Supremes Curtail Avenues of Appeal for Fired Federal Employees

The Supreme Court has just issued a decision that heads off an end run around the Civil Service Reform Act’s employee appeals process. The court refuses to permit the district courts to supplant MSPB jurisdiction simply because the appeal is challenging the constitutionality of the law barring those who dodge selective service registration requirements from being employed by the federal government.

The Supreme Court has ruled 6-3 that district courts do not
have jurisdiction in federal employee removal cases simply because the
challenge is based on the constitutionality of the law directing the removal. (Elgin v. Department of the Treasury,
U.S. Supreme Court No. 11-45 (6/11/12)

Through enactment of the Civil Service Reform Act, the court
opines, “it is fairly discernible that Congress intended the statute’s review
scheme to provide the exclusive avenue to judicial review for covered employees
who challenge covered adverse employment actions….” (Opinion p. 2)

The case involves several federal employees who were removed
for failing to register with selective service. 5 USC section 3328) bars from
federal employment anyone who has knowingly and willfully failed to register
for the Selective Service as required by law.

Instead of appealing their removals to the Merit Systems
Protection Board (MSPB) and then to the Federal Circuit Court of Appeals, these
individuals took their case to a federal district court where they argued the
law requiring their termination was unconstitutional. (One individual did initially
appeal to the MSPB. When the Board ruled that it did not have jurisdiction over
his appeal and advised him of his recourse to the Federal Circuit, he instead
joined the district court lawsuit.)

The district court took jurisdiction, holding that the CSRA
did not preclude it from hearing the claims because the MSPB did not have
authority to determine the constitutionality of the law.

On appeal by the government, the First Circuit bounced the
case back to the district court and ordered it to dismiss the case for lack of
jurisdiction. The appeals court held that a case challenging the
constitutionality of a law does not preclude it from being considered under the
CSRA. Under the CSRA review scheme, the Federal Circuit Court of Appeals is the
forum that can tackle these kinds of issues.

The Supreme Court took jurisdiction of the case and has now
affirmed the appeals court’s ruling.

The effect of this decision is to push employee appeals
through the MSPB instead of permitting avenues of appeal outside the scheme set
up in the CSRA.

Elgin v. Department of Treasury 11-45

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.