nature of military needs havechanged drastically in the thirty years since Rostker The force of stare decisis is at its low point when theunderlying facts are so changed that they can no longer justify the decision Planned Parenthood of Se Pa v Casey 505 US 833 855 (1992) Petitionersrsquo equalprotection claim presents such a case

Since Rostker nearly all positions in the militaryhave become open to women The statutoryrestrictions on women serving on combat ships and incombat aircraft cited by Rostker as justification forexcluding women from Selective Service requirementshave ended 453 US at 76 (citing 10 USC sect 6015 (repealed 1993) 10 USC sect 8549 (repealed 1991)) Unlike in 1981 women can now serve in 93 percent ofall Army occupations See id at 81 Women in the US Army Todayrsquos Women Soldiers httpwwwarmymilwomentodayhtml (last visited Sept 20 2011) The percentage of the Army made up of women increasedfrom 98 percent in 1983 to 155 percent in 2009 Id

10

III Petitionersrsquo Constitutional Claims Are Substantial

Contrary to the governmentrsquos assertion Petitionersrsquo claims on the merits are substantial As for their first claim Petitioners argue and the district courtacknowledged in its initial summary judgmentdecision see Pet App 86a that 5 USC sect 3328 meets the three-part test for determining whether an act ofCongress is a Bill of Attainder See Selective Serv Sys v Minn Pub Interest Research Group 468 US 841 (1984) For a statute to be a Bill of Attainder a specific individual or group must be singled out oridentified by ldquoimmutablerdquo conduct the legislature must inflict punishment of a type historically imposed byBills of Attainder and the punishment must beimposed without a judicial trial Id

First 5 USC sect 3328 identifies a group by its conduct men who did not register with the selectiveservice If the Office of Personnel Management firstchooses to enforce the statute after their 26th birthday men cannot change their conduct to avoid thepunishments imposed by the statute The statute at issue in Selective Service System v Minnesota PIRGbarred federal student loans for men who failed to register with the Selective Service 468 US at 844 That statute was held not to be a Bill of Attainder because it allowed a grace period for student loanapplicants who had been notified that they had notregistered with the Selective Service to then registerand qualify for aid Id at 864 The statute at issue here however contains no such grace period and thepunishment is based on past immutable conduct 5 USC sect 3328 Second sect 3328 inflicts punishment that

11

was historically imposed by Bills of Attainder denial ofemployment See 468 US at 852 Finally thepunishment is imposed without a judicial trial See id at 847

Petitionersrsquo equal protection claim raises a substantial challenge to the continued viability of thisCourtrsquos decision in Rostker v Goldberg 453 US 57 That decision was premised on the then-ldquocurrentthinking as to the place of women in the ArmedServicesrdquo and the limits on the positions women could fill in the military Id at 71 Petitioners argue that Rostker should be revisited because the role of women in the military societyrsquos perception of women in themilitary and the nature of military needs havechanged drastically in the thirty years since Rostker The force of stare decisis is at its low point when theunderlying facts are so changed that they can no longer justify the decision Planned Parenthood of Se Pa v Casey 505 US 833 855 (1992) Petitionersrsquo equalprotection claim presents such a case

Since Rostker nearly all positions in the militaryhave become open to women The statutoryrestrictions on women serving on combat ships and incombat aircraft cited by Rostker as justification forexcluding women from Selective Service requirementshave ended 453 US at 76 (citing 10 USC sect 6015 (repealed 1993) 10 USC sect 8549 (repealed 1991)) Unlike in 1981 women can now serve in 93 percent ofall Army occupations See id at 81 Women in the US Army Todayrsquos Women Soldiers httpwwwarmymilwomentodayhtml (last visited Sept 20 2011) The percentage of the Army made up of women increasedfrom 98 percent in 1983 to 155 percent in 2009 Id

11

was historically imposed by Bills of Attainder denial ofemployment See 468 US at 852 Finally thepunishment is imposed without a judicial trial See id at 847

Petitionersrsquo equal protection claim raises a substantial challenge to the continued viability of thisCourtrsquos decision in Rostker v Goldberg 453 US 57 That decision was premised on the then-ldquocurrentthinking as to the place of women in the ArmedServicesrdquo and the limits on the positions women could fill in the military Id at 71 Petitioners argue that Rostker should be revisited because the role of women in the military societyrsquos perception of women in themilitary and the nature of military needs havechanged drastically in the thirty years since Rostker The force of stare decisis is at its low point when theunderlying facts are so changed that they can no longer justify the decision Planned Parenthood of Se Pa v Casey 505 US 833 855 (1992) Petitionersrsquo equalprotection claim presents such a case

Since Rostker nearly all positions in the militaryhave become open to women The statutoryrestrictions on women serving on combat ships and incombat aircraft cited by Rostker as justification forexcluding women from Selective Service requirementshave ended 453 US at 76 (citing 10 USC sect 6015 (repealed 1993) 10 USC sect 8549 (repealed 1991)) Unlike in 1981 women can now serve in 93 percent ofall Army occupations See id at 81 Women in the US Army Todayrsquos Women Soldiers httpwwwarmymilwomentodayhtml (last visited Sept 20 2011) The percentage of the Army made up of women increasedfrom 98 percent in 1983 to 155 percent in 2009 Id

12

Having explained the substantiality of Petitionersrsquoclaims on the merits it nevertheless bears emphasisthat the merits are two steps removed from the issuenow before the Court at the certiorari stage whether to resolve a longstanding circuit split on an importantjurisdictional question If the Court grants review itwill decide that important jurisdictional question And if the Court rules that the district court had jurisdiction over Petitionersrsquo claims it will remand tothe First Circuit for a decision on those claims For now however the governmentrsquos diversionary foray into the merits puts the cart well before the horse

CONCLUSION The petition for a writ of certiorari should be

granted Respectfully submitted

Harvey A Schwartz Leah M Nicholls (Counsel of Record) Brian Wolfman Rodgers Powers amp Institute for Public Schwartz LLP Representation18 Tremont St Georgetown UniversityBoston MA 02108 Law Center (617) 742-7010 600 New Jersey Ave NWharveytheemployment Suite 312 lawyerscom Washington DC 20001

(202) 662-9535

Counsel for Petitioners

September 2011