|June 12, 2012|
Previously published on June 11, 2012
On June 11, 2012, the U.S. Supreme Court decided Elgin v. Dep't of the Treasury (No. 11-45), affirming the First Circuit's holding that an employee challenging his removal from the civil service must pursue his claim before the Merit Systems Protection Board (MSPB), with judicial review in the Federal Circuit, even if the basis for the employee's claim is that the statute under which he was removed is facially unconstitutional. This method for seeking relief is the exclusive remedy for an employee under the Civil Service Reform Act of 1978, 5 U.S.C. § 1101 et seq.
Petitioner Michael Elgin was discharged from his civil service job because he failed to comply with the Military Selective Service Act by registering for the military draft. Elgin argued that the statute requiring discharge of civil service employees who knowingly and willfully fail to register, 5 U.S.C. § 3328, is facially unconstitutional as a bill of attainder and unconstitutionally discriminatory on the basis of gender because only males are required to register. He sought relief before the MSPB, but the administrative law judge dismissed his claim for lack of jurisdiction. Rather than appeal the dismissal, Elgin sought relief in the U.S. District Court, which determined that it had jurisdiction. The Court of Appeals for the First Circuit reversed, holding that the district court lacked jurisdiction because the Civil Service Reform Act placed exclusive jurisdiction with the MSPB.
The U.S. Supreme Court affirmed the First Circuit, holding that the Civil Service Reform Act created a comprehensive system for addressing the claims of discharged civil service employees, and that it is "fairly discernible" from the text, structure, and purpose of the law that Congress intended all appeals by covered employees to go to the MSPB. Neither the text, structure, nor purpose of the law supports any exception for facial constitutional challenges; the statute already contains one exception, indicating that Congress knew how to make an exception for facial constitutional challenges but chose not to do so. Creating an exception for facial constitutional challenges would undermine the congressional purpose to establish an integrated scheme of review for federal employment decisions.
The Court rejected Elgin's claim that the MSPB would provide no meaningful review because it lacked the power to declare a statute unconstitutional. The reviewing court, the Federal Circuit, has that authority, and the MSPB has the expertise to develop an administrative record upon which the Federal Circuit could base a constitutional ruling. The Court also rejected Elgin's argument that his claims are "wholly collateral" to the statutory scheme for review of civil service decisions, concluding that his case is similar to other cases adjudicated by the MSPB in which an employee argues that a personnel action against her was unlawful. The Court also noted that channeling Elgin's claim through the MSPB allows for an expert body to make preliminary determinations on relevant questions, perhaps allowing his claim to be disposed of on non-constitutional grounds.
Justice Thomas delivered the opinion of the court, which was joined by Chief Justice Roberts and Justices Scalia, Kennedy, Breyer and Sotomayor. Justice Alito filed a dissenting opinion joined by Justices Ginsburg and Kagan.