Ex-Civil Servants Can Fight Draft Requirement

(CN) - The 5th Circuit revived the sex-discrimination claims of four men who were fired or forced to resign from civil service jobs because they had not registered for the military draft before turning 26.

The Boston-based federal appeals panel found that Michael Elgin, Aaron Lawson, Henry Tucker and Christon Colby were entitled to a review of their constitutional claims under the Civil Service Reform Act (CSRA), a law that allows some government employees to challenge dismissal.

The men argued that a federal law requiring them to register for a military draft was discriminatory because it applied only to men and not women.

Under the law, male U.S. citizens who fail to the register for selective military service between the ages of 18 and 26 are barred from certain government jobs.

The U.S. government said that the case should be thrown out because such disputes are supposed to take a specific trajectory: first arguing before a merits board, and then appealing to the Federal Circuit.

A federal judge refused to dismiss the complaint on jurisdictional grounds, however, and later rejected the men's constitutional challenge and equal-protection claims under the Fifth Amendment.

But a three-judge appellate panel found that the CRSA opened the door to a review of the plaintiffs' constitutional claims.

Though the government argued the men were never employees for the purposes of the law because they never should have been hired in the first place, the court disagreed, vacating the judgment and remanding back to the lower court.

"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," Judge Michael Boudin wrote for the court. "The idea that Congress would implicitly exclude them from the category of former 'employees' entitled to seek redress under the CSRA - if and to the extent that their removal was outside a statutory bar or that the bar was itself unconstitutional - beggars belief."

Boudin ordered the lower court to reconsider the claims, even though he described them as "unpromising."

In a concurring opinion, Judge Norman Stahl agreed that the District Court had jurisdiction to hear the case but said he believed that the constitutional claims failed as a matter of law.

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