Elgin v. U.S. Department of the Treasury

United States Court of Appeals
For the First Circuit

No. 10-1302

MICHAEL B. ELGIN; AARON LAWSON; HENRY TUCKER;
CHRISTON COLBY, on behalf of themselves and similarly
situated men throughout the United States,

Plaintiffs, Appellants,

v.

U.S. DEPARTMENT OF THE TREASURY;
U.S. DEPARTMENT OF THE INTERIOR; UNITED STATES,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before
Boudin, Stahl and Howard,
Circuit Judges.

Harvey A. Schwartz with whom Rodgers, Powers & Schwartz was
on brief for appellants.
Jeffrey Clair, Civil Division, Department of Justice, with
whom Michael S. Raab, Civil Division, Department of Justice, Tony
West, Assistant Attorney General, and Carmen Ortiz, United States
Attorney, were on brief for appellees.

April 8, 2011
 BOUDIN, Circuit Judge. A federal statute bars employment

in the Executive Branch of citizens and resident aliens who were

required to register for the draft with the Selective Service

System and who "knowingly and willfully" did not do so before age

twenty-six. In the district court, four plaintiffs, who are male

United States citizens over age twenty-six, sought to challenge

this statutory bar on constitutional grounds, failed on the merits,

and now appeal.

The statutory bar reads as follows:

An individual--

(1) who was born after December 31,
1959, and is or was required to
register under section 3 of the
Military Selective Service Act (50
U.S.C. App. 453); and

(2) who is not so registered or
knowingly and willfully did not so
register before the requirement
terminated or became inapplicable to
the individual,

shall be ineligible for appointment to a
position in an Executive agency.

5 U.S.C. § 3328(a) (2006).1 Section 3 of the Military Selective

Service Act, 62 Stat. 604, 605, as amended, 50 U.S.C. app. § 453

(2006), empowers the President to require every male citizen and

male resident alien between the ages of eighteen and twenty-six to

1
"Executive agency" is defined to mean an "Executive
department, a Government corporation, and an independent
establishment." 5 U.S.C. § 105.

-2-
register for the draft. In 1980, President Carter reinstituted the

registration requirements for young men. Proclamation No. 4771,

3 C.F.R. 82 (1981), reprinted as amended in 50 U.S.C. app. § 453

app. at 59-60.

The Office of Personnel Management ("OPM"), which manages

civil service employment in the Executive Branch, has adopted

corresponding regulations. 5 C.F.R. §§ 300.701-.707 (2010). These

regulations provide that a civil service employee who was required

to register

will be terminated by his agency under the
authority of the statute and these regulations
if he has not registered as required, unless
he registers or unless, if no longer eligible
to register, OPM determines in response to his
explanation that his failure to register was
neither knowing nor willful.

Id. § 300.707.

Three of the plaintiffs in this case were discharged by

their federal agencies when it was discovered that they had not

registered although required to do so; the fourth resigned when

confronted with his failure to register and says that his

resignation was forced by the statutory bar. None of the four

presently challenges the premise that his failure to register was

knowing or willful, and none sought to pursue to the end the

statutory remedies prescribed for civil service employees who

dispute their removals.

-3-
 Instead, the plaintiffs brought an original action in the

district court seeking reinstatement and claiming that the

statutory bar is unconstitutional; the grounds asserted are that it

is both a forbidden bill of attainder under Article I, Section 9,

Clause 3 of the Constitution and, because it applies to men but not

women, an unlawful discrimination under the equal protection

component of the Fifth Amendment. The latter claim has already

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

57 (1981), but the plaintiffs may intend to ask the Court to

revisit the ruling.

In the district court, the government asserted that the

claims were barred because the plaintiffs had a statutory route to

dispute their removals or forced resignation and that this route

was intended by Congress to be exclusive for cases covered by the

statutory remedy. This statutory remedy, which will be described

in more detail hereafter, ordinarily leads through the Merit

Systems Protection Board ("MSPB" or "Board") and, on judicial

review, to the U.S. Court of Appeals for the Federal Circuit.

Three of the four plaintiffs did not pursue this avenue; one did

but abandoned it after an adverse decision by the MSPB

administrative law judge.

The district court declined to dismiss the action on

jurisdictional grounds, initially sided with the plaintiffs on the

bill of attainder issue, and ultimately reversed ground and decided

-4-
against the plaintiffs on their constitutional claims. Elgin v.

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

F. Supp. 2d 187 (D. Mass. 2010). The plaintiffs now seek review in

this court; the government continues to argue both that the

district court had no jurisdiction and that, if it did, the

statutory bar is constitutional. An objection to subject matter

jurisdiction takes priority, and we begin (and end) with that

issue.

Ordinarily, and as a default remedy, a district court has

authority as a federal court of general jurisdiction--subject to

various limitations--to consider claims against federal government

officials that they are acting unconstitutionally and should be

enjoined. See 28 U.S.C. § 1331 (2006); Larson v. Domestic &

Foreign Commerce Corp., 337 U.S. 682, 701-02 (1949). Suits against

the federal government itself or its departments--the plaintiffs'

target here--are complicated by sovereign immunity considerations,

see, e.g., FDIC v. Meyer, 510 U.S. 471, 475 (1994), but the

government has invoked no such defense in this case, see 5 U.S.C.

§ 702; Edelman v. Jordan, 415 U.S. 651, 668 (1974).

Instead, the government argues the exclusive remedy for

the removal or forced resignation of the four plaintiffs is

provided by the Civil Service Reform Act ("CSRA"), Pub. L. No. 95-

454, 92 Stat. 1111 (1978) (codified as amended in scattered

sections of 5 U.S.C.). The CSRA scheme, set forth in Title 5,

-5-
Chapter 75, Subchapter II and augmented by regulations, allows

certain employees in the civil service--including those (such as

the plaintiffs) in the competitive service--to seek review if they

are removed "for such cause as will promote the efficiency of the

service," 5 U.S.C. § 7513(a); the route prescribed is by appeal to

the MSPB and, if dissatisfied with the result, appeal to the

Federal Circuit, whose decisions in turn are reviewable by the

Supreme Court.2

Although the CSRA does not in terms describe this scheme

as exclusive of other remedies, Congress intended the scheme--at

least where it applies and provides a mechanism for administrative

and judicial review and relief--to be exclusive of ordinary

district court actions to challenge a removal. The Supreme Court

has suggested that this is so, United States v. Fausto, 484 U.S.

439, 443-55 (1988); see also Bush v. Lucas, 462 U.S. 367, 388-89

(1983); we have recognized it to be so, Berrios v. Dep't of the

Army, 884 F.2d 28, 31 (1st Cir. 1989); and the legislative history

bears out this intention, S. Rep. No. 95-969, at 9-10, 53, 63

(1978), reprinted in 1978 U.S.C.C.A.N. 2723, 2731-32, 2775, 2785.

The plaintiffs do not contest the view that the statutory

route, where it applies, is the exclusive remedy for an employee

2
See 5 U.S.C. §§ 7511-7514, 7701-7703; 5 C.F.R. §§ 752.401-
.406, 1201.3, 1201.120. The remedy extends to "forced
resignations"--the claim made by one of the plaintiffs here--which
are treated as constructive "removals." See Carrow v. MSPB, 626
F.3d 1348, 1352-53 (Fed. Cir. 2010).

-6-
challenging removal; but they argue that the government has taken

inconsistent positions and that, in any event, for various reasons

the statutory remedy is not available to them. However, the

statutory route does in fact give the plaintiffs a route to direct

review of their constitutional claims by an Article III court;

Congress intended that route to be exclusive in removal cases; and,

despite some confusion in the precedents, both literal language and

Congress' policy require that result.

First, the plaintiffs suggest that the government's

objection is foreclosed because (a) it resisted efforts by one of

the plaintiffs to raise this very kind of claim through the MSPB

route, and (b) it has raised the subject matter jurisdiction claim

only on reconsideration in the district court. But, as it turns

out, the government is within its rights to raise the objection:

subject matter jurisdiction claims are not waivable and may be

raised for the first time even on direct appeal, Fed. R. Civ. P.

12(h)(3); United States v. Cotton, 535 U.S. 625, 630 (2002).

Failure to exhaust administrative remedies is a waivable

objection. Global NAPs, Inc. v. Verizon New Eng. Inc., 603 F.3d

71, 85 (1st Cir. 2010). But, if the CSRA remedy is available and

intended to be exclusive, it does not prescribe some administrative

step required before resorting to district court, e.g., Woodford v.

Ngo, 548 U.S. 81, 88-89 (2006); rather, the remedy displaces the

plenary district court action entirely, just as a statute

-7-
channeling agency review to a circuit court displaces a direct

review action in the district court. See Whitman v. Dep't of

Transp., 547 U.S. 512, 513-14 (2006) (per curiam).

Second, the remedy in Chapter 75, Subchapter II applies

to removals "for such cause as will promote the efficiency of the

service," 5 U.S.C. § 7513(a), and the question arises whether

removal on account of the statutory bar falls in that category.

Arguing that section 7513(a) is limited to misconduct, the

plaintiffs cite Supreme Court language stating that "Chapter 75 of

the Act governs adverse action taken against employees for the

'efficiency of the service,' which includes action of the type

taken here, based on misconduct," Fausto, 484 U.S. at 446.

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

The CSRA is a successor to earlier civil service

statutes, including the Lloyd-La Follette Act, which created the

first general statutory protection for civil servants, see Arnett

v. Kennedy, 416 U.S. 134, 149-50 (1974), and used the same

"efficiency of [the] service" phrase as the substantive standard

for removal, see Act of Aug. 24, 1912, ch. 389, § 6, 37 Stat. 539,

555 (repealed 1978). That standard was understood to include

removals that were based on disqualifying conditions that existed

before the employees were hired, and Congress was aware of and

intended to adopt this interpretation.

-8-
 Thus, prior to the CSRA's enactment, the Senate Committee

on Governmental Affairs noted that for covered civil service

employees, "existing law provides that an individual may be removed

only for such cause as will promote the efficiency of the service."

S. Rep. No. 95-969, at 9 (1978), reprinted in 1978 U.S.C.C.A.N.

2723, 2731. The committee reported that in 1976, 17,157 federal

employees had been dismissed under that standard, and it listed

eight different categories, including 240 "[r]emoved because of

some condition that existed before they were hired." Id. In

recommending section 7513, the committee said that it did not

intend any substantive change to the existing law permitting

removals only for "efficiency of the service." Id. at 50,

reprinted in 1978 U.S.C.C.A.N. at 2772.

OPM shares this view of the "efficiency of the service"

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

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

"removal," 5 C.F.R. § 731.203; the regulations state that a

suitability action may be taken only to "protect the integrity or

promote the efficiency of the service," id. § 731.201, which

includes "[a]ny statutory or regulatory bar which prevents the

lawful employment of the person involved in the position in

question," id. § 731.202(b)(8). See also id. § 731.501(a) (right

to appeal suitability action to the MSPB).

-9-
 Third, the plaintiffs question whether the removals in

this case were intended as removals for the "efficiency of the

service." The removal notices, it appears, cited the statutory

bar, 5 U.S.C. § 3328--not Chapter 75, Subchapter II and the

"efficiency of the service" phrase--but the legislative history and

regulations make clear that a removal because of a statutory bar is

one for the "efficiency of the service," thereby triggering the

opportunity--and obligation--to use the MSPB procedures and to seek

judicial review in the Federal Circuit.

The plaintiffs' contrary suggestion rests on a misreading

of Department of the Navy v. Egan, 484 U.S. 518 (1988). There, the

Court relied on the ground given in a removal notice to conclude

that the action was taken under the "efficiency of the service"

standard and not on grounds of national security. Id. at 522 &

n.4, 523. A national security removal is explicitly exempted from

all "other statutes" and review is narrowly limited. 5 U.S.C.

§ 7532; see id. § 7512(A) (exempting a section 7532 removal); Egan,

484 U.S. at 525-26. Here, no such statutory exemption applies, and

the notice merely particularizes the "efficiency of the service"

basis for the removal.

Fourth, the MSPB has suggested that a person who was

wrongly hired in the face of an absolute statutory bar was never an

"employee" at all because the appointment was void ab initio, and

therefore, when the error is discovered, the person removed is not

-10-
a former "employee" who can invoke the CSRA. E.g., Hope v. Dep't

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

"reasoning," see Travaglini v. Dep't of Educ., 18 M.S.P.R. 127,

132-37 (1983), aff'd as modified, 23 M.S.P.R. 417 (1984), underlies

statements by the Board, occasionally noted but not endorsed by the

Federal Circuit,3 that a removal because of an absolute statutory

bar is outside the Board's authority under the CSRA because the

employee should not have been hired in the first place.

This is not the approach taken by modern courts in

construing remedial statutes, and the government should be

embarrassed ever to have taken advantage of such question begging

rhetoric. The plaintiffs in this case were hired by the federal

government, served (in some cases for many years) as its employees,

exercised official authority, and were then terminated. The idea

that Congress would implicitly exclude them from the category of

former "employees" entitled to seek redress under the CSRA--if and

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

-11-
to the extent that their removal was outside a statutory bar or

that the bar was itself unconstitutional--beggars belief.

The CSRA governs "removals"; nothing in its language

suggests that a case involving a statutory bar follows a different

route; and the legislative history already described refutes any

such suggestion. Of course, if the employee comes within the

statutory bar and the statutory bar is constitutional, the

discharged employee will not get reinstated; but the proper outcome

should be a decision denying reinstatement on the merits. Thus,

the statutory route gives the plaintiff a full opportunity to

present both questions to the Federal Circuit, which is an Article

III court.

Fifth, this brings us at last to the question whether

there is some implied exception to the exclusive CSRA remedy

because the challenge in this case is a constitutional one sounding

in equity or because it is a facial constitutional attack rather

than an "as-applied" challenge. The Supreme Court has already

ruled that Bivens-type constitutional claims for damages cannot

bypass CSRA limitations, Lucas, 462 U.S. at 368; and as to

equitable constitutional claims, there is something of a circuit

-12-
split,4 but this circuit has been firm in treating the CSRA remedy

as exclusive as to equitable constitutional claims as well.

Thus, this court held in Berrios that an employee fired

by the government could not bring a due process claim and other

facial and as-applied constitutional claims by an original action

in the district court but had to follow the CSRA scheme through the

MSPB into the Federal Circuit. 884 F.2d at 31. Another decision

in this circuit reaffirmed the general rule but found it

inapplicable because the employee's classification excluded him

from the CSRA remedy. Pathak v. Dep't of Veterans Affairs, 274

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

427 F.3d 76, 77-78 (1st Cir. 2005). None of our cases has adopted

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

Constitutional claims are common in administrative

proceedings--especially equal protection and procedural due process

claims--and are part of the ordinary fodder of review in discharge

cases. Often such claims are made along with factual claims

denying the conduct alleged against the employee and statutory or

rule-based claims as well. Congress' desire to consolidate

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

4
Compare Dotson v. Griesa, 398 F.3d 156, 179-82 (2d Cir.
2005), and Lombardi v. Small Bus. Admin., 889 F.2d 961-62 (10th
Cir. 1989), with Mitchum v. Hurt, 73 F.3d 30, 35-36 (3d Cir. 1996),
and Hubbard v. EPA, 809 F.2d 1, 11 & n.15 (D.C. Cir. 1986), vacated
in part on other grounds, Spagnola v. Mathis, 859 F.2d 223 (D.C.
Cir. 1988) (en banc) (per curiam). The Supreme Court has not
resolved the question. Whitman, 547 U.S. at 513-14.

-13-
against the employee rather than the precise arguments made in

contesting that action.

What matters in the end is whether the CSRA process can

afford relief. The plaintiffs argue that a facial claim attacking

the underlying statute is one for which the MSPB cannot grant

relief to them and therefore the premise--that the CSRA remedy is

exclusive where it applies--does not itself apply. And to show

that there is no MSPB remedy, the plaintiffs point to statements by

the MSPB itself that it, "as an administrative agency, is without

authority to determine the constitutionality of Federal statutes."

Bayly v. OPM, 42 M.S.P.R. 524, 525-26 (1990).5

But while the Board may be powerless to strike down the

statute, the Federal Circuit on review of the Board may do so,

5 U.S.C. § 7703(c), and, if it agreed with the plaintiffs on the

merits, remand to the Board to grant relief. See Shalala v. Ill.

Council on Long Term Care, Inc., 529 U.S. 1, 23-24 (2000); Thunder

Basin Coal Co., 510 U.S. at 215. Accordingly, the CSRA regime does

provide an opportunity for the plaintiffs to obtain a full

determination of their facial constitutional challenge. Indeed,

even if the MSPB had the first word on the constitutional issue, it

certainly would not have the last.

5
This self-denying ordinance, distinguishing this subset of
constitutional challenges from all others, is widely repeated in
the case law, e.g., Califano v. Sanders, 430 U.S. 99, 109 (1977),
although it is "not mandatory," Thunder Basin Coal Co. v. Reich,
510 U.S. 200, 215 (1994).

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 Plaintiffs object that the Federal Circuit has regularly

said that its jurisdiction is coextensive with that of the MSPB as

to the categories of cases that fall within the CSRA. E.g., Rosano

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

proposition happens to be true as a general statement, but it was

not made by the Federal Circuit in our context and would make no

sense if it were: for in such cases the MSPB is limited only

because of a doctrine that uniquely applies to administrative

agencies and not to the Federal Circuit or any other Article III

court.

The Federal Circuit has never said that it was powerless

to act where a removal occurred and the underlying statute that

prompted the removal was itself unconstitutional. On the contrary,

that court has said that if a colorable constitutional claim were

presented, it would have to address the issue. See Riggin v.

Office of Senate Fair Emp't Practices, 61 F.3d 1563, 1570 (Fed.

Cir. 1995) (discussing Webster v. Doe, 486 U.S. 592 (1988));

Brockmann v. Dep't of the Air Force, 27 F.3d 544, 546-47 (Fed. Cir.

1994) (same). And if it mistakenly held otherwise, the remedy

would be on certiorari to the Supreme Court.

The substantive constitutional claims in this case are

unpromising, given that one conflicts with governing Supreme Court

precedent and the other ignores the fact that the plaintiffs were

free to avoid the bar by timely registration. But the CSRA

-15-
channels removals covered by the CSRA--and thus the plaintiffs'

claims--to the Federal Circuit, see Hall v. United States, 617 F.3d

1313, 1316 (Fed. Cir. 2010); that principle serves an important

purpose; the CSRA provides a remedy for a meritorious facial

challenge; and plaintiffs were obliged to use it.

The judgment of the district court is vacated and the

case remanded for entry of a new judgment denying relief for lack

of subject matter jurisdiction and without prejudice to the pursuit

of remedies under the CSRA to the extent that they may be available

at this late date. Each side shall bear its owns costs on this

appeal.

It is so ordered.

--Concurring Opinion Follows--

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 STAHL, Circuit Judge, concurring. I concur in the

ultimate result of this case, but not in the route taken in

reaching it. I would find jurisdiction to consider the plaintiffs'

claims, but hold that they fail as a matter of law.

I. Jurisdiction

The majority reaches a reasoned conclusion, but I believe

it falls short in considering fully the question of whether there

is an applicable exception to the CSRA's preclusive effect. To be

sure, the majority disposes of the plaintiffs' arguments regarding

constitutional challenges generally and facial attacks

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

whether federal district court jurisdiction remains intact if the

CSRA does not afford meaningful review to the plaintiffs' colorable

constitutional claims that sound in equity.6 Because I find that

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

remedial scheme, I would hold that federal district court

jurisdiction exists, just as our sister circuits have done in

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

502 F.3d 1027, 1034-39 (9th Cir. 2007); Mitchum v. Hurt, 73 F.3d

30, 34-36 (3d Cir. 1995); Hubbard v. EPA, 809 F.2d 1, 11-12 (D.C.

6
The plaintiffs seek equitable relief in the form of a
declaratory judgment that § 3328 and the Military Selective Service
Act are unconstitutional; an injunction prohibiting the enforcement
of § 3328; reinstatement to their agency positions; and back pay,
benefits, and attorneys' fees.

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Cir. 1986), vacated in part on other grounds, Spagnola v. Mathis,

859 F.2d 223 (D.C. Cir. 1988) (en banc) (per curiam).

As set forth in 28 U.S.C. § 1331, "district courts shall

have original jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the United States." The

plaintiffs' claims arise under the Constitution, namely, the Bill

of Attainder Clause in Article I, Section 9, and the Due Process

Clause of the Fifth Amendment, which implicitly guarantees equal

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

question, then, is whether the CSRA divested the federal district

court of its jurisdiction conferred by § 1331. See Whitman v.

Dep't of Transp., 547 U.S. 512, 514 (2006).

As explained by the majority, Congress enacted the CSRA

in 1978 as a means to "'comprehensively overhaul[] the civil

service system.'" United States v. Fausto, 484 U.S. 439, 443

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

to the CSRA, different employees were afforded different processes

of review upon an adverse employment action, resulting in both

federal court and administrative appeals with "wide variations"

among decisions. Id. at 444-45. Congress sought to streamline

these varied decisions by funneling federal employee personnel

actions through the CSRA's administrative process. Id. at 445.

Although the CSRA does not explicitly prohibit plenary

actions in federal district court, the Supreme Court has

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interpreted the statute to have far-reaching preclusive effect. In

Bush v. Lucas, 462 U.S. 367 (1983), it held that a federal-employee

plaintiff whose demotion allegedly violated the Constitution could

not sue for damages, even though, assuming the violation occurred,

his remedies under the CSRA would not fully compensate him for the

harm he suffered. Five years later, in United States v. Fausto,

484 U.S. 439, it found that the CSRA prevented a plaintiff from

initiating suit in federal court for statutory and regulatory

violations, even though the plaintiff was afforded no

administrative review under the statute.

Despite this line of precedent, the Supreme Court has

consistently found exceptions to the foreclosure of judicial review

for colorable constitutional claims sounding in equity, absent

clear congressional intent to the contrary. The same year it

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

(1988), in which a plaintiff sought equitable relief when

challenging on both statutory and constitutional grounds his

termination from the CIA due to his homosexuality. The Court found

the statutory claims unreviewable, but it rejected the government's

argument that the constitutional claims were as well, holding:

[W]here Congress intends to preclude judicial
review of constitutional claims its intent to
do so must be clear. . . . We require this
heightened showing in part to avoid the
"serious constitutional question" that would
arise if a federal statute were construed to
deny any judicial forum for a colorable
constitutional claim.

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486 U.S. at 603 (quoting Bowen v. Mich. Acad. of Family Physicians,

476 U.S. 667, 681 n.12 (1986)); see also McNary v. Haitian Refugee

Ctr., Inc., 498 U.S. 479, 496 (1991) (finding federal question

jurisdiction for plaintiffs' constitutional challenges despite

comprehensive immigration statute due to lack of meaningful

judicial review under statute and absence of clear congressional

language mandating preclusion); Johnson v. Robison, 415 U.S. 361,

373-74 (1974) (holding that statute prohibiting judicial review of

decisions by the administrator of Veterans Affairs did not provide

"the 'clear and convincing' evidence of congressional intent

required by this Court before a statute will be construed to

restrict access to judicial review" of constitutional claims

(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967))).

Because I find that the CSRA's remedial scheme does not

afford the plaintiffs meaningful review of their colorable

constitutional claims for equitable relief, I would hold that the

statute does not bar the present action and the plaintiffs may seek

relief in federal district court.

The MSPB is a creation of statute, and its jurisdiction

is limited. See 5 U.S.C. § 7701(a). Notwithstanding the question

of whether the MSPB has the power to rule on constitutional issues,

see Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 215 (1994), it

is undisputed by the parties that the MSPB cannot adjudicate claims

premised on removals due to an "absolute statutory prohibition" to

-20-
appointment. See, e.g., Hope v. Dep't of the Army, 108 M.S.P.R. 6,

9 (2008); Lovoy v. Dep't of Health & Human Servs., 94 M.S.P.R. 571,

586 (2003); Daneshpayeh v. Dep't of the Air Force, 57 M.S.P.R. 672,

676 (1993), aff'd, No. 93-3476, 1994 U.S. App. LEXIS 14360, 1994 WL

18964 (Fed. Cir. Jan. 26, 1994) (unpublished) (per curiam);

Travaglini v. Dep't of Educ., 18 M.S.P.R. 127, 132 (1983), aff'd as

modified, 23 M.S.P.R. 417, 419-20 (1984).

Section 3328 is an absolute prohibition to appointment

because an individual who knowingly and willfully fails to register

with the Selective Service System is barred from all executive

agency employment, and he must be terminated if currently employed.

See 5 U.S.C. § 3328; 5 C.F.R. §§ 300.701-.707. The MSPB

consistently dismisses appeals related to terminations pursuant to

§ 3328 on these grounds, a position the government regularly

advances before the Board and on which it succeeded in the MSPB

appeal by Mr. Elgin, a plaintiff in this matter. E.g., Charner v.

OPM, No. PH-3443-08-0601-I-2, 2009 M.S.P.B. LEXIS 1296, at *10-11

(Mar. 6, 2009) (unpublished); Whitfield v. Dep't of Interior, No.

DC-0752-09-0094-I-1, 2008 M.S.P.B. LEXIS 6910, at *4, 7 (Dec. 23,

2008) (unpublished); Rivera v. Dep't of Veterans Affairs, No. NY-

0752-08-0137-I-1, 2008 M.S.P.B. LEXIS 2056, at *7 (Mar. 31, 2008)

(unpublished); Elgin v. Dep't of Treasury, No. PH-0752-08-0004-I-1,

2007 M.S.P.B. LEXIS 7502, at *9 (Nov. 16, 2007) (unpublished).

-21-
 Indeed, the MSPB has often deemed frivolous the assertion

that it has jurisdiction over cases contesting removals pursuant to

§ 3328. See, e.g., Whitfield, 2008 M.S.P.B. LEXIS 6910, at *1;

Clarke v. OPM, No. DA-3443-07-0538-I-1, 2007 M.S.P.B. LEXIS 7101,

at *1 n.1 (Dec. 17, 2007) (unpublished); Belmares-Avalos v. OPM,

No. CH-300A-07-0351-I-1, 2007 M.S.P.B. LEXIS 4900, at *1 (May 9,

2007) (unpublished). Moreover, the regulations promulgated by OPM

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

Register Under Selective Service Law," and they state that

administrative review beyond OPM's determination is prohibited. 5

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

7
The majority states that, to the extent that the MSPB would
have found that it lacked jurisdiction to hear the plaintiffs'
claims because the plaintiffs were terminated pursuant to an
absolute statutory prohibition to appointment, the MSPB would be
wrong because the doctrine has never been endorsed by the Federal
Circuit and is illogical. I believe that the majority oversteps in
reaching this conclusion. First, as cited above, the MSPB
routinely holds that it cannot hear appeals contesting removals
based on absolute statutory prohibitions to appointment, and this
precedent appears firmly established.

Second, the Federal Circuit has hardly indicated any error in
the Board's finding. In Diamond v. U.S. Agency for International
Development, 108 F.3d 312 (Fed. Cir. 1997), it cited with approval
Travaglini v. Department of Education, 18 M.S.P.R. 127, 132 (1983),
one of the leading cases to discuss the doctrine, although it did
not apply the doctrine to the case at hand. In Daneshpayeh v.
Department of the Air Force, 1994 U.S. App. LEXIS 14360, an
unreported and non-precedential opinion, the Federal Circuit
affirmed the MSPB's decision that the Board could not grant relief
to a federal employee terminated pursuant to an absolute statutory
prohibition to appointment. Although the court indicated in a
footnote that it may have been incorrect for the MSPB to term this
holding "jurisdictional," it still found that the Board could not
grant relief because the employee's appointment was illegal. It is

-22-
 Because the MSPB has routinely stated that it lacks

jurisdiction to hear the plaintiffs' claims on the merits, it

appears to me that the Federal Circuit is without jurisdiction to

do so as well. The Federal Circuit's jurisdiction is derivative of

the MSPB's jurisdiction, and it is problematic whether the Federal

Circuit has the ability to decide matters beyond that of the Board.

See Perez v. Merit Sys. Prot. Bd., 931 F.2d 853, 855 (Fed. Cir.

1991) ("Since the MSPB had no jurisdiction, the merits of Perez's

challenge . . . were not before the MSPB for decision; nor are they

before us."); Carroll v. Dep't of Health & Human Servs., 703 F.2d

1388, 1390 (Fed. Cir. 1983) ("'[W]ith respect to cases brought

under [5 U.S.C. §] 7701, the scope of the subject matter

jurisdiction of this court is identical to the scope of the

jurisdiction of the Board.'" (quoting Rosano v. Dep't of the Navy,

699 F.2d 1315, 1318 (Fed. Cir. 1983))).

The majority places great faith in its presumption that

the Federal Circuit would either find the MSPB competent to review

the plaintiffs' claims and remand for a decision on the merits, or

that it would look beyond its own jurisdictional constraints to

reach the constitutional issues itself. The evidence to support

these assertions, however, is elusive. First, although no

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

-23-
plaintiff, in this suit or others, who was removed under § 3328 has

ever sought Federal Circuit review of the MSPB's decision to

dismiss for lack of jurisdiction, the case law and regulations

cited above suggest that such efforts would be futile. Time and

again the MSPB has dismissed these cases, claiming that it is

unable to grant relief, and an appeal to the Federal Circuit seems

almost certain to result in a simple affirmance. See Daneshpayeh,

1994 U.S. App. LEXIS 14360.

Second, the Federal Circuit has never reached beyond the

limits of the MSPB to hear the merits of a claim otherwise barred

from review. In only one instance has it hypothesized the

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

Brockmann v. Dep't of the Air Force, 27 F.3d 544, 546-47 (Fed. Cir.

1994) (acknowledging Supreme Court precedent supporting review of

colorable constitutional claims otherwise barred, but finding

precedent inapplicable because plaintiffs' claims unreviewable by

the MSPB were not colorable). Indeed, when the Federal Circuit did

confront a plaintiff covered by the CSRA who asserted

constitutional claims that were beyond MSPB review, it affirmed the

dismissal of his suit for lack of jurisdiction, rather than

providing a forum for his constitutional claims. Hubbard v. Merit

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

-24-
Such case law provides little comfort that the plaintiffs in this

matter would fare any better.8

To be sure, administrative boards have been declared

competent to review constitutional issues otherwise perhaps beyond

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

529 U.S. 1, 20-24 (2000) (interpreting Medicare statute to provide

administrative review of constitutional claims); Riggin v. Office

of Senate Fair Emp't Practices, 61 F.3d 1563, 1570 (Fed. Cir. 1995)

(finding administrative board competent to review constitutional

due process claim). In these instances, however, the

administrative schemes at issue expressly precluded federal

district court jurisdiction, and, therefore, would leave the

constitutional claims without any forum were the boards unable to

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

Act to prohibit expressly federal-question jurisdiction); Riggin,

61 F.3d at 1570 (finding Government Employee Rights Act to prohibit

expressly the commencement of judicial proceedings).

8
The majority suggests that were the Federal Circuit not to
address a colorable constitutional claim, the remedy would be on
certiorari to the Supreme Court and not via a plenary federal
district court action. I disagree with the majority because the
doctrine obliging review of constitutional claims is relevant only
when review is otherwise unavailable. Here, it appears that review
under the CSRA's administrative scheme is foreclosed, and so I do
not see why the federal district court is not the proper forum to
review the claims. Indeed, the several circuits that have invoked
this doctrine in the context of the CSRA have done so despite the
Federal Circuit's ostensible ability to do the same. See Stone,
502 F.3d at 1034-39; Mitchum, 73 F.3d at 34-36; Hubbard, 809 F.2d
at 11-12.

-25-
 The CSRA contains no such clear prohibition of original

federal court actions. Chapter 75 of the CSRA allows an agency to

remove an employee "only for such cause as will promote the

efficiency of the service," and upon such action, the employee "is

entitled to appeal to the Merit Systems Protection Board." 5

U.S.C. § 7513(a), (d). Nowhere does the statute indicate

explicitly that a plaintiff may not challenge his termination by

raising colorable constitutional claims in federal court.9

Our sister courts in the Ninth, Third, and D.C. Circuits

have held similarly and allowed federal employees to bring

constitutional claims in district court actions seeking equitable

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

preclude judicial review of plaintiffs' First Amendment

constitutional claims for equitable relief when plaintiffs had no

remedy under the statute); Mitchum, 73 F.3d at 34-36 (finding CSRA

and comparable statutes did not preclude federal district court

review of plaintiffs' constitutional claims for injunctive and

declaratory relief because CSRA not sufficiently clear to restrict

federal power to grant equitable relief for constitutional

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

9
To the extent that the majority opinion suggests that the
plaintiffs' claims are not colorable, I disagree. There is a
difference between colorable and meritorious claims, and although
I would dismiss the plaintiffs claims as a matter of law, I do not
find them lacking in "potential validity," see Makieh v. Holder,
572 F.3d 37, 42 (1st Cir. 2009). The district court's initial
holding on the bill of attainder claim demonstrates as much.

-26-
district court had jurisdiction over First Amendment claim because

the "CSRA does not preclude federal employees from seeking

equitable relief against agencies for allegedly unconstitutional

personnel actions"); Spagnola, 859 F.2d at 229-30 ("[T]ime and

again this court has affirmed the right of civil servants to seek

equitable relief against their supervisors, and the agency itself,

in vindication of their constitutional rights.").

The Eleventh, Seventh, and Fourth Circuits have expressly

avoided the question of whether the CSRA forecloses equitable

relief for colorable constitutional claims; indeed, the Eleventh

and Fourth Circuits have distinguished or questioned their prior

precedent that suggests preclusion. See Hardison v. Cohen, 375

F.3d 1262, 1263, 1266-69 (11th Cir. 2004) (acknowledging serious

question left unresolved as to whether the CSRA precludes equitable

relief for constitutional challenges to terminations and

distinguishing prior precedent in Stephens v. Dep't of Health &

Human Servs., 901 F.2d 1571 (11th Cir. 1990), based on availability

of review and type of remedy sought); Paige v. Cisneros, 91 F.3d

40, 44 (7th Cir. 1996) (avoiding issue of whether CSRA precludes

equitable relief for colorable constitutional claims because claim

was not colorable); Bryant v. Cheney, 924 F.2d 525, 527-28 (4th

Cir. 1991) (declining to address continued vitality of Pinar v.

Dole, 747 F.2d 899 (4th Cir. 1984), in light of Webster and circuit

split on issue). Indeed, the Supreme Court indicated the

-27-
significance of this issue in Whitman v. Department of

Transportation, 547 U.S. 512, 514 (2006), remanding for a

determination as to whether the CSRA removed federal question

jurisdiction over constitutional challenges.

I acknowledge that some of our own precedent and

unpublished decisions along with decisions in the Second and Tenth

Circuits10 suggest that the CSRA bars all federal actions related

to civil service employment, but those cases are distinguishable.

They did not involve the absence of meaningful administrative

remedies, Dotson v. Griesa, 398 F.3d 156, 171-72, 182 (2d Cir.

2005) (noting lack of CSRA remedies but available relief through

comparable statutory scheme); Harvey v. U.S. Postal Serv., No. 94-

1729, 1995 U.S. App. LEXIS 9447 (1st Cir. Apr. 25, 1995)

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

Army, 884 F.2d 28, 29-30 (1st Cir. 1989) (CSRA remedies

available);11 equitable claims, Harvey, 1995 U.S. App. LEXIS 9447,

at *1-2; Roth v. United States, 952 F.2d 611, 613 & n.2 (1st Cir.

1991); or colorable constitutional challenges, Pathak v. Dep't of

10
Unpublished opinions from this court and opinions from other
courts act as persuasive authority and are not binding precedent.
See Fed. R. App. P. 32.1; 1st Cir. R. 32.1.0(a); United States v.
Stepanian, 570 F.3d 51, 57 n.10 (1st Cir. 2009).
11
Although the majority claims that Berrios definitely answers
our present matter, the case is distinct. In Berrios, the
plaintiff was afforded and took advantage of available CSRA
remedies, and so the rationale for district court jurisdiction
would not apply. Here, however, the plaintiffs have no statutory
remedies.

-28-
Veterans Affairs, 274 F.3d 28, 31, 33 (1st Cir. 2001);12 Harvey,

1995 U.S. App. LEXIS 9447, at *2; Desmond v. Dep't of Defense, No.

92-2201, 1993 U.S. App. LEXIS 5195, at *11-12 (1st Cir. Mar. 19,

1993) (unpublished); or they lacked meaningful analysis, Lombardi

v. Small Bus. Admin., 889 F.3d 959, 961-62 (10th Cir. 1989).

Consistent with Stone, Mitchum, and Hubbard, and the

shift within the circuits, I would hold that for an administrative

scheme to foreclose a plenary federal district court action seeking

equitable relief and involving colorable constitutional claims,

congressional intent must be clear. The CSRA does not meet this

standard. I would then find that the plaintiffs' claims are

afforded no meaningful review under the CSRA and, therefore, their

claims are reviewable in federal district court.

II. The Merits

Having found jurisdiction, I would dismiss the

plaintiffs' claims on the merits.

A. Bill of Attainder

The plaintiffs assert that § 3328 is an unconstitutional

bill of attainder since it legislatively punishes men age twenty-

six and older who failed to and can no longer register with the

Selective Service System because it prohibits their employment with

an executive agency. They assert that the statute satisfies the

12
Indeed, in Pathak we acknowledged that, despite the CSRA's
expansive reach, we might have jurisdiction to review the
plaintiffs claims, were they colorable. 274 F.3d at 33.

-29-
requirements of a bill of attainder by identifying a class of men

based on immutable past conduct and operating as a punishment

without trial. I disagree.

Article I, Section 9, Clause 3 of the United States

Constitution reads: "No Bill of Attainder or ex post facto Law

shall be passed." With this clause the Framers "sought to prohibit

the ancient practice of the Parliament in England of punishing

without trial 'specifically designated persons or groups.'"

Selective Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S.

841, 847 (1984) (quoting United States v. Brown, 381 U.S. 437, 447

(1965)). The constitutional provision safeguards the notion of

separation of powers by protecting against trial by legislature.

Brown, 381 U.S. at 442. Historically, bills of attainder were acts

sentencing to death one or more specific persons, although the

Supreme Court has read the clause to also outlaw what were known as

bills of pains and penalties, which imposed less severe

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

277, 323 (1867). Targeted parties were typically those "who had

attempted, or threatened to attempt, to overthrow the government."

Brown, 381 U.S. at 441.

The Supreme Court has struck down statutes on bill of

attainder grounds only five times in the nation's history. See

Cummings, 71 U.S. 277 (targeting Confederate sympathizers); Ex

parte Garland, 71 U.S. (4 Wall.) 333 (1867) (same); Pierce v.

-30-
Carskadon, 83 U.S. (16 Wall.) 234 (1873) (same); United States v.

Lovett, 328 U.S. 303 (1946) (targeting "subversives"); Brown, 381

U.S. 437 (targeting Communist Party members). For a statute to

qualify as a bill of attainder it must: (1) specify the affected

person or group, (2) impose punishment by legislative decree, and

(3) dispense with a judicial trial. See Selective Serv. Sys., 468

U.S. at 847. Because I would find that § 3328 does not specify an

identifiable group or impose punishment, I would hold that the

statute is not a bill of attainder.

1. Specification

Typical bills of attainder evince specification by naming

the person to be punished. The Supreme Court has also recognized

specification when legislation describes individuals "in terms of

conduct which, because it is past conduct, operates only as a

designation of particular persons." Communist Party of the U.S. v.

Subversive Activities Control Bd., 367 U.S. 1, 86 (1961); see also

Cummings, 71 U.S. 277 (identifying individuals by past affiliation

with Confederacy); Ex Parte Garland, 71 U.S. 333 (same). In

contrast, statutes of general applicability that focus on

prospective conduct have withstood challenges on bill of attainder

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

Serv. Sys., 468 U.S. at 848-51 (finding statute prospective and

therefore not bill of attainder); Communist Party, 367 U.S. at 86-

87 (finding statute not bill of attainder because it did not attach

-31-
to "past and ineradicable actions," but rather "turn[ed] upon

continuingly contemporaneous fact").

Section 3328 does not meet the specification requirement

to constitute a bill of attainder because it does not identify

individuals for legislatively imposed punishment based on

irreversible past acts. Rather, the statute is entirely

prospective in nature. President Carter's Proclamation issued on

July 2, 1980, dictated that men born on or after January 1, 1960,

are required to register with the Selective Service System. Those

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

register. All men born during or after 1963 have thirty days both

before and after their eighteenth birthdays to comply.

Proclamation No. 4771.

Section 3328 became effective on November 8, 1985. On

this date, the oldest person subject to its provisions would have

been twenty-five. Thus, even if an individual had failed to

satisfy timely the dictates of President Carter's Proclamation,

under § 3328, he still had the opportunity to register with the

Selective Service System and avoid disqualification from federal

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

Serv. Sys., 468 U.S. at 849. As such, § 3328 does not identify any

individuals "'ineluctably designated by the legislature' for

punishment" because all men can comply prospectively. See

-32-
Selective Serv. Sys., 468 U.S. at 847 (quoting Communist Party, 367

U.S. at 87).

The Supreme Court found similarly in Selective Service

System v. Minnesota Public Interest Research Group, 468 U.S. at

849-51, when it held that § 12(f) of the Military Selective Service

Act, which denies federal financial assistance to male students who

fail to register for the draft, did not meet the specification

requirement to constitute a bill of attainder.13 Similar to § 3328,

§ 12(f) was enacted before any men subject to it would have been

too old to register with the Selective Service System.

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

to register late, meaning, after the timeline delineated in

Proclamation 4771, § 12(f) was not retrospective.

The plaintiffs counter that § 3328 is nevertheless a bill

of attainder because it penalizes an easily identifiable group of

men age twenty-six and older who are no longer eligible to register

for the draft. They argue that Supreme Court precedent and

historical parliamentary acts demonstrate that legislation

qualifies as a bill of attainder even when punishment occurs post-

enactment and is conditioned on future behavior. They advance that

§ 3328 is such a bill because it makes termination contingent upon

the subsequent act of failing to register for the draft before

13
The Supreme Court also determined that the statute did not
meet the punishment requirement. As explained below, I would hold
that neither does § 3328.

-33-
turning twenty-six. Relatedly, they also assert that § 3328 should

be evaluated as a bill of attainder at the time of enforcement

rather than the time of enactment, and that under such analysis,

the statute meets the specification element because men currently

age twenty-six and older who did not register for the draft

represent an easily ascertainable group.

The plaintiffs' arguments miss the mark. To be sure, the

Supreme Court has held that a statute conditioning punishment on

future behavior may still constitute a bill of attainder, but this

assertion is irrelevant. Such statutes have met the specificity

requirement because they have identified specific individuals or

groups based on prior acts, irrespective of also providing these

individuals with a means to escape punishment through some future

performance. See Brown, 381 U.S. at 442 (highlighting that

statutes meet specification by designation of affected individuals,

even if they provide escape clauses).

For example, in Cummings v. Missouri, 71 U.S. 277, the

Supreme Court found invalid a Missouri constitutional amendment

that prohibited people from engaging in certain professions unless

they stated under oath that they had not given aid or comfort to

the Confederacy.14 Although individuals could arguably escape

14
The Constitution extends the prohibition of bills of
attainder to the states. U.S. Const. art. I, § 10, cl. 1 ("No
State shall . . . pass any Bill of Attainder . . . .").

-34-
punishment by performing the oath,15 the statute was still a bill

of attainder because it identified the affected group based on

immutable past conduct, prior sympathy and aid to the Confederate

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

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

Ex Parte Garland, 71 U.S. at 377 (involving federal statute

directed at Confederates that contained an escape clause and was

ultimately found to be a bill of attainder). Section 3328,

however, does not identify individuals in this manner because it is

not directed at people who committed prior acts. Rather, it is a

broadly drawn statute of general applicability directed at

prospective conduct and affecting all men regardless of their past

actions, political affiliations, or ideological beliefs.

With respect to the plaintiffs' insistence that the court

evaluate § 3328 at the time of enforcement rather than at the time

of enactment, I would reject it. A statute meets the specification

element if it identifies individuals by name or by description of

prior conduct so that it "operates only as a designation of

15
The Supreme Court has noted the elusiveness of escaping
punishment under the Missouri amendment at issue in Cummings. In
effect, prior Confederate sympathizers could not evade the
employment bar because their only options were to abstain from the
oath and lose their livelihood, or take the oath and perjure
themselves. See Selective Serv. Sys., 468 U.S. at 848. To the
extent that the plaintiffs analogize the Missouri amendment
to § 3328 in that both provide "escape clauses," § 3328 does not
present the double bind at issue in Cummings since men subject to
§ 3328 can avoid punishment through lawful actions.

-35-
particular persons." Communist Party, 367 U.S. at 86. A statute

of general applicability that affects individuals only upon

enforcement is not a bill of attainder; it is simply an example of

the quintessential legislation that the Constitution tasks Congress

with creating. See Brown, 381 U.S. at 461.

2. Punishment

Even if § 3328 fulfilled the specificity element, I would

still find that it does not constitute a bill of attainder because

it does not inflict punishment. Courts evaluate whether a statute

satisfies the punishment element for bill of attainder purposes by

considering: (1) whether the statute falls within the historical

meaning of legislative punishment; (2) whether, in view of the type

and severity of the burdens imposed, the statute reasonably can be

said to further nonpunitive legislative purposes; and (3) whether

the legislative record demonstrates a congressional intent to

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

Admin. of Gen. Servs., 433 U.S. 425, 473, 475-76, 478 (1977)).

"[O]nly the clearest proof could suffice to establish the

unconstitutionality of a statute" based on impermissible

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

(1960). Further, "[e]ach case [turns] on its own highly

particularized context." Id. at 616.

Section 3328 does not satisfy any of these punishment

queries. It is true that "a legislative decree of perpetual

-36-
exclusion" from specific types of employment meets the historical

understanding of a bill of attainder. Ex parte Garland, 4 U.S. at

377 (1867) (barring types of employment for Confederate

sympathizers); see Cummings, 71 U.S. 277 (same); Lovett, 328 U.S.

303 (barring named individuals from federal employment); Brown, 381

U.S. 437 (barring Community Party members from positions within

labor unions). But § 3328 does not act as a perpetual exclusion to

employment because all men have an opportunity to register for the

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

prison in their own pockets' . . . does not fall within the

historical meaning of forbidden legislative punishment." Selective

Serv. Sys., 468 U.S. at 853 (quoting Shillitani v. United States,

384 U.S. 364, 368 (1966)).

Also, it is reasonable to understand § 3328 as a means to

further the nonpunitive goal of encouraging Selective Service

System registration. The statute was enacted in conjunction with

findings that detailed the importance of the draft registration

program and an urging from Congress that the President "recognize

. . . the contribution of our young men to the success of the

peacetime registration program." See Pub. L. No. 99-145 §§ 1621,

1622(a), 99 Stat. 583, 776-77 (1985). It also complements

President Carter's directive to executive agencies to "cooperate

and assist" in the draft registration requirements. Proclamation

No. 4771. The conditioning of civil service employment on draft

-37-
registration, then, acts as a "rational means to improve

compliance," which is a legitimate nonpunitive objective. See

Selective Serv. Sys., 468 U.S. at 854.

Finally, I would not find the "clearest proof" from the

congressional record that Congress intended § 3328 to act as a form

of punishment. Admittedly, Senator Strom Thurmond, the statute's

sponsor, deemed it "unpatriotic" to permit nonregistrants to enjoy

the privileges and benefits of civil service positions. 131 Cong.

Rec. S6627 (1985). These comments alone, however, do not suffice

as "'unmistakable evidence of punitive intent which . . . is

required before a Congressional enactment of this kind may be

struck down.'" Selective Serv. Sys., 468 U.S. at 855 n.15

(alterations in original) (quoting Flemming, 363 U.S. at 619); see

also Chrysler Corp. v. Brown, 441 U.S. 281, 311 (1979) ("The

remarks of a single legislator, even the sponsor, are not

controlling in analyzing legislative history."). Little other

legislative history of the statute exists, and what the record does

contain suggests nonpunitive motives. Senator Sam Nunn, the only

other senator who offered substantive remarks during debate on the

legislation, lent his support to the statute, but underscored the

importance of allowing a person to register late despite

Proclamation 4771's mandates. 131 Cong. Rec. S6627. His concern

for the ability of nonregistrants to correct their failure

demonstrates the legislation's goal of encouraging compliance.

-38-
 For these reasons, I would find that § 3328 is not a bill

of attainder and affirm the dismissal of this claim.

B. Equal Protection

For their second constitutional claim, the plaintiffs

contend that § 3328 and the Military Selective Service Act on which

it is predicated violate equal protection as guaranteed by the

Fifth Amendment because the statutes draw unlawful gender-based

distinctions. The plaintiffs acknowledge that the Supreme Court

has already evaluated the constitutionality of the Military

Selective Service Act upon an equal protection challenge in Rostker

v. Goldberg, 453 U.S. 57 (1981). They argue that Rostker is no

longer good law, however, due to subsequent precedent from United

States v. Virginia, 518 U.S. 515 (1996), which, they posit, altered

the legal standard governing equal protection claims, and due to

dramatic changes in the roles of women in the military.

Because Rostker stands on all fours with the present

matter, I would reject the plaintiffs' challenge. Despite changes

in the military and the extent, if any, of Virginia's impact on the

equal protection standard as applied here, principles of stare

decisis would mandate the finding that Rostker is controlling and

that plaintiffs' claim are meritless. See Agostini v. Felton, 521

U.S. 203, 237 (1997) ("We reaffirm that '[i]f a precedent of this

Court has direct application in a case, yet appears to rest on

reasons rejected in some other line of decisions, the Court of

-39-
Appeals should follow the case which directly controls, leaving to

this Court the prerogative of overruling its own decisions.'"

(quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490

U.S. 477, 484 (1989))); see also Tenet v. Doe, 544 U.S. 1 (2005)

(reversing Ninth Circuit because its holding was "quite wrong" and

"contravene[d] [] longstanding" Supreme Court precedent).

In Rostker, the Supreme Court held that the Military

Selective Service Act does not violate equal protection by

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

that Congress is afforded due deference in matters involving

national defense and the constitutionality of its enactments, and

the extensive congressional record of the statute demonstrated that

Congress made a "studied choice" in excluding women from the

registration requirements. Id. at 64-69, 72-77. It then held that

the statute was not an instance of unlawful gender discrimination.

The government had an important interest in raising and supporting

armies, as detailed in Article I, Section 8 of the Constitution.

Id. at 70-72. The gender classification excluding women from the

draft was closely related to this interest because the purpose of

registration was to facilitate a draft for combat troops, and women

were ineligible for combat. Id. at 75-79. No part of Rostker has

been overruled, and its holding would foreclose any review of the

plaintiffs' claim.

-40-
 To be sure, the current reality of the armed forces

represents a marked shift from 1981, when Rostker was decided.

According to the plaintiffs' complaint, more than 200,000 women

presently serve in the United States military, and women now make

up 15 percent of the armed forces, compared to 8.4 percent in 1980.

Legislation enacted after the decision is Rostker permits women to

serve on Navy combat ships and fly combat aircraft, and a new Navy

policy will allow women to serve on submarines. See Pub. L. No.

103-160, § 541, 107 Stat. 1547, 1659 (1993) (repealing ban on

assignment of women to combat ships); Pub. L. No. 102-190, § 531,

105 Stat. 1290, 1365 (1991) (repealing ban on women from serving on

aircraft engaged in combat missions); Commander, Submarine Forces

Public Affairs, Navy Policy Will Allow Women to Serve Aboard

Submarines, navy.mil, (Apr. 29, 2010, 6:35 AM),

http://www.navy.mil/search/display.asp?story_id=52954. Even more,

the congressional Military Leadership Diversity Commission recently

issued a final report urging Congress to allow women into male-only

land combat units. From Representation to Inclusion: Diversity

Leadership for the 21st-Century Military, Final Report (Military

Leadership Diversity Comm'n, Arlington, Va.) Mar. 15, 2011, at 71-

74, 127, available at http://mldc.whs.mil/index.php/final-report.

Despite these developments, women are still precluded

from ground combat positions. Further, Congress has demonstrated

an acute awareness of the gender distinctions in draft registration

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requirements, and yet it has not amended the statute. See, e.g.,

Pub. L. No. 109-163, § 541(a)(1), 119 Stat. 3136, 3251-52 (2006)

(directing Secretary of Defense to provide advance notice of

changes to ground combat policy along with "detailed analysis of

legal implication of the proposed change with respect to the

constitutionality of the application of the Military Selective

Service Act to males only." (internal citation omitted)). Indeed,

the House's Armed Service Committee took pains to explain that

repeals to certain bans on women-in-combat positions should not be

"construed as tacit committee concurrence in an expansion of the

assignment of women to units or positions whose mission requires

routine engagement in direct combat on the ground, or be seen as a

suggestion that selective service registration or conscription

include women." H.R. Rep. No. 103-200, pt. 2 (1993). In any

event, it would not be for this court to determine what, if any,

impact these developments had on the continued vitality of Rostker,

a task left solely to the Supreme Court.

III. Conclusion

For the foregoing reasons, I concur in the judgment. I

would find jurisdiction to hear the plaintiffs' claims but

ultimately affirm their dismissal on the merits.

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