ELGIN v. DEPARTMENT OF THE TREASURY

Transcript: 

ORAL ARGUMENT OF HARVEY A. SCHWARTZ ON BEHALF OF THE PETITIONERS

Chief Justice John G. Roberts: We'll hear argument first this morning in Case 11-45, Elgin v. Department of the Treasury.

Mr. Schwartz.

Mr. Schwartz: Mr. Chief Justice, and may it please the Court:

The question in this case is whether it is fairly discernible from the Civil Service Reform Act that Congress revoked the district court jurisdiction to declare acts of Congress unconstitutional in actions brought by Federal employees.

The answer is no, for several reasons.

First, the Civil Service Reform Act doesn't say that it precludes section 1331 jurisdiction.

Congress could have said so.

Congress didn't say so.

And there's no inference of preclusion of the Petitioners' claims that's fairly discernible from the scheme itself.

And that's because challenges to constitutionality of statutes are just not the type of claims that are reviewed through the CSRA scheme.

Because of this, the Merit Systems Protection Board dismisses challenge -- challenges to constitutionality of a statute routinely as outside of its authority.

Justice Elena Kagan: Mr. Schwartz--

Mr. Schwartz: Yes?

Justice Elena Kagan: --suppose an employee is fired and he has a variety of different kinds of claims, constitutional and statutory.

What would you think happens then?

Does he bring the constitutional claims in one court but the statutory claims in another court -- excuse me -- in the -- in the commission?

Mr. Schwartz: No, Your Honor.

I believe that, because of normal rules against splitting of claims, the employee would have to make a decision.

Justice Elena Kagan: Well, that seems just as bad.

In other words, that then, you -- it's not inefficient necessarily, but your scheme would force the employee to choose between her constitutional claims and her statutory claims.

Mr. Schwartz: That is correct.

Justice Elena Kagan: Why -- why would we do that?

Mr. Schwartz: Because of the importance of making the constitutional claims available in -- in a -- for judicial review.

That is -- that's just one -- one of the options that the employee would have to weigh.

Justice Samuel Alito: Why would you make that concession?

Why wouldn't it be possible in that, for an employee to choose?

If the employee had both constitutional and nonconstitutional claims, perhaps that employee could take advantage of the review scheme that's outlined by the government.

But in the situation where there's purely a challenge to a statute, the employee would have the option of bringing the claim in one of the district courts.

Mr. Schwartz: That -- that certainly is a possibility, Your Honor.

And -- and it is a possibility that the employee could bring his constitutional claim in the district court and still pursue his statutory claim before the Merit Systems Protection Board.

However, I'd like to point out that, while this is an interesting hypothetical, we don't have to look at hypotheticals in this situation because we have in the Third Circuit since 1986 and in the District of Columbia Circuit since 1995, those two circuits permit Federal employees to bring their constitutional claims in the circuit court.

We are unable to find a single instance in which there has been one of these mixed claims of a -- a constitutional claim and a statutory claim brought in those circuits.

Justice Antonin Scalia: In -- in those cases did the -- did the plaintiffs also have nonconstitutional claims which they were pursuing in the Federal Circuit?

Mr. Schwartz: We -- we were unable to -- to find any example of -- of that happening.

Justice Antonin Scalia: Well, that's -- that's the problem here.

I mean, yes, if all you have is a constitutional claim, I suppose the system you propose would work.

You go to the district court.

But where -- where you have both, it's a problem.

Mr. Schwartz: I -- and I -- I agree that that is a more difficult situation.

But it's not the situation presented by the facts of this case at least.

Justice Elena Kagan: You suggested that it's a situation that doesn't often arise and I guess that puzzles me.

Why wouldn't it often arise?

Mr. Schwartz: I don't know why it doesn't often arise.

It -- it might be that -- that people prefer to leave their claims in the Merit Systems Protection Board.

Justice Sonia Sotomayor: Counsel, do you--

Justice Anthony Kennedy: What -- what would happen if -- if the employee is fired because of his or her religion and he goes to MSPB.

Mr. Schwartz: Yes.

Justice Anthony Kennedy: And this is a First Amendment claim.

MSPB has to say, well, this is not adequate cause and find something else in the statute?

It can't look at the constitutional aspect of the claim?

Mr. Schwartz: Your Honor, if -- if an employee is -- is fired because of his religion, there's -- there is a -- a separate procedure for discrimination claims such as could be brought under Title VII; and in fact, in -- those claims do go directly to the Supreme Court.

Justice Anthony Kennedy: No, because -- well, let's -- then I have to do a new hypothetical.

Because he gave a -- a speech--

Mr. Schwartz: Yes.

Justice Anthony Kennedy: --saying there is no global warming or something.

Mr. Schwartz: Yes.

That claim now could be brought before the Merit Systems Protection Board, and I agree that -- that it can be brought before the Merit Systems Protection Board, and I'm not urging this Court to say that that--

Justice Anthony Kennedy: But the MSPB -- we can't look at the First Amendment?

Mr. Schwartz: --No.

No.

Justice Ruth Bader Ginsburg: Mr. Schwartz--

Chief Justice John G. Roberts: I'm sorry, just to clarify: No, they wouldn't say that?

Or -- I lost this, which way your "no" was going.

Mr. Schwartz: Okay.

I'll retract my "no" then.

Justice Ruth Bader Ginsburg: --Mr. Schwartz, I thought you're talking about the constitutionality of a statute--

Mr. Schwartz: That's it exactly, Your Honor.

Justice Ruth Bader Ginsburg: --not any constitutional claim that there has been unconstitutional action by an official.

I thought that your point was when you're challenging the constitutionality of a statute then you have a right to go to the district court.

Mr. Schwartz: That is my point exactly, Your Honor.

Chief Justice John G. Roberts: Could I -- I please verify your answer to Justice Kennedy before you move on?

Mr. Schwartz: Yes.

I am drawing a distinction between a challenge to the constitutionality of a statute, as the Petitioners are doing here, and that is beyond the -- the authority of the Merit Systems--

Justice Sonia Sotomayor: --Are you talking about a facial challenge to the statute?

As a -- am I understanding you right?

A facial challenge goes to the district court and a constitutional as-applied challenge goes to the commission?

Mr. Schwartz: --Yes.

And -- and that -- that's the procedure.

The as-applied challenge, those cases are bread and butter cases at the Merit Systems Protection Board now.

If somebody says, I was fired because I wrote a letter to the editor that my boss didn't like, he is not challenging the constitutional--

Justice Anthony Kennedy: But I -- I was leading up to say, why should there be a difference?

If the MSPB has this expertise in as-applied, why doesn't it have it for facial?

I mean, the expertise question, it can't be a matter of expertise; or am I wrong about that?

Mr. Schwartz: --Well, I would -- with due respect, I -- I -- I disagree with you, Your Honor.

The expertise required to decide the present Petitioners' claim and the letter to the editor claim is totally different.

In the letter to the editor claim, the facts concern the facts of the workplace, what was my boss's motivation, what were his actual reasons for firing me.

Justice Antonin Scalia: Well, and whether that reason was justifiable.

And isn't it the case that whenever the reason is an unconstitutional reason, you would have an as-applied challenge, right?

Mr. Schwartz: Yes.

Justice Antonin Scalia: So why do you need a facial challenge in addition?

I thought that we always try to do as-applied first and facial second.

So why isn't it enough that you can go to the Merit Systems Protection Board and then to the Federal Circuit saying that this action was wrong and not allowed under the statute?

And -- and if -- if the reason it was wrong was that it was unconstitutional, what's -- what's the problem?

Mr. Schwartz: Justice Scalia, I -- I agree that in the as-applied challenge, where somebody says my rights were violated, that case now goes and should go to the Merit Systems Protection Board.

In the present case, there is no challenge to the application of a statute.

There is no challenge to any decision that was made by -- by managers.

The challenge is to the decision made by Congress in enacting--

Chief Justice John G. Roberts: So that's the rule -- that's the rule that you would apply across the board, so only in the case of a facial challenge do you get to go to the district court?

If it's an as-applied; this law was unconstitutional as applied to me, that's still before the MSPB?

Mr. Schwartz: --Yes.

And -- and--

Justice Sonia Sotomayor: Could you tell me how -- how -- how this is any different than the administrative system and review system that was reviewed in Thunder Basin and Illinois Long-Term Care?

In both those statutes, the agencies weren't permitted to consider facial challenges, constitutional challenges; and we said that's okay, they can't, but the reviewing court can.

So how's that any different from the situation you're proposing here?

Mr. Schwartz: --Yes.

There are several significant differences.

I'd like -- I'd like to go through them.

First of all, in the Thunder Basin case the -- the constitutional challenge was -- was to the procedures that -- that were being applied.

The -- the agency, the Mine Safety Commission, was -- was an expert in those procedures.

The facts that were involved in making that determination were the very facts that this Mine Safety Commission had expertise in.

In the present case, the challenge is to the Selective Service laws.

The Merit Systems Protection Board--

Justice Sonia Sotomayor: But please deal with the language of both cases.

Both cases said even if the agency can't review a constitutional challenge, there is still review within the Federal Circuit, within the court -- within the circuit courts and that's okay.

Mr. Schwartz: --Yes.

Justice Sonia Sotomayor: So why isn't that okay here?

I think that was Justice Scalia's question to you.

I know that you say well, the Federal Circuit won't have a record.

But the government says if it wants a record, it can remand and ask the agency to develop it.

So what's wrong with that procedure?

Mr. Schwartz: The first thing that's wrong -- that's wrong with that procedure as it would be applied to this case is that it's -- it's a vast departure from the Civil Service Reform Act scheme as it was created by Congress; and -- and because that scheme involves the Merit Systems Protection Board acting as a trial court; and -- and given the first level of review and in effect substituting for the -- for a district court.

And then--

Justice Sonia Sotomayor: Isn't one of the challenges here by one of the Petitioners that he was constructively discharged?

Isn't that an issue that the board is better suited to determine in the first instance, whether there was at all a constructive discharge?

Mr. Schwartz: --Well, in fact, it's -- it's just the reverse of that, where that one Petitioner would be taking the position that he was not constructively discharged.

If he was constructively discharged, the Merit Systems Protection Board arguably would have jurisdiction.

If he voluntarily resigned under the government's theory, he would be among the class of Federal employees -- it constitutes about a third of Federal employees -- who have no appellate rights to the Merit Systems Protection Board.

Justice Ruth Bader Ginsburg: I thought your -- your position was that the Merit Systems Protection Board has said we have no authority to adjudicate constitutional questions, period.

Mr. Schwartz: Yes.

Justice Ruth Bader Ginsburg: So I thought the court was saying that this claim is dismissed because we don't have jurisdiction to deal with that kind of question.

And then your next -- the Federal Circuit, well, how can the Federal Circuit exercise jurisdiction over a claim when the first-instance decisionmaker said it didn't have authority to render the decision?

Mr. Schwartz: Yes.

Justice Ruth Bader Ginsburg: I thought that that's what your position was.

Mr. Schwartz: That is what our position is, and, and it leaves open the question of just what the Federal Circuit is going to do after the Merit Systems Protection Board has dismissed for lack of jurisdiction.

Chief Justice John G. Roberts: But that's not your position, as I understood it, in your response to my earlier question.

You said that the -- it is all right to have as-applied constitutional challenges presented to the MSPB or not presented but then reviewed in the Federal Circuit.

Mr. Schwartz: My position is that if the MSPB has jurisdiction to find a statute -- that since the MSPB does not have jurisdiction to find a statute unconstitutional, any claim in which the employee is asking for them to find a statute unconstitutional is one that is outside of the CSRA scheme.

Chief Justice John G. Roberts: Okay, but -- but within the statutory scheme, are you saying that a claim that this statute is, while not facially unconstitutional, unconstitutional as applied to me?

Where does that go?

Mr. Schwartz: Mr. Chief Justice, I apologize for my confusion about--

Chief Justice John G. Roberts: I think it's probably mine.

Mr. Schwartz: --I would defer to you, Your Honor.

Chief Justice John G. Roberts: Where does -- where does that claim go?

Mr. Schwartz: My confusion is about the use of the term "as-applied".

And I rather than using terms such as "facial" or "as-applied" where the dividing line can be somewhat blurry, I propose drawing the dividing line between a case where the employee is saying, this statute is unconstitutional, I'm saying Congress made a mistake.

Justice Elena Kagan: Well, why wouldn't the dividing line be -- and I think that this is consistent with your argument -- the dividing line should be where the MSPB itself could decide the claim.

Mr. Schwartz: Yes.

Justice Elena Kagan: If the MSPB can decide the claim, then it goes to the MSPB.

If the MSPB can't decide the claim, I think is what you are saying, saying then this has to go to the district court.

Mr. Schwartz: Yes.

Justice Elena Kagan: And you're saying that the MSPB has said that, although it can decide, can decide, cases where he says, you know, my supervisor fired me for a discriminatory reason, that that's within the scope of the MSPB's authority, a claim like this, which is that the Selective Service Act is unconstitutional full stop, is not within the scope of the MSPB's authority.

Is that right?

Mr. Schwartz: Yes, that's absolutely correct.

And the cases that would not be within the MSPB's authority would include cases where the employee says the statute is unconstitutional and would also include the million or so Federal employees who, as the government says, have no appellate rights to the MSPB, all -- all of those persons, career; those persons, summer interns, FBI employees.

Chief Justice John G. Roberts: What type, summer interns and FBI employees?

Mr. Schwartz: Yes.

Chief Justice John G. Roberts: I assume that's for very different reasons, one because they are summer interns and you know, if they are impermissibly treated it's kind of, they are summer interns.

There is no reason to get--

[Laughter]

I don't -- I don't mean that facetiously.

I mean what they're saying is that there is some level of de minimis personnel actions when you're talking about the vast Federal bureaucracy that we don't have to really give the whole panoply of rights.

And FBI agents, I assume it's because of the sensitive nature of what they deal with.

So I guess what I'm saying is do you want us to focus on the millions of employees who would now be going to district court or do you want us to focus on the small number that have facial constitutional challenges?

Mr. Schwartz: Actually, Your Honor, it's the government that is taking the position that the summer interns, the FBI agents, all the government attorneys, Federal Government chaplains, who have no right to appeal to the MSPB, all of those persons the government says can bring their constitutional claims to the district court.

Justice Antonin Scalia: And why is that wrong?

It seems to me that's what the, what the Administrative Procedure Act says, that if there is no other effective means of judicial review you get judicial review under the APA.

These people have no effective right because they can't go to the MSPB and can't go to the Federal Circuit, so they have rights in the district court.

That's not a problem.

The problem is the people who do have rights to go to the Merit System Protection Board, right, who have constitutional claims based on the unconstitutionality of a statute?

MR. SCHWARTZ, well I disagree with that, Justice Scalia.

Why?

Mr. Schwartz: Because the summer intern, the FBI agent, the nonpreference employee, the accepted service employees, unless they have a claim that they can take to the Merit Systems Protection Board, they are precluded from going to any other court.

They're precluded under the Administrative Procedures Act.

That's this Court's Fausto decision, and in this Court's Fausto decision a Federal employee who could not bring a case, his appeal from the Merit Systems Protection Board, tried to bring a Back Pay Act claim in the Court of Claims and this court said, no, that is precluded.

and what the government is doing is saying, you got a right in Fausto, but for constitutional claims Mr. Fausto had it right.

Justice Antonin Scalia: Yes, but that's -- that's entirely logical.

Fausto in effect said that the statutory structure simply provides no cause of action for these people, okay?

Mr. Schwartz: Yes.

Justice Antonin Scalia: They are not entitled to--

anything.

But I don't think that there is anything in the, in the civil service laws that say these people are not entitled to constitutional protections.

So I don't think that -- that Fausto rules this out.

Mr. Schwartz: Well I -- I agree with you completely that, that constitutional claims are different from statutory claims.

Justice Antonin Scalia: Exactly.

Mr. Schwartz: Or damages case.

Justice Antonin Scalia: It's those that I say that people not covered by appeals to the Merit Systems Protection Board, they can bring those constitutional claims, even though they can't bring statutory claims.

Mr. Schwartz: Yes.

And that's, that's the position I'm taking.

I'm taking it a step beyond the government, however.

Justice Antonin Scalia: Yes.

You're taking -- I'm saying that's true only with respect to those people who have no right to appeal to the Merit Systems Protection Board.

You're going further.

Mr. Schwartz: Yes.

Justice Antonin Scalia: And you're saying even the people who can appeal to the Merit Systems Protection Board, right, can go directly to the district court.

That's a different question.

Mr. Schwartz: But I -- I'm limiting that to those people who can appeal to the Merit Systems Protection Board, but the Merit Systems Protection Board has no authority to grant them relief.

Justice Samuel Alito: There are at least -- at least three different kind of constitutional claims and I'm not sure where you're drawing the line with respect to your argument.

There is a claim that -- that the agency acted in an unconstitutional manner, not that any statute is unconstitutional--

Mr. Schwartz: Yes.

Justice Samuel Alito: --but there is unconstitutional executive action.

There is an as applied claim.

Let's say that the plaintiff says that the registration requirement is unconstitutional as applied to me, not to other people, but to me because I'm a conscientious objector or I have religious objections to military action that the United States is taking at this particular time and then there is -- there is a claim that the statute is unconstitutional in space.

Where do you -- which of those can the Merit Systems Protection Review Board decide, just the first category?

Mr. Schwartz: Just the first category.

Justice Samuel Alito: So it's not a distinction between as-applied and facial.

Mr. Schwartz: No, no, no.

And that's, that's -- that's why -- that's why I'm specifically not trying to say where the line is between asapplied and facial.

Justice Ruth Bader Ginsburg: I thought your position was that whatever the MSPB cannot hear, then you go to the district court.

Mr. Schwartz: That is absolutely correct.

Justice Elena Kagan: And in your original briefs, Mr. Schwartz, you suggested that if the MSPB can't hear a claim, neither can the Federal Circuit.

And as I understood the government's brief, the government comes back and said that's not the case.

Even when the MSPB can't hear a claim, the Federal Circuit could hear it.

Now, then there is a question of if there is a necessity for a record how does the record get developed.

But do you now concede that the Federal Circuit could hear the claim as a matter, you know, at the first level?

Mr. Schwartz: I agree that a system can be proposed to get these claims to the Federal circuit.

However, it's not the system of the -- that Congress created in the Civil Service Reform Act.

And the significance of the contortions that have to be gone through to get these claims to the Federal Circuit demonstrates that it's not fairly discernible from the Civil Service Reform Act as written by Congress that--

Justice Ruth Bader Ginsburg: Do you take the position that, the MSPB having no jurisdiction and saying it has no jurisdiction it, can adjudicate this matter, well then, a reviewing court has no jurisdiction to, to -- to review?

There is nothing to review because the MSPB said, we have no jurisdiction?

Mr. Schwartz: --That's how it would work in the real world.

I mean, what is -- what is the Federal Circuit supposed to do?

It has an order from the MSPB that says, we dismiss for lack of jurisdiction.

The Federal Circuit -- and the government doesn't say that that is wrong.

The Federal Circuit says: We affirm your dismissal and now we'll move on to the merits.

That -- it's possible we could have a system like that, but that isn't the system of the Civil Service Reform Act and that's not the way that appellate courts normally function.

Chief Justice John G. Roberts: Is it really a question of jurisdiction of the MSPB?

Mr. Schwartz: Well--

Chief Justice John G. Roberts: "Jurisdiction" is a word with many meanings.

Mr. Schwartz: --Yes.

And -- and -- and there is a general rule with that -- there have been exceptions to -- that administrative agencies do not have authority to rule on constitutionality of statutes.

Justice Stephen G. Breyer: So what's the problem?

He says -- the employee says: I was dismissed.

MSPB says: That's right, you were and it's lawful.

The employee says: You didn't consider my argument that the relevant statute was unconstitutional.

MSPB says: No, we can't.

The Federal Circuit says: But we can, so make your argument.

What's the problem?

And then I'll decide it.

And if they decide it's unconstitutional, then the action of the MSPB is wrong.

Mr. Schwartz: That's a system that, that could come up.

It's not the system of the Civil Service Reform Act.

Because--

Justice Stephen G. Breyer: I don't know.

I'm just saying is there any practical problem with that?

Mr. Schwartz: --Oh, it presents immense practical problem.

Justice Stephen G. Breyer: Which is?

Mr. Schwartz: Which is that the Merit Systems Protection Board is not going to say we affirm your dismissal or that -- it's not going to reach the merits.

It's going to, it's going to get the paperwork,--

the government is going to--

Justice Stephen G. Breyer: Fine, fine.

What they say is: You have one argument here, that the statute that led to your dismissal is unconstitutional.

Mr. Schwartz: --Yes.

Justice Stephen G. Breyer: We do not have jurisdiction over that, therefore we say you were rightly dismissed.

Mr. Schwartz: Yes.

Justice Stephen G. Breyer: Now, they appeal that, and they say: They are right that they didn't, but you do, so will you please decide that this statute is unconstitutional?

What's the problem?

Mr. Schwartz: Well, that's -- that's an unusual form of--

Justice Stephen G. Breyer: It may be unusual.

I just want to know what's the problem.

I'm not saying there isn't one.

I want to know what's the problem with that.

Mr. Schwartz: --Okay, the problem, if that is the system that's going to be in place, is that it's not quite that straightforward.

It's -- at first the employee has to file his claim in the MSPB with everybody knowing it's going to be dismissed.

He then appeals that dismissal to the Federal Circuit, which affirms the dismissal, says yes, MSPB has no jurisdiction.

Justice Stephen G. Breyer: No, it doesn't affirm the dismissal.

It says the dismissal was unconstitutional; go reinstate it.

Mr. Schwartz: And then in a case such as this one, where -- the reason that this challenge to Rostker is that the facts have changed.

There was extensive factual discovery in Rostker.

So--

Justice Ruth Bader Ginsburg: I thought your point was and hasn't the Federal Circuit said that the MSPB has no jurisdiction to decide, we have no jurisdiction to review.

Mr. Schwartz: --That's what the Federal Circuit had said.

Justice Ruth Bader Ginsburg: And that an appellate court is reviewing a court of first instance.

The scheme that has been proposed would turn the Federal Circuit into a court of first instance, rather than an appellate court.

Mr. Schwartz: And that is why what's proposed by the government is such a departure from the CSRA scheme as written by Congress, in which MSPB has first instance jurisdiction, the Federal Circuit has appellate jurisdiction.

Justice Elena Kagan: Well, isn't your basic answer to Justice Breyer, I mean correct me if I'm wrong, you think that the problem is that there is no record that the Federal Circuit can use to evaluate this constitutional claim.

Mr. Schwartz: That is correct.

Justice Stephen G. Breyer: Well, every day of the week we get constitutional claims and people submit all their arguments in the briefs.

Now, occasionally there is one you have to have factual development and I grant you on that one maybe they could appoint a special master or, if not, send it back.

But they have plenty of authority to get them to argue the facts.

But I doubt -- I don't know if there are such claims.

But I don't see why that would be a problem.

Now, I'm not -- again I'm not giving you an answer, I'm giving you a question.

Mr. Schwartz: The problem is that that's not the scheme written by Congress--

Justice Stephen G. Breyer: That's your conclusion and I want to know what -- what is the practical reason that that wouldn't work or why is that such a big problem to have it work that way?

I'm asking for your answer on that.

Mr. Schwartz: --Okay.

I mean, that's -- that system could work in some cases.

I agree with that.

Justice Stephen G. Breyer: Give me one where it wouldn't.

Mr. Schwartz: Excuse me?

Justice Stephen G. Breyer: Give me one where it wouldn't.

But I don't want to cut into your time.

Your time is up.

Mr. Schwartz: Yes.

Justice Stephen G. Breyer: So you have to be thinking about it and if you want to respond.

Mr. Schwartz: Okay.

Justice Ruth Bader Ginsburg: I thought you said this one.

Mr. Schwartz: Yes.

Justice Ruth Bader Ginsburg: This one, because you want to make a record of all the changes that have occurred in the service and you need much more than briefs.

You need to have maybe testimony from people who have -- who have been working with the changes and the opportunities of limiting service.

Mr. Schwartz: Yes.

That's correct.

This -- this case would be the example.

If there are no further questions, I'd like to reserve the balance of my time.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Feigin.

ORAL ARGUMENT OF ERIC J. FEIGIN ON BEHALF OF THE RESPONDENTS

Mr. Feigin: Thank you.

Mr. Chief Justice, and may it please the Court:

I'd like to begin if I could by addressing the question asked by Justice Kagan, which is why shouldn't the scope of the MSPB's authority be the test for determining whether a claim can be filed in district court?

And I think using that as a test would lead to unclear and easily manipulated jurisdictional rules.

Among other things, it often won't be clear up front whether the MSPB can resolve an employee's claim or not.

A claim that appears at first blush to challenge a statute's constitutionality might be resolved, for instance, by interpreting the statute to avoid the constitutional question, which is something that the MSPB could do.

Justice Elena Kagan: You could just ask the MSPB, Mr. Feigin.

If you bring the claim to the MSPB and then the MSPB says, no, we have no authority to adjudicate this claim, then you know that you're in a world in which the MSPB doesn't have authority, so that you can go to the district court.

Mr. Feigin: Well, I don't think that's consistent with the CSRA, Your Honor, because the way the CSRA works is that you go to the MSPB first and then you go to the Federal Circuit.

And I think everyone agrees that the Federal Circuit--

Justice Elena Kagan: Well, but the CSRA is presuming that the MSPB actually can decide something.

Mr. Feigin: --I don't think it's presuming that any more than 42 U.S.C. 405(g) was presuming that in Illinois Council or the Mine Act was presuming that in Thunder Basin Coal.

That it's often useful to have constitutional claims presented to an agency in the first instance, even if the agency can't resolve those claims, because it allows the agency to figure out -- for example, in the case that this Court was discussing with Mr. Schwartz about circumstances where there might be nonconstitutional claims and constitutional claims, the agency might be able to moo out the case on nonconstitutional grounds.

The constitutional--

Justice Ruth Bader Ginsburg: Those statutes to which you refer said that no action on the claim for Social Security benefits, no action shall be brought under 1331.

There is no such provision here.

Mr. Feigin: --That was true in Illinois Council and some of the other cases we cite.

But in Thunder Basin the Court was very clear that the statute was facially silent as to the preclusion of pre-enforcement claims like the sort that were at issue in Thunder Basin.

The Court nevertheless held that the claim in Thunder Basin was precluded, and it held that even though it acknowledged that it might be possible that the constitutional claim that was raised by the plaintiff in that case couldn't be addressed in first instance by the Mine Commission.

Now, the MSPB here is very analogous to the Mine Commission.

Justice Elena Kagan: Well, could you help me with something, because I agree with you, Thunder Basin is a very strong case for you, but McNary is a very strong case for Mr. Schwartz.

And I read those two opinions and frankly I have a tough time reconciling them.

So could you tell me how you do?

Mr. Feigin: We prefer Thunder Basin, Your Honor.

[Laughter]

Justice Elena Kagan: Yes, I imagine.

Mr. Feigin: Your Honor, I think, as we suggest in our brief, McNary actually presented a very specialized circumstance in several respects.

First of all, there was a special statutory provision in that case that limited judicial review of -- in that case to the record that had already been developed, and that's not true here.

Second, the Court was very concerned in McNary that if the plaintiffs weren't allowed to bring their claims in district court they wouldn't be able to receive any meaningful judicial review at all.

Now, here the plaintiffs in this case can get meaningful judicial review from the Federal Circuit, which every one agrees has the authority to resolve a constitutional challenge to a statute.

Now, if I could, I'd like to address I think some confusions the Chief Justice was noting over the meaning of the term MSPB.

Now, before getting into this I'd like to acknowledge that when Petitioner Elgin did bring this case to the MSPB the government argued that the MSPB had no jurisdiction.

We have conceded below and we concede here that we were wrong about that.

We do not think Elgin should be prejudiced by the government's position.

If he were to file a motion now to reopen his case to the MSPB, the government would support that.

Here's how it should have worked if the government--

Justice Sonia Sotomayor: Is that your -- is that your answer for that's why it's an out for their failure to have gone to the Federal Circuit?

Mr. Feigin: --Our answer -- our answer--

Justice Sonia Sotomayor: Will they be able -- if the commission says, no, we won't reopen, do they have any avenue now to go to the Federal Circuit?

Mr. Feigin: --Well, they can appeal that decision to the Federal Circuit, and the government will again support the fact that the case ought to be reopened.

Justice Sonia Sotomayor: Please finish with your answer.

Mr. Feigin: Let me now address what should have happened when the case went to the MSPB.

The MSPB would have had jurisdiction over the case in the sense that the challenge to the adverse action is properly before the MSPB.

I think that's very clear under 5 U.S.C. 7513(d) and 5 U.S.C. 7701 (a) which grant the MSPB jurisdiction over adverse actions under the CSRA.

Now the MSPB would not be able to adjudicate the constitutionality, would not be able to issue an order striking down a Federal statute and to determine that that would be what would be necessary here in order to grant the plaintiff's relief.

What it would have done is, first of all, it could have accepted any evidence that the plaintiffs or the government wished to submit on the constitutional issue in order to build up the administrative record for review--

Chief Justice John G. Roberts: If I can ask you to pause briefly on that question.

Mr. Feigin: --Yes.

Chief Justice John G. Roberts: So the government -- if Mr. Schwartz comes in before the MSPB and says, we have three witnesses who are only going to testify on the constitutional issue; I have this volume of evidence about what's happening in the military; it's only relevant in the constitutional issue; and, you know, it's going to take us two days to present this.

The government is going to say it's okay with us, right?

Mr. Feigin: Well, Your Honor--

Chief Justice John G. Roberts: They are not going to object that that's beyond the jurisdiction of the agency to decide.

Mr. Feigin: --We will not object that it's not beyond the jurisdiction of the agency to decide--

Justice Antonin Scalia: TWell, I will object.

What is the agency taking evidence on an issue that it has no jurisdiction to decide?

That is absolutely weird.

[Laughter]

Mr. Feigin: --Well, Your Honor, I think this is fairly analogous, although not perfectly analogous, to the fairly common circumstance where, for example, a district court reserves to itself a decision on the merits of an action and then delegates to a magistrate judge decisions on discovery.

Now the only limitation--

Justice Elena Kagan: Well, its very different because the magistrate can come back to the district court judge and say, we have a tough one, Your Honor, why don't you decide it?

I mean, here you're stipulating that the board has no power to decide this question.

Call it jurisdiction; call it something else.

The board cannot decide the question, but the board is going to now become the arbiter of discovery disputes?

The fact finder?

I mean, weird is a good word for it.

Mr. Feigin: --Well, first of all, Your Honor, the only thing that we think the MSPB lacks authority to do, the only thing is to issue an order on the merits declaring a Federal statute unconstitutional.

It is competent to resolve discovery--

Justice Samuel Alito: How can it -- how can it deal with discovery without knowing -- without going into the merits of the constitutional claim?

In other words, the parties can just put in any evidence they any evidence they want?

Mr. Feigin: --Well--

Justice Samuel Alito: Any evidence they think might be possibly be relevant to the case, they can put that in.

It can be discovery of anything.

Mr. Feigin: --Well, there may be disputes as to the scope of discovery.

And those -- resolution of those disputes may touch on the merits.

We think the MSPB can do all of that.

The only thing MSPB lacks authority to do, according to the MSPB, is to issue an order striking down a Federal statute as unconstitutional.

Justice Elena Kagan: Do you think the MSPB should find facts with regard to this claim?

Mr. Feigin: Well, first of all, Your Honor, I think this case isn't going to require any fact finding because I think it's worth noting that both judges that have addressed Petitioner's arguments on the merits, the district court judge and the concurring judge in the Court of Appeals were able to resolve the claim without fact finding.

Justice Elena Kagan: I would think, Mr. Feigin, it would depend on how it's litigated.

But in a case in which there is some fact finding to be made, would the MSPB have authority to find facts?

Mr. Feigin: Yes, it would, Your Honor.

Now I'd like to add that in many cases--

Justice Ruth Bader Ginsburg: Can you go back and tell me when the government changed its position.

It was my understanding that up until, well certainly this case was litigated, the government was taking the position MSPB has no jurisdiction to pass on the constitutionality of a statute.

When did government back away from that position?

When did it say no, we were wrong; they do have jurisdiction?

Mr. Feigin: --Well, Your Honor, I need to separate out two things.

First, it is still our position that the MSPB has no authority to declare a Federal statute unconstitutional.

Now the government was taking the position that in cases where an employee had been removed pursuant to a statutory bar, that the MSPB lacked jurisdiction to hear an appeal of a case like that.

And the reason the government argued was not because the MSPB lacked authority to decide the constitutionality of a statute, although we believe that, too, but because the government was arguing erroneously that an employee who is removed based on a statutory bar that should have prevented his hiring in the first place wasn't an employee within the meaning of 5 U.S.C. 7511.

Now the government no longer takes that 5 U.S.C. 7511 position.

We've been consistent on that in the Court of Appeals and in this Court, and, therefore, we believe that the MSPB did properly have jurisdiction over the action in this case.

Now, when it goes up to the MSPB, the MS -- and after -- the MSPB would then deny relief on the merits because it would lack the authority to declare a Federal statute unconstitutional.

Justice Stephen G. Breyer: I don't want to delay the -- don't pause too long, but I'm curious.

Where did this rule -- is there a statute or something that says an agency can't say this action would be unconstitutional?

Where does that idea come from?

Mr. Feigin: So there is not a statute, Your Honor.

This Court has said in several cases that administrative agencies generally lack the authority to declare a statute unconstitutional.

It's clear from Thunder Basin that that isn't a Federal limitation on the authority of Federal agencies.

That is to say, if Congress wanted to give an agency the authority to adjudicate the constitutionality of a statute, it could.

And the Court noted that the mine commission in Thunder Basin believed it did have the authority to adjudicate the constitutionality of statutes, although the Court didn't reach whether the mine commission was correct about that.

And in this case, the MSPB believes, consistent with this Court's repeated statements, that it lacks authority to adjudicate the constitutionality of statutes.

Now if the Court decides that the best way to reconcile the scheme would simply be to say that the MSPB does have the authority to adjudicate the constitutionality of statutes, I think that would make much more sense than the position the Petitioner is urging, and here's an example, I think, that illustrates why the position the Petitioners are urging will lead to confusion of jurisdictional rules and manipulation of jurisdictional rules.

So if you imagine two employees who were fired by an employing agency for leaking information to the press, confidential information to the press, they both challenge their removals, but they both raise slightly different arguments.

The first one says, well, I don't think the employment statute should be construed to allow me to be fired for this reason because I think the employment statutes should be construed with First Amendment principles in mind and shouldn't reach this case.

The second one says, I concede that the employment statutes allow my firing for this reason, but I think those -- I think that statute is unconstitutional as applied.

Now those are really the same claim and--

Justice Elena Kagan: Well, Mr. Feigin, they might well be the same claim, but if the MSPB can decide the one and cannot decide the other, that's a relevant distinction.

Now, you might be right in what you said.

Well, maybe one answer is if the MSPB can decide both.

But as long as the MSPB can decide the one or the other, it seems, great, I mean, it seems like a sensible dividing line.

Mr. Feigin: --Well, Your Honor, even if the MSPB lacks the authority to strike down a Federal statute, I still think it might be able to adjudicate the claim of the employee, the second employee, who brings it as an as-applied challenge because the Court would -- I'm sorry not the Court -- the MSPB could decide that case on the same constitutional avoidance grounds that are resolved -- that are urged by the first employee.

That is, they really are the same case.

Before striking down a statute as constitutional, this Court all the time, it instructs lower courts, and this would be true of agencies, too, should interpret the statutes to avoid any significant constitutional--

Justice Samuel Alito: They are not the same claim.

They are related, but one says the statute means something; and insofar as it's applied to a particular situation, it's unconstitutional.

The other one says it doesn't mean that.

Mr. Feigin: --Well, Your Honor, I think they are the same in the respect that as I was just saying to Justice Kagan, if the MSPB--

Justice Samuel Alito: When we just wanted to rephrase that -- If this Court adopts a certain interpretation based on principle of constitutional avoidance, do you think the Court is rewriting the statute?

Mr. Feigin: --No, Your Honor, but there may be ambiguity in a statute that the Court interprets to avoid a significant constitutional question.

So maybe I can give another example that might flush this out a little bit.

There is a statute 5 U.S.C. 7311 that bars from Federal employment people who have participated in strikes.

Now it's easy to think of an employee who raises a factual or statutory challenge to that claim.

He says that what he did wasn't participating in a strike, either factually or shouldn't be considered participating in a strike within the scope of the statute, and he also challenges the statute on constitutional grounds.

And the most common case brought to the MSPB, in our experience, that raises a constitutional claim also raises the sort of factual and statutory claims I was just suggesting.

Now the MSPB might resolve that first question -- those first set of questions in such a way as to avoid the constitutional question by saying the statute doesn't reach the conduct that the particular employee engaged in.

And if we imagine instead that the employee had only brought the constitutional claim, which would be kind of a strange way to litigate, because he would be giving up arguments on which he might win, I still think that the MSPB could decide look, before we send this off to the Federal circuit and decide that the only way we can grant you relief is to say that a Federal statute is unconstitutional, which is something we don't think we can do, we should at least take a look at the statute to see whether these somewhat ambiguous terms "participate" and "strike" actually do apply to your conduct.

And by failing to give the MSPB the first crack at doing that--

Justice Ruth Bader Ginsburg: Is there any such possibility in this case?

I mean, the statute says: Men must register for the draft.

There is no way to avoid, to reread that statute, to say anything other than that.

So I don't, I don't see any constitutional avoidance.

Mr. Feigin: --I agree with that, Justice Ginsburg.

In this case, we don't think the constitutional question can be avoided, and we don't think the MSPB could have granted relief.

But I don't think the Court should essentially throw everything out just because of this case.

Their position is going to make for unclear jurisdictional rules, and employees aren't going to know where they're entitled to go or where they're supposed to go, because--

Justice Sonia Sotomayor: To go back to your interesting suggestion that the board should decide the constitutional issue, I've just been spending a little bit of time going through the act, and you're certainly -- it doesn't appear that there's anything in the act that precludes them from granting any appropriate relief with respect to an unlawful discharge.

Am I correct?

Mr. Feigin: --That's correct, Your Honor.

The statute does not, as we explain in our brief, draw any distinction between the types of arguments that would be made in seeking to set aside an unlawful discharge--

Justice Elena Kagan: Well, that's weird in another way, isn't it, Mr. Feigin?

Because, can we really imagine in the real world the MSPB deciding that the Selective Service Act is unconstitutional?

I mean, what do they know about that question?

Mr. Feigin: --Well, as everyone agrees, and as Mr. Schwartz was discussing with the Court, the MSPB does have expertise on -- in constitutional claims.

The MSPB are a set of -- a set of persons that are appointed by the President and confirmed by the Senate.

Justice Elena Kagan: Well, but this is a question, and -- and you can -- I take the point that I'm just talking about this case.

But this is a question about whether women should have to register for the draft in the same way as men should.

That goes to defense policy.

It goes to equal protection law.

It doesn't seem to have anything to do with -- with workplace issues of the kinds that the MSPB is expert on.

Mr. Feigin: Well, I think that's right, Justice Kagan, but the CSRA doesn't draw distinctions between the types of arguments that are being made.

It draws distinctions, as Justice Sotomayor was just suggesting, about what sorts of personnel actions it covers.

And I think--

Justice Samuel Alito: Congress -- Congress is unhappy when this Court holds a statute unconstitutional.

[Laughter]

Do you think it's really likely that they intended for the MS -- the MSPB to have the authority to declare its acts unconstitutional?

Mr. Feigin: --I don't, Your Honor.

And that's why our primary position is that the MSPB does not have that authority.

However--

Justice Stephen G. Breyer: Why?

I mean, it sounds -- really what the argument boils down to is, is if we accept your position, there's a kind of procedural complexity and anomaly.

And your argument is that his position's worse.

Yours is also fairly bad.

[Laughter]

So, that's his point.

So I mean -- but that's why I wondered.

I mean, U.S. magistrates all, tax courts, all kinds of people as a preliminary matter have jobs where they say we think a statute is unconstitutional.

I suppose millions -- I don't know how many.

So -- so is this coming that they can't do it from some kind of lore from Kenneth Davis or something?

What's -- what's the basis of this?

And wouldn't it be simpler if you just said it says they can take appropriate relief; they can take appropriate relief, period.

End of the matter.

Mr. Feigin: --It's coming from statements by this Court, and also statements by Kenneth Davis in 1958.

Administrative agency--

Justice Stephen G. Breyer: So somebody quoted Kenneth Davis in 1958, and wrote it into an opinion in a holding?

Mr. Feigin: --No.

The Court usually just sort of says this in passing.

And the Court--

Justice Stephen G. Breyer: So Kenneth Davis said this in 1958.

Mr. Feigin: --The Court made very clear in Thunder Basin this is just a general presumption about the authority of administrative agencies.

It doesn't have to be--

Justice Ruth Bader Ginsburg: Johnson v. Robison is one such case.

I don't recall in that case anybody referring to an -- any administrative law treatise.

Mr. Feigin: --Well, that treatise is cited -- for example, by -- the Court cites the Mine Commission cases that themselves cite the treatise.

But the point is, Justice Breyer, even if our rule does have a couple of hiccups with it, we do think it is much superior to the rule that Petitioners are urging, because there are clear jurisdictional rules.

We have--

Chief Justice John G. Roberts: If I could just focus there.

In your brief, you're quite careful, and you have been today, to talk to even if the MSPB lacked this authority.

It's -- it's your position that the MSPB does lack this authority in fact; right?

It's not just the MSPB's position.

Mr. Feigin: --Yes, we agree with the MSPB's position that it lacks the authority to strike down a statute as unconstitutional.

However, if it is a difference between adopting Petitioners' position or holding that the MSPB has the authority to declare a statute unconstitutional, we think Congress would have greatly preferred the latter, because that preserves the -- the basic idea of the CSRA, which was to consolidate and streamline judicial review.

This Court recognized in Fausto Congress specifically did not want challenges to adverse actions to go through district court and to the court of appeals, and get a duplicative and wasteful two-layer judicial review.

Justice Samuel Alito: If somebody who drafted or voted for the Civil Service Reform Act had thought about a case like this, where it's a pure question of law, a facial challenge to constitutionality of a statute, do you think they would have said well, the way we think that this should be handled is this scheme that you have proposed?

Mr. Feigin: I think they would have preferred it to a scheme where first of all, the claims go to district court, which is precisely what the CSRA was trying to eliminate.

And second of all, to a scheme where it becomes confusing and dependent on precisely how a plaintiff frames his argument which court winds up entertaining the claim.

Now--

Justice Ruth Bader Ginsburg: Do you know of any other -- any other case where an appellant court has authority to decide a question that the court of first instance lacked authority to decide?

You say MSPB says it has no authority, and you agree with that.

I couldn't think of another case where a court of appeals, which is a court of review, not first view, substitutes itself for an incompetent court of first instance.

Mr. Feigin: --Well, Your Honor, first of all, we cite several examples of courts of appeals deciding constitutional questions in the first instance, at pages 37 to 38 in our brief.

Another would be this Court's decision in INS v. Chadha, the legislative veto case, which came up from the Board of Immigration Appeals.

The Board of Immigration Appeals said it didn't have authority to adjudicate the separation of powers question.

It was reviewed by the Ninth Circuit and then reviewed by this Court.

Justice Elena Kagan: Mr. Feigin, could I go back to the Chief Justice's question about what actually would happen in the MSPB.

Presumably in this case, what the plaintiffs seek to do is to develop an extensive factual record showing how much has changed in the military in terms of the -- the -- the role that women play in the military.

And that it's almost impossible to litigate this kind of claim without having such a record.

That's the entire basis for -- for arguing that Rostker is outmoded, given current military operations.

So how could the -- the plaintiff develop that record that is needed to litigate this claim?

Mr. Feigin: He would develop it in the MSPB, either in the first instance on the initial appeal, or the MSPB could let it go to the Federal circuit without having developed an administrative record.

And the Federal circuit if, unlike either of the judges to address the merits in this case, believed that a factual record was necessary, it could remand to the MSPB with instructions that the MSPB take evidence and develop it--

Justice Antonin Scalia: I don't like that at all.

That's ridiculous.

Send it back to an agency that has no jurisdiction over the question?

Make fact-findings on this -- on this question over which you have no jurisdiction.

Can you give any example where -- where that occurs elsewhere?

Why -- why wouldn't the -- the preferable course be to appoint a master, have the Federal circuit appoint a master to do it?

Mr. Feigin: --Your Honor, if the Court believes that that is a better way to reconcile the scheme, we wouldn't oppose that either, but--

Chief Justice John G. Roberts: Well, I don't like that.

[Laughter]

I mean, the idea of -- the special masters floating around freely every time you get one of these cases?

I mean, what -- inevitably what's going to happen is that you're going to have a more or less permanent special master who gets all these things.

You're not going to appoint 85 special masters if there are 85 of these sorts of claims.

It seems to me you've got an agency there that's expert in the interrelation between the different provisions in the statute.

And why don't -- you know, why don't -- they make fact-findings all the time in -- in areas within their authority to decide.

It seems to me it's ready-made for sending these things back.

Mr. Feigin: --That was our position, Your Honor.

Justice Antonin Scalia: But, but, but -- but this is not an area that's within their expertise to decide.

What do they know about -- about the military?

And when is that ever -- ever relevant to anything that they decide?

It's utterly irrelevant to their work.

And you're telling them to take--

Mr. Feigin: Well, first of all, Your Honor, I think it's actually going to be a fairly rare case in which a challenge to a legislative act, passing a statute, is really going to turn on some sort of factual finding--

Justice Elena Kagan: Well, this is--

Mr. Feigin: --like a credibility determination -- like a credibility determination or something that's uniquely within the competence of a trial court or an agency with trial court-like powers.

I think what might be more common, Justice Kagan, is that you might need to develop some sort of administrative record.

But once the evidence is submitted, the conclusions one would draw from that evidence would be fairly obvious.

For example, in Rostker v. Goldberg, there was discovery, there was evidence submitted, and then the parties were able to stipulate to the facts that would set forth review.

So in this case, for example, I don't think there's really going to be a dispute that the MSPB is going to have to resolve about what sorts of positions women can serve in, in the military.

Justice Samuel Alito: I suspect that if this were litigated in district court, the government would move to dismiss and would take the position that it doesn't matter; even if women can now do 99 percent of the -- the things that are done in the military, the -- the Registration Act is still constitutional.

Wouldn't you take that position?

Mr. Feigin: Your Honor, I don't--

Justice Samuel Alito: Would you say that if -- if it can be proven that they have -- that women are now, that the percentage is now high enough, the statute may be unconstitutional?

Anyway, assuming that you might take that position, then -- and you might win on that -- then what would be the point of having all of this discovery that you're talking about?

Mr. Feigin: --Well--

Justice Samuel Alito: All of this -- all of this development of the factual record?

What -- what sense does it make to develop a big factual record before you know whether it's even -- whether it even makes any difference?

Mr. Feigin: --Well, Your Honor, the way to deal with that would be to just have a very quick stop in the MSPB which assures itself yes, this is a constitutional challenge to a statute.

As the Court recognized in Weinberger v. Salfi, for example, it is useful to have -- at least exhaust the claim of the agency for that purpose.

Yes--

Justice Sonia Sotomayor: Is there any rule of the board that stops a litigant from making a proffer -- an offer of proof?

Mr. Feigin: --There is not, Your Honor, and in fact--

Justice Sonia Sotomayor: Wouldn't that be the proper way of doing it, if you're going to go up on a constitutional claim?

Make your offer of proof and then the Federal Circuit can decide if it needs more evidence or not.

Mr. Feigin: --That's where I was going with this, Your Honor.

In fact, the MSPB has a special rule, I believe it's 5 C.F.R. 1201.61; it's cited in our brief, where even if the MSPB decided not to accept evidence for some reason, the description of the evidence would go in the record and therefore be available for the Federal Circuit.

Chief Justice John G. Roberts: What if -- I guess the party doesn't -- doesn't even have to raise its constitutional claim before the MSPB, does it?

Mr. Feigin: Well, the Federal--

Chief Justice John G. Roberts: It's pretty odd to say that you've somehow waived a claim you couldn't pursue.

Mr. Feigin: --Well, the Federal Circuit has in analogous cases decided constitutional claims that weren't raised in front of an agency when the agency couldn't decide them.

In the government's view it would make sense to exhaust, for the reasons I was explaining earlier and to Justice Ginsburg, which is that it may be that the MSPB finds that the statute doesn't really cover the situation.

Now I acknowledge that's not going to happen in this case; it is clear that Section 3328 required these people's removal.

Justice Antonin Scalia: --Wait.

You're -- you're actually proposing that you have to exhaust questions that the agency has no authority to decide?

Mr. Feigin: Yes, Your Honor, I think the Court has recognized--

Justice Antonin Scalia: Curiouser and curiouser.

If you don't bring before the agency a question that the agency says it has no authority to decide, you have forfeited your ability?

Mr. Feigin: --Well, Your Honor, I don't think what should happen in a case like this is that the employee appeals to the MSPB and says nothing at all.

The employee should appeal to the MSPB and at least say what his constitutional claim is, and the benefit of that as the Court has recognized in, for example, Weinberger v. Salfi, is that the agency can assure itself, yes, it's a constitutional claim; it's beyond my authority to resolve and there is no other way for me to resolve it.

Another benefit of presenting these claims to the agency is the MSPB hasn't been crystal clear about exactly where its authority begins and ends; and neither the Federal Circuit nor this Court has addressed that question at all.

And allowing the agency in the first instance to determine whether it has the authority to grant the plaintiff the relief he is seeking has a great benefit of clarifying what the scope of the MSPB's authority is.

It makes a lot more sense for the MSPB and the Federal Circuit to be deciding what the scope of the MSPB's authority is than it is to file a claim in the District of Massachusetts and have that district court and then the First Circuit debating about what the proper scope of the MSPB's authority is.

I think the CSRA expresses a clear preference that appeals of adverse actions like this go through the MSPB and to the Federal Circuit, so that they can decide those kinds of questions.

Again--

Justice Ruth Bader Ginsburg: Where did -- where did Salfi go?

The agency couldn't decide the constitutional question, so what's the next stop?

Was it a court of appeals or district court?

Mr. Feigin: --In Salfi, Your Honor?

Justice Ruth Bader Ginsburg: Um-hum.

Mr. Feigin: That would have been in district court.

However under 42 U.S.C. 405(g), which was at issue in Salfi and Illinois Council, the district court is performing essentially appellate style review of the agency's findings.

That is, the preferred course is that any additional fact-findings that would be necessary would be made on remand and not taken by the district court.

Justice Ruth Bader Ginsburg: Not on the constitutional question.

Mr. Feigin: I think it would still be the preferred course that the agency would do any further fact-finding that would be necessary in the first instance.

Justice Ruth Bader Ginsburg: Why?

The district court is -- that's what it's equipped to do.

That's what it does all the time.

And--

Mr. Feigin: Well, under 405(g), rather than 1331, the preferred form of fact-finding is in the agency, and remands to the agency for further fact-finding whether than development of the facts in the district court in the first instance.

In any event, the Court has recognized that in Thunder Basin, for example, where review in the first instance was in the court of appeals, that the court of appeals had adequate authority to give meaningful judicial review to a constitutional claim that an agency, in that case the mine commission, by hypothesis could not decide.

Thank you.

Chief Justice John G. Roberts: Thank you,--

Mr. Feigin.

Mr. Schwartz, you have 2 minutes remaining.

REBUTTAL ARGUMENT OF HARVEY A. SCHWARTZ ON BEHALF OF THE PETITIONERS

Mr. Schwartz: Thank you.

We are not here for an exercise in which side can best rewrite the Civil Service Reform Act so that the Petitioners' claims can fit in it.

What we are here for is to determine whether the background rule that Federal courts have Federal question jurisdiction, under the common law and under Section 1331, to rule on claims challenging the constitutionality of an act of Congress.

Now, the fall-back position is that that jurisdiction remains.

What this Court is -- is tasked to do is to see whether it's fairly discernible from the Civil Service Reform Act as it was written by Congress, not has it's twisted or amended or bent to fit these claims in it.

Whether the Civil Service Reform Act as written by Congress revokes that background Federal court jurisdiction.

And I suggest that the gyrations that have been discussed about well, we could do this, we could go up, we could go down, we could do these odd procedures, show that it is not fairly discernible that Congress intended to somehow try to shoehorn these claims within the CSRA framework.

And for that reason, not because the government system is better, not because the system that I'm proposing works better or is faster, but because there is no fairly discernible evidence from the Civil Service Reform Act as written by Congress, that Congress intended to revoke this very fundamental jurisdiction of the district courts.

This is a Marbury case, not a Bivens case.

This is fundamental jurisdiction, the power of the Federal courts to say that Congress, not some Federal agency, but that Congress acted in violation of the Constitution.

And I suggest that it -- the Court should act carefully before deciding that Congress took that fundamental jurisdiction away from the district courts, and that is not fairly discernible that Congress did that through awarding of the Civil Service Reform Act.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Schwartz: Thank you.

Chief Justice John G. Roberts: The case is submitted.