Ban on jobs for those who don't register for draft invalidated

Judge backs 4 who were fired

A federal judge in Boston has declared unconstitutional a 1985 law that bars people from most federal employment if they knowingly fail to register for the draft.

US District Court Judge Douglas P. Woodlock, siding with four men fired by the federal government for failing to register years earlier, said the law violates a constitutional provision that bars the legislative branch from punishing people without a trial.

"I conclude that no circumstances exist that would permit Congress, in contravention of the Constitution's Bill of Attainder Clause, to prohibit nonregistered males age 26 and older from federal agency employment for their lifetimes without judicial decision making," Woodlock said in a 32-page decision.

The four men - who lived in Massachusetts, California, Michigan, and Washington, D.C., when they were fired - want to be rehired and compensated for lost wages. They had worked for agencies, ranging from the IRS to the Federal Deposit Insurance Corporation.

"There's already a criminal statute that says if you don't register with the Selective Service if you're required to," said Harvey A. Schwartz of Boston, the civil rights lawyer for the men. "You can be indicted, you get a trial, and there's a punishment for committing a crime. What you shouldn't do is have the legislative branch say, 'You get no trial, you have no opportunity to put up a defense, and here's how you're punished.' "

Schwartz said the statute of limitations for charging someone with a felony for failing to register for the draft had lapsed for all four men.

The Massachusetts plaintiff, Michael B. Elgin, whose last known address was in Stoughton, fathered a child at 14, was kicked out of his family's residence, and was homeless when he turned 18, according to the complaint. He was unaware of the requirement to register within 30 days of his birthday.

Elgin, 43, fired from the IRS in 2007 over the objections of supervisors and Senators Edward M. Kennedy and John F. Kerry, could not be reached for comment.

Christina DiIorio-Sterling - a spokeswoman for US Attorney Michael J. Sullivan, whose office is defending the government in the suit - said the Department of Justice is reviewing the ruling and had no further comment.

Woodlock, an appointee of the Reagan administration, plans to hold a hearing Feb. 6 to discuss what happens with the lawsuit. Schwartz said he will ask Woodlock to certify the complaint as a class-action claim on behalf of thousands of other federal employees fired under the same statute.

"The usual course, when you're challenging the constitutionality of a federal law, is you lose in the trial court, you might win or lose in the appeals court, and the final decision gets made by the Supreme Court," Schwartz said. "It's a big deal for a [trial] judge to tell Congress that you violated the Constitution."

John Reinstein, legal director of the ACLU of Massachusetts, which did not take a position in the suit, said Woodlock's ruling "illuminates a provision of the Constitution which I think people don't pay much attention to, but which is nevertheless an important check on what the government can do."

Article I of the Constitution prohibits Congress from passing a law that decides someone's guilt and punishes without a trial by the courts. The provision, crafted by the framers of the Constitution even before the Bill of Rights, represented a repudiation of the practices of the English Parliament, which periodically punished individuals or groups without a trial.

Woodlock's ruling Monday focused on two acts of the US government more than 20 years ago.

In 1980, in response to the Soviet invasion of Afghanistan, President Carter issued a proclamation requiring that men born on Feb. 1, 1960, and afterward register when they turned 18.

Five years later, Congress passed a statute that said anyone who "knowingly and willfully" failed to register could not work for an executive agency.

Senator Strom Thurmond of South Carolina, who championed the bill in the Senate, said people "who irresponsibly violate the Selective Service statutes should not be allowed the benefit of a civil service job."

Three of the four who challenged the law were unaware they had to register when they turned 18 in the 1980s and '90s.

Those men were Elgin, who worked for the IRS in Andover from 1991 to 2007; Henry Tucker of Washington, who worked for the FDIC from around 1990 to 2007; and Christon Colby of Michigan, who worked for the IRS from 2002 until 2007.

The fourth plaintiff, Aaron Lawson, 33, who fought forest fires from 2003 to 2008 for the Bureau of Land Management in California, said that he did register at 18 but that there is no record of it.

Saltzman can be reached at jsaltzman@globe.com.