Federal Employees Must Challenge Adverse Employment Actions Pursuant to the Procedural Route Prescribed by the Civil Service Reform Act

On June 11, 2012, in a 6-3 opinion authored by Justice Thomas, the U.S. Supreme Court held that the Civil Service Reform Act of 1978 (CSRA) provides the exclusive avenue to judicial review even when a qualifying federal employee challenges an adverse employment action by arguing that a federal statute is unconstitutional.

In Elgin, et al. v. Department of Treasury, et al., all of the petitioners were male federal employees who were fired for failing to register for the Selective Service. The Military Selective Service Act requires, with few exceptions, that all male U.S. citizens between the ages of 18 and 25 register for the draft. A different federal law bars from civil service anyone who knowingly refused to do so.

Mr. Elgin and the other petitioners challenged their firings in a suit in Federal District Court. They argued that they should not have been fired because the Military Selective Service Act and the federal law barring them from civil service for knowingly refusing to register are unconstitutional. The Federal District Court denied petitioners' constitutional claims on the merits. The First Circuit vacated and remanded with instructions to dismiss for lack of jurisdiction. The First Circuit held that challenges to a removal are not exempt from the CSRA review scheme simply because an employee challenges the constitutionality of the statute authorizing the removal.

The U.S. Supreme Court agreed to hear the case to decide whether the CSRA precludes District Court jurisdiction over the petitioners’ claims even though they are constitutional claims for equitable relief. In other words, the issue was not whether petitioners’ constitutional challenge was correct, but rather how petitioners get to raise their challenge. To that end, the Supreme Court concluded that it is “fairly discernable” from the CSRA’s text, structure and purpose that Congress intended that petitioners must first bring their claims to the Merit Systems Protection Board (MSPB), rather than District Court, even if the MSPB cannot declare a law unconstitutional. The Supreme Court reasoned that even if the MSPB cannot decide a constitutional question, the Federal Circuit that reviews MSPB decisions could. Therefore, there is no reason to believe that Congress meant to allow litigants like petitioners to bypass the procedure it created for most other employment-related claims.

This case is obviously of great interest to federal employers, employees, and their respective representatives. However, it will also be interesting to see what impact, if any, this decision has on future employment-related matters that come before the U.S. Supreme Court.

Contact: Alexander Kipp

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