ELGIN v. DEPARTMENT OF THE TREASURY

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 11–45

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MICHAEL B. ELGIN, et al., PETITIONERS v. DEPARTMENT OF THE TREASURY et al.

on writ of certiorari to the united states court of appeals for the first circuit

[June 11, 2012]

Justice Thomas delivered the opinion of the Court.

Under the Civil Service Reform Act of 1978 (CSRA), 5 U. S. C. §1101 et seq., certain federal employees may obtain administrative and judicial review of specified adverse employment actions. The question before us is whether the CSRA provides the exclusive avenue to judicial review when a qualifying employee challenges an adverse employment action by arguing that a federal statute is unconstitutional. We hold that it does.

I

The CSRA “established a comprehensive system for reviewing personnel action taken against federal employees.” United States v. Fausto, 484 U. S. 439, 455 (1988) . As relevant here, Subchapter II of Chapter 75 governs review of major adverse actions taken against employees “for such cause as will promote the efficiency of the service.” 5 U. S. C. §§7503(a), 7513(a). Employees entitled to review are those in the “competitive service” and “excepted service” who meet certain requirements regarding probationary periods and years of service. 1 §7511(a)(1). The reviewable agency actions are removal, suspension for more than 14 days, reduction in grade or pay, or furlough for 30 days or less. §7512.

When an employing agency proposes a covered action against a covered employee, the CSRA gives the employee the right to notice, representation by counsel, an opportunity to respond, and a written, reasoned decision from the agency. §7513(b). If the agency takes final adverse action against the employee, the CSRA gives the employee the right to a hearing and to be represented by an attorney or other representative before the Merit Systems Protection Board (MSPB). §§7513(d), 7701(a)(1)–(2). The MSPB is authorized to order relief to prevailing employees, including reinstatement, backpay, and attorney’s fees. §§1204(a)(2), 7701(g).

An employee who is dissatisfied with the MSPB’s decision is entitled to judicial review in the United States Court of Appeals for the Federal Circuit. That court “shall review the record and hold unlawful and set aside any agency action, findings, or conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” “obtained without procedures required by law, rule, or regulation having been followed,” or “unsupported by substantial evidence.” §§7703(a)(1), (c). The Federal Circuit has “exclusive jurisdiction” over appeals from a final decision of the MSPB. 28 U. S. C. §1295(a)(9); see also 5 U. S. C. §7703(b)(1) (judicial review of an MSPB decision “shall be” in the Federal Circuit).

II

Petitioners are former federal competitive service employees who failed to comply with the Military Selective Service Act, 50 U. S. C. App. §453. That Act requires male citizens and permanent-resident aliens of the United States between the ages of 18 and 26 to register for the Selective Service. Another federal statute, 5 U. S. C. §3328 (hereinafter Section 3328), bars from employment by an Executive agency anyone who has knowingly and willfully failed to register. Pursuant to Section 3328, petitioners were discharged (or allegedly constructively discharged) by respondents, their employing agencies.

Among petitioners, only Michael Elgin appealed his removal to the MSPB. Elgin argued that Section 3328 is an unconstitutional bill of attainder and unconstitution-ally discriminates on the basis of sex when combined with the registration requirement of the Military Selective Service Act. The MSPB referred Elgin’s appeal to an administrative law judge (ALJ) for an initial decision. 2 The ALJ dismissed the appeal for lack of jurisdiction, concluding that an employee is not entitled to MSPB review of agency action that is based on an absolute statutory bar to employment. App. to Pet. for Cert. 100a–101a. The ALJ also held that Elgin’s constitutional claims could not “confer jurisdiction” on the MSPB because it “lacks authority to determine the constitutionality of a statute.” Id., at 101a.

Elgin neither petitioned for review by the full MSPB nor appealed to the Federal Circuit. Instead, he joined the other petitioners in filing suit in the United States District Court for the District of Massachusetts, raising the same constitutional challenges to Section 3328 and the Military Selective Service Act. App. 4, 26–28, 29. Petitioners sought equitable relief in the form of a declaratory judgment that the challenged statutes are unconstitutional, an injunction prohibiting enforcement of Section 3328, reinstatement to their former positions, backpay, benefits, and attorney’s fees. Id., at 29–30.

The District Court rejected respondents’ argument that it lacked jurisdiction and denied petitioners’ constitutional claims on the merits. See Elgin v. United States, 697 F. Supp. 2d 187 (Mass. 2010). The District Court held that the CSRA did not preclude it from hearing petitioners’ claims, because the MSPB had no authority to determine the constitutionality of a federal statute. Id., at 193. Hence, the District Court concluded that it retained jurisdiction under the general grant of federal-question jurisdiction in 28 U. S. C. §1331. 697 F. Supp. 2d, at 194.

The United States Court of Appeals for the First Circuit vacated the judgment and remanded with instructions to dismiss for lack of jurisdiction. See 641 F. 3d 6 (2011). The Court of Appeals held that challenges to a removal are not exempted from the CSRA review scheme simply because the employee argues that the statute authorizing the removal is unconstitutional. Id., at 11–12. According to the Court of Appeals, the CSRA provides a forum—the Federal Circuit—that may adjudicate the constitutionality of a federal statute, and petitioners “were obliged to use it.” Id., at 12–13.

We granted certiorari to decide whether the CSRA precludes district court jurisdiction over petitioners’ claims even though they are constitutional claims for equitable relief. See 565 U. S. ___ (2011). We conclude that it does, and we therefore affirm.

III

We begin with the appropriate standard for determining whether a statutory scheme of administrative and judicial review provides the exclusive means of review for constitutional claims. Petitioners argue that even if they may obtain judicial review of their constitutional claims before the Federal Circuit, they are not precluded from pursuing their claims in federal district court. According to petitioners, the general grant of federal-question jurisdiction in 28 U. S. C. §1331, which gives district courts authority over constitutional claims, remains undisturbed unless Congress explicitly directs otherwise. In support of this argument, petitioners rely on Webster v. Doe, 486 U. S. 592, 603 (1988) , which held that “where Congress intends to preclude judicial review of constitutional claims[,] its intent to do so must be clear.” The Webster Court noted that this “heightened showing” was required “to avoid the ‘serious constitutional question’ that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.” Ibid. (quoting Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667 , n. 12 (1986)). Petitioners contend that the CSRA does not meet this standard because it does not expressly bar suits in district court.

Petitioners’ argument overlooks a necessary predicate to the application of Webster’s heightened standard: a statute that purports to “deny any judicial forum for a colorable constitutional claim.” 486 U. S., at 603. Webster’s standard does not apply where Congress simply channels judicial review of a constitutional claim to a particular court. We held as much in Thunder Basin Coal Co. v. Reich, 510 U. S. 200 (1994) . In that case, we considered whether a statutory scheme of administrative review followed by judicial review in a federal appellate court precluded district court jurisdiction over a plaintiff’s statutory and constitutional claims. Id., at 206. We noted that the plaintiff’s claims could be “meaningfully addressed in the Court of Appeals” and that the case therefore did “not present the ‘serious constitutional question’ that would arise if an agency statute were construed to preclude all judicial review of a constitutional claim.” Id., at 215, and n. 20 (quoting Bowen, supra, at 681, n. 12). Accordingly, we did not require Webster’s “heightened showing,” but instead asked only whether Congress’ intent to preclude district court jurisdiction was “ ‘fairly discernible in the statutory scheme.’ ” 510 U. S., at 207 (quoting Block v. Community Nutrition Institute, 467 U. S. 340, 351 (1984) ).

Like the statute in Thunder Basin, the CSRA does not foreclose all judicial review of petitioners’ constitutional claims, but merely directs that judicial review shall occur in the Federal Circuit. Moreover, as we explain below, the Federal Circuit is fully capable of providing meaningful review of petitioners’ claims. See infra, at 12–17. Accordingly, the appropriate inquiry is whether it is “fairly discernible” from the CSRA that Congress intended covered employees appealing covered agency actions to proceed exclusively through the statutory review scheme, even in cases in which the employees raise constitutional challenges to federal statutes.

IV

To determine whether it is “fairly discernible” that Congress precluded district court jurisdiction over petitioners’ claims, we examine the CSRA’s text, structure, and purpose. See Thunder Basin, supra, at 207; Fausto, 484 U. S., at 443.

A

This is not the first time we have addressed the impact of the CSRA’s text and structure on the availability of judicial review of a federal employee’s challenge to an employment decision. In Fausto, we considered whether a so-called “nonpreference excepted service employe[e]” could challenge his suspension in the United States Claims Court, even though the CSRA did not then afford him a right to review in the MSPB or the Federal Circuit. 3 Id., at 440–441, 448. Citing “[t]he comprehensive nature of the CSRA, the attention that it gives throughout to the rights of nonpreference excepted service employees, and the fact that it does not include them in provisions for administrative and judicial review contained in Chapter 75,” the Court concluded that “the absence of provision for these employees to obtain judicial review” was a “considered congressional judgment.” Id., at 448. The Court thus found it “fairly discernible” that Congress intended to preclude all judicial review of Fausto’s statutory claims. 4 Id., at 452 (citing Block, supra, at 349).

Just as the CSRA’s “elaborate” framework, 484 U. S., at 443, demonstrates Congress’ intent to entirely foreclose judicial review to employees to whom the CSRA denies statutory review, it similarly indicates that extrastatutory review is not available to those employees to whom the CSRA grants administrative and judicial review. Indeed, in Fausto we expressly assumed that “competitive service employees, who are given review rights by Chapter 75, cannot expand these rights by resort to” judicial review outside of the CSRA scheme. See id., at 450, n. 3. As Fausto explained, the CSRA “prescribes in great detail the protections and remedies applicable to” adverse personnel actions against federal employees. Id., at 443. For example, Subchapter II of Chapter 75, the portion of the CSRA relevant to petitioners, specifically enumerates the major adverse actions and employee classifications to which the CSRA’s procedural protections and review provisions apply. 5 U. S. C. §§7511, 7512. The subchapter then sets out the procedures due an employee prior to final agency action. §7513. And, Chapter 77 of the CSRA exhaustively details the system of review before the MSPB and the Federal Circuit. §§7701, 7703; see also Fausto, supra, at 449 (emphasizing that the CSRA’s structure evinces “the primacy” of review by the MSPB and the Federal Circuit). Given the painstaking detail with which the CSRA sets out the method for covered employees to obtain review of adverse employment actions, it is fairly discernible that Congress intended to deny such employees an additional avenue of review in district court.

Petitioners do not dispute that they are employees who suffered adverse actions covered by the foregoing provisions of the CSRA. Nor do they contest that the CSRA’s text and structure support implied preclusion of district court jurisdiction, at least as a general matter. Petitioners even acknowledge that the MSPB routinely adjudicates some constitutional claims, such as claims that an agency took adverse employment action in violation of an employee’s First or Fourth Amendment rights, and that these claims must be brought within the CSRA scheme. See Brief for Petitioners 33; Tr. of Oral Arg. 7–11, 15, 21; see also, e.g., Smith v. Department of Transp., 106 MSPR 59, 78–79 (2007) (applying Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968) , to an employee’s claim that he was suspended in retaliation for the exercise of his First Amendment rights); Garrison v. Department of Justice, 67 MSPR 154 (1995) (considering whether an order directing an employee to submit to a drug test was reasonable under the Fourth Amendment). Nevertheless, petitioners seek to carve out an exception to CSRA exclusivity for facial or as-applied constitutional challenges to federal statutes.

The text and structure of the CSRA, however, provide no support for such an exception. The availability of administrative and judicial review under the CSRA generally turns on the type of civil service employee and adverse employment action at issue. See, e.g., 5 U. S. C. §§7511(a)(1) (defining “employee”), 7512 (defining “[a]ctions covered”), 7513(d) (providing that “[a]n employee against whom an action is taken under this section is entitled to appeal to the Merit Systems Protection Board”), 7703(a)(1) (providing that “[a]ny employee . . . adversely affected or aggrieved by a final order or decision of the Merit Systems Protection Board may obtain judicial review of the order or decision” in the Federal Circuit). Nothing in the CSRA’s text suggests that its exclusive review scheme is inapplicable simply because a covered employee challenges a covered action on the ground that the statute authorizing that action is unconstitutional. As the Government correctly notes, “[t]he plain language of [the CSRA’s] provisions applies to an employee who challenges his removal on the ground that the statute requiring it is unconstitutional no less than it applies to an employee who challenges his removal on any other ground.” Brief for Respondents 33–34.

In only one situation does the CSRA expressly exempt a covered employee’s appeal of a covered action from Federal Circuit review based on the type of claim at issue. When a covered employee “alleges that a basis for the action was discrimination” prohibited by enumerated federal employment laws, 5 U. S. C. §7702(a)(1)(B), the CSRA allows the employee to obtain judicial review of an unfavorable MSPB decision by filing a civil action as provided by the applicable employment law. See §7703(b)(2). Each of the cross-referenced employment laws authorizes an action in federal district court. See 42 U. S. C. §2000e–5(f); 29 U. S. C. §633a(c); §216(b). Title 5 U. S. C. §7703(b)(2) demonstrates that Congress knew how to provide alternative forums for judicial review based on the nature of an employee’s claim. That Congress declined to include an exemption from Federal Circuit review for challenges to a statute’s constitutionality indicates that Congress intended no such exception.

B

The purpose of the CSRA also supports our conclusion that the statutory review scheme is exclusive, even for employees who bring constitutional challenges to federal statutes. As we have previously explained, the CSRA’s “integrated scheme of administrative and judicial review” for aggrieved federal employees was designed to replace an “ ‘outdated patchwork of statutes and rules’ ” that afforded employees the right to challenge employing agency actions in district courts across the country. Fausto, 484 U. S., at 444–445. Such widespread judicial review, which included appeals in all of the Federal Courts of Appeals produced “wide variations in the kinds of decisions . . . issued on the same or similar matters” and a double layer of judicial review that was “wasteful and irrational.” Id., at 445 (internal quotation marks omitted).

The CSRA’s objective of creating an integrated scheme of review would be seriously undermined if, as petitioners would have it, a covered employee could challenge a covered employment action first in a district court, and then again in one of the courts of appeals, simply by alleging that the statutory authorization for such action is unconstitutional. Such suits would reintroduce the very potential for inconsistent decisionmaking and duplicative judicial review that the CSRA was designed to avoid. Moreover, petitioners’ position would create the possibility of parallel litigation regarding the same agency action before the MSPB and a district court. An employee could challenge the constitutionality of the statute authorizing an agency’s action in district court, but the MSPB would remain the exclusive forum for other types of challenges to the agency’s decision. See Tr. of Oral Arg. 4–7, 9, 15–16.

Petitioners counter that doctrines regarding claim splitting and preclusion would bar parallel suits before the MSPB and the district court. But such doctrines would not invariably eliminate the possibility of simultaneous proceedings, for a tribunal generally has discretion to decide whether to dismiss a suit when a similar suit is pending elsewhere. See 18 C. Wright et al., Federal Practice and Procedure §4406 (2d ed. 2002 and Supp. 2011). In any event, petitioners point to nothing in the CSRA to support the odd notion that Congress intended to allow employees to pursue constitutional claims in district court at the cost of forgoing other, potentially meritorious claims before the MSPB.

Finally, we note that a jurisdictional rule based on the nature of an employee’s constitutional claim would deprive the aggrieved employee, the MSPB, and the district court of clear guidance about the proper forum for the employee’s claims at the outset of the case. For example, petitioners contend that facial and as-applied constitutional challenges to statutes may be brought in district court, while other constitutional challenges must be heard by the MSPB. See supra, at 8–9; infra, at 13, n. 5. But, as we explain below, that line is hazy at best and incoherent at worst. See ibid. The dissent’s approach fares no better. The dissent carves out for district court adjudication only facial constitutional challenges to statutes, but we have previously stated that “the distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge.” Citizens United v. Federal Election Comm’n, 558 U. S. ___, ___ (2010) (slip op., at 14). By contrast, a jurisdictional rule based on the type of employee and adverse agency action at issue does not involve such amorphous distinctions. Accordingly, we conclude that the better interpretation of the CSRA is that its exclusivity does not turn on the constitutional nature of an employee’s claim, but rather on the type of the employee and the challenged employment action.

V

Petitioners raise three additional factors in arguing that their claims are not the type that Congress intended to be reviewed within the CSRA scheme. Specifically, petitioners invoke our “presum[ption] that Congress does not intend to limit [district court] jurisdiction if ‘a finding of preclusion could foreclose all meaningful judicial review’; if the suit is ‘wholly collateral to a statute’s review provisions’; and if the claims are ‘outside the agency’s expertise.’ ” Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. ___, ___ (2010) (slip op., at 8) (quoting Thunder Basin, 510 U. S., at 212–213). Contrary to petitioners’ suggestion, none of those characteristics are present here.

A

First, petitioners argue that the CSRA review scheme provides no meaningful review of their claims because the MSPB lacks authority to declare a federal statute unconstitutional. Petitioners are correct that the MSPB has repeatedly refused to pass upon the constitutionality of legislation. See, e.g., Malone v. Department of Justice, 13 M. S. P. B. 81, 83 (1983) (“[I]t is well settled that administrative agencies are without authority to determine the constitutionality of statutes”). This Court has also stated that “adjudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies.” Thunder Basin, 510 U. S., at 215 (internal quotation marks and brackets omitted). 5

We need not, and do not, decide whether the MSPB’s view of its power is correct, or whether the oft-stated principle that agencies cannot declare a statute unconstitutional is truly a matter of jurisdiction. See ibid. (describing this rule as “not mandatory”). In Thunder Basin, we held that Congress’ intent to preclude district court jurisdiction was fairly discernible in the statutory scheme “[e]ven if” the administrative body could not decide the constitutionality of a federal law. Ibid. That issue, we reasoned, could be “meaningfully addressed in the Court of Appeals” that Congress had authorized to conduct judicial review. Ibid. 6 Likewise, the CSRA provides review in the Federal Circuit, an Article III court fully competent to adjudicate petitioners’ claims that Section 3328 and the Military Selective Service Act’s registration requirement are unconstitutional.

Petitioners insist, however, that the Federal Circuit cannot decide their constitutional claims either. Emphasizing the Federal Circuit’s holdings that its jurisdiction over employee appeals is coextensive with the MSPB’s jurisdiction, petitioners argue that the Federal Circuit likewise lacks jurisdiction to decide their challenge to the constitutionality of a federal statute. Petitioners are incorrect.

As we have explained, the CSRA makes MSPB jurisdiction over an appeal dependent only on the nature of the employee and the employment action at issue. See supra, at 1–2, 8–9; see also 5 CFR §1201.3(a) (stating that “[t]he Board has jurisdiction over appeals from agency actions” and enumerating covered actions); Todd v. Merit Systems Protection Bd., 55 F. 3d 1574, 1576 (CA Fed. 1995) (explaining that the employee “has the burden of establishing that she and the action she seeks to appeal [are] within the [MSPB’s] jurisdiction”). Accordingly, as the cases cited by petitioners demonstrate, the Federal Circuit has questioned its jurisdiction when an employee appeals from a type of adverse action over which the MSPB lacked jurisdiction. 7 But the Federal Circuit has never held, in an appeal from agency action within the MSPB’s jurisdiction, that its authority to decide particular legal questions is derivative of the MSPB’s authority. To the contrary, in Briggs v. MSPB, 331 F. 3d 1307, 1312–1313 (2003), the Federal Circuit concluded that it could determine the constitutionality of a statute upon which an employee’s removal was based, notwithstanding the MSPB’s professed lack of authority to decide the question. 8

Petitioners next contend that even if the Federal Circuit could consider their claims in the first instance, resolution of the claims requires a factual record that neither the MSPB (because it lacks authority to decide the legal question) nor the Federal Circuit (because it is an appellate court) can create. To the contrary, we think the CSRA review scheme fully accommodates an employee’s potential need to establish facts relevant to his constitutional challenge to a federal statute. Even without factfinding capabilities, the Federal Circuit may take judicial notice of facts relevant to the constitutional question. See, e.g., Rothe Development Corp. v. Department of Defense, 545 F. 3d 1023, 1045–1046 (CA Fed. 2008) (judicially noticing facts relevant to equal protection challenge). And, if resolution of a constitutional claim requires the development of facts beyond those that the Federal Circuit may judicially notice, the CSRA empowers the MSPB to take evidence and find facts for Federal Circuit review. See 5 U. S. C. §§1204(b)(1)–(2) (providing that the MSPB may administer oaths, examine witnesses, take depositions, issue interrogatories, subpoena testimony and documents, and otherwise receive evidence when a covered employee appeals a covered adverse employment action). Unlike petitioners, we see nothing extraordinary in a statutory scheme that vests reviewable factfinding authority in a non-Article III entity that has jurisdiction over an action but cannot finally decide the legal question to which the facts pertain. Congress has authorized magistrate judges, for example, to conduct evidentiary hearings and make findings of fact relevant to dispositive pretrial motions, although they are powerless to issue a final ruling on such motions. See 28 U. S. C. §§636(b)(1)(A)–(B); United States v. Raddatz, 447 U. S. 667, 673 (1980) . 9

Petitioners nonetheless insist that the MSPB will never reach the factfinding stage in an appeal challenging the constitutionality of a federal statute, pointing to the ALJ’s dismissal for lack of jurisdiction in petitioner Elgin’s case. Again, petitioners are incorrect. When a covered employee appeals a covered adverse action, the CSRA grants the MSPB jurisdiction over the appeal. See supra, at 14. If the employee attacks the adverse action on the ground that a statute is unconstitutional, the MSPB may determine that it lacks authority to decide that particular issue; but absent another infirmity in the adverse action, the MSPB will affirm the employing agency’s decision rather than dismiss the appeal. See, e.g., Briggs, supra, at 1311. The Federal Circuit can then review the MSPB decision, including any factual record developed by the MSPB in the course of its decision on the merits.

Contrary to petitioners’ suggestion, Elgin’s case does not illustrate that the MSPB will invariably dismiss an appeal challenging the constitutionality of a federal statute before reaching the factfinding stage. The ALJ dismissed Elgin’s case on the threshold jurisdictional ground that he was not an “employee” with a right to appeal to the MSPB because his employment was absolutely barred by statute. See App. to Pet. for Cert. 100a–101a. The Government conceded before the First Circuit that this jurisdictional argument was incorrect, see Brief for United States 10, and the Court of Appeals agreed, see 641 F. 3d, at 10–11. The parties do not raise that issue here, and we do not address it. What matters for present purposes is that the particular circumstances of Elgin’s case do not demonstrate that the MSPB will dismiss an appeal that is otherwise within its jurisdiction merely because it lacks the authority to decide a particular claim. 10

In sum, the CSRA grants the MSPB and the Federal Circuit jurisdiction over petitioners’ appeal because they are covered employees challenging a covered adverse employment action. Within the CSRA review scheme, the Federal Circuit has authority to consider and decide petitioners’ constitutional claims. To the extent such challenges require factual development, the CSRA equips the MSPB with tools to create the necessary record. Thus, petitioners’ constitutional claims can receive meaningful review within the CSRA scheme. 11

B

Petitioners next contend that the CSRA does not preclude district court jurisdiction over their claims because they are “wholly collateral” to the CSRA scheme. According to petitioners, their bill-of-attainder and sex discrimination claims “have nothing to do with the types of day-to-day personnel actions adjudicated by the MSPB,” Brief for Petitioners 29, and petitioners “are not seeking the CSRA’s ‘protections and remedies.’ ” Reply Brief for Petitioners 3. We disagree.

As evidenced by their district court complaint, petitioners’ constitutional claims are the vehicle by which they seek to reverse the removal decisions, to return to federal employment, and to receive the compensation they would have earned but for the adverse employment action. See App. 29–30. A challenge to removal is precisely the type of personnel action regularly adjudicated by the MSPB and the Federal Circuit within the CSRA scheme. Likewise, reinstatement, backpay, and attorney’s fees are precisely the kinds of relief that the CSRA empowers the MSPB and the Federal Circuit to provide. See supra, at 2; see also Heckler v. Ringer, 466 U. S. 602, 614 (1984) (holding that plaintiffs’ claims were not wholly collateral to a statutory scheme of administrative and judicial review of Medicare payment decisions, where plaintiffs’ constitutional and statutory challenge to an agency’s procedure for reaching payment decisions was “at bottom” an attempt to reverse the agency’s decision to deny payment). Far from a suit wholly collateral to the CSRA scheme, the case before us is a challenge to CSRA-covered employment action brought by CSRA-covered employees requesting relief that the CSRA routinely affords.

C

Relatedly, petitioners argue that their constitutional claims are not the sort that Congress intended to channel through the MSPB because they are outside the MSPB’s expertise. But petitioners overlook the many threshold questions that may accompany a constitutional claim and to which the MSPB can apply its expertise. Of particular relevance here, preliminary questions unique to the employment context may obviate the need to address the constitutional challenge. For example, petitioner Henry Tucker asserts that his resignation amounted to a constructive discharge. That issue falls squarely within the MSPB’s expertise, and its resolution against Tucker would avoid the need to reach his constitutional claims. In addition, the challenged statute may be one that the MSPB regularly construes, and its statutory interpretation could alleviate constitutional concerns. Or, an employee’s appeal may involve other statutory or constitutional claims that the MSPB routinely considers, in addition to a constitutional challenge to a federal statute. The MSPB’s resolution of those claims in the employee’s favor might fully dispose of the case. Thus, because the MSPB’s expertise can otherwise be “brought to bear” on employee appeals that challenge the constitutionality of a statute, we see no reason to conclude that Congress intended to exempt such claims from exclusive review before the MSPB and the Federal Circuit. See Thunder Basin, 510 U. S., at 214–215 (concluding that, where administrative Commission’s expertise “could be brought to bear” on appeal, Commission’s exclusive review of alleged statutory violation was appropriate despite its lack of expertise in interpreting a particular statute (internal quotation marks and brackets omitted)).

*  *  *

For the foregoing reasons, we conclude that it is fairly discernible that the CSRA review scheme was intended to preclude district court jurisdiction over petitioners’ claims. The judgment of the Court of Appeals is affirmed.

It is so ordered.

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1  The CSRA divides civil service employees into three main categories. Fausto, 484 U. S., at 441, n. 1. “Senior Executive Service” employees occupy high-level positions in the Executive Branch but are not required to be appointed by the President and confirmed by the Senate. 5 U. S. C. §3131(2). “[C]ompetitive service” employees—the relevant category for purposes of this case—are all other Executive Branch employees whose nomination by the President and confirmation by the Senate are not required and who are not specifically excepted from the competitive service by statute. §2102(a)(1). The competitive service also includes employees in other branches of the Federal Govern-ment and in the District of Columbia government who are specifically included by statute. §§2102(a)(2)–(3). Finally, “excepted service” employees are employees who are not in the Senior Executive Service or in the competitive service. §2103.

2  See §7701(b)(1) (authorizing referral of MSPB appeals to an ALJ); 5 CFR §§1201.111–1201.114 (2011) (detailing procedures for an initial decision by an ALJ and review by the MSPB).

3  Certain veterans and their close relatives are considered “preference eligible” civil service employees. Fausto, 484 U. S., at 441, n. 1.

4  Although Fausto interpreted the CSRA to entirely foreclose judicial review, the Court had no need to apply a heightened standard like that applied in Webster v. Doe, 486 U. S. 592 (1988) , because Fausto did not press any constitutional claims.

5  According to petitioners, the MSPB can decide claims that anagency violated an employee’s First or Fourth Amendment rights (and those claims consequently must be brought within the CSRA scheme), supra, at 8–9, because such claims allege only that an agency “acted in an unconstitutional manner” and do not challenge the constitutionality of a federal statute either facially or as applied. See Tr. of Oral Arg. 10, 21. That distinction is dubious at best. Agencies are created by and act pursuant to statutes. Thus, unless an action is beyond the scope ofthe agency’s statutory authority, an employee’s claim that the agency “acted in an unconstitutional manner” will generally be a claim that the statute authorizing the agency action was unconstitutionally applied to him. See, e.g., Pickering v. Board of Ed. of Township High SchoolDist. 205, Will Cty., 391 U. S. 563, 565 (1968) (holding that the statute authorizing a government employee’s termination was unconstitutional as applied under the First and Fourteenth Amendments where the employee was fired because of his speech). In any event, the curious line that petitioners draw only highlights the weakness of their position, for it certainly is not “fairly discernible” from the CSRA’s text, structure, or purpose that the statutory review scheme is exclusive for so-called “unconstitutional manner” claims but not for facial or as-applied constitutional challenges to statutes. See supra, at 7–11.

6  The dissent misreads Thunder Basin. The dissent contends that the “heart of the preclusion analysis” in Thunder Basin involved statutory claims reviewable by the administrative body and that the “only constitutional issue” was decided by this Court “ ‘not on preclusion grounds but on the merits.’ ” Post, at 10 (opinion of Alito, J.) (quoting 510 U. S., at 219 (Scalia, J., concurring in part and concurring in judgment)). To be sure, the Thunder Basin Court did decide the merits of the petitioner’s “second constitutional challenge,” namely whether the Court’s finding of preclusion was itself unconstitutional. See i.d., at 219–221, and n. (same); see also id., at 216 (describing this “alternative” argument). But the petitioner’s suit also included another constitutional claim: a due process challenge to a statute that permitted a regulatory agency, before a hearing, to immediately fine the petitioner for noncompliance with the statute. See Brief for Petitioner in Thunder Basin Coal Co. v. Reich, O. T. 1993, No. 92–896, p. 13. The Court expressly found that the statutory review scheme precluded district court jurisdiction over that constitutional claim. See 510 U. S., at 214‒216.

7  See Schmittling v. Department of Army, 219 F. 3d 1332, 1336 (CA Fed. 2000) (remanding for MSPB to determine if employee suffered a prohibited personnel action within the scope of its jurisdiction); Perez v. MSPB, 931 F. 2d 853, 855 (CA Fed. 1991) (action against employee was not suspension within MSPB’s jurisdiction); Manning v. MSPB, 742 F. 2d 1424, 1425–1427 (CA Fed. 1984) (reassignment of employee was not an adverse action within MSPB’s jurisdiction); Rosano v. Department of Navy, 699 F. 2d 1315 (CA Fed. 1983) (refusal to prorate employee’s health insurance premiums was not an adverse action within MSPB’s jurisdiction).

8  It is not unusual for an appellate court reviewing the decision ofan administrative agency to consider a constitutional challenge to a federal statute that the agency concluded it lacked authority to decide. See, e.g., Preseault v. ICC, 853 F. 2d 145, 148–149 (CA2 1988) (provision of the National Trails System Act Amendments of 1983), aff’d on other grounds, 494 U. S. 1 (1990) ; Reid v. Engen, 765 F. 2d 1457, 1460–1461 (CA9 1985) (provision of the Federal Aviation Act of 1958); Chadha v. INS, 634 F. 2d 408, 411, 413 (CA9 1980) (provision of the Immigration and Nationality Act), aff’d, 462 U. S. 919 (1983) .

9  The dissent argues that the MSPB may struggle to determine what facts are relevant to the constitutional question, given that it will not decide the claim. See post, at 11. But the MSPB’s professed lack of authority to declare a statute unconstitutional does not mean that the MSPB cannot identify the legal principles that govern the constitu-tional analysis and thus the scope of necessary development of the fac-tual record. The MSPB routinely identifies the relevant constitutional framework from federal court decisions when deciding other constitutional claims. See supra, at 8–9 (citing First and Fourth Amendment cases); see also, e.g., Fitzgerald v. Department of Defense, 80 MSPR 1, 14–15 (1998) (analyzing a claim under the Due Process Clauses of the Fifth and Fourteenth Amendments). We therefore see little reason to credit the dissent’s prediction that our holding will result in a complicated back and forth between a befuddled MSPB and the Federal Circuit.

10  Before this Court, the Government again conceded the error of its argument that Elgin is not an “employee” within the MSPB’s jurisdiction and indicated that it would support a motion by Elgin to reopen his case before the MSPB. See Tr. of Oral Arg. 32.

11  The dissent cites McNary v. Haitian Refugee Center, Inc., 498 U. S. 479 (1991) , for the “basic principle,” post, at 8, that preclusion cannot be inferred when “ ‘the administrative appeals process does not address the kind of . . . constitutional claims’ at issue.” See post, at 7–8 (quoting McNary, 498 U. S., at 493). But that statement from McNary was not a reference to an administrative body’s inability to decide a constitutional claim. Rather, McNary was addressing a statutory review scheme that provided no opportunity for the plaintiffs to develop a factual record relevant to their constitutional claims before the administrative body and then restricted judicial review to the administrative record created in the first instance. Ibid. As we have explained, the CSRA review process is not similarly limited. See supra, at 15.

SUPREME COURT OF THE UNITED STATES

_________________

No. 11–45

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MICHAEL B. ELGIN, et al., PETITIONERS v. DEPARTMENT OF THE TREASURY et al.

on writ of certiorari to the united states court of appeals for the first circuit

[June 11, 2012]

Justice Alito, with whom Justice Ginsburg and Justice Kagan join, dissenting.

Petitioners are former federal employees who were discharged for failing to register for the military draft as required under 5 U. S. C. §3328. They filed a putative class-action suit in Federal District Court, arguing that the registration requirement is facially unconstitutional because it discriminates on the basis of gender and operates as a bill of attainder. Their complaint sought backpay as well as declaratory and injunctive relief reinstating their employment and preventing the Government from enforcing §3328 against them.

The Court affirms the dismissal of petitioners’ suit on the ground that the Civil Service Reform Act (CSRA) provides an exclusive administrative remedy for claims of wrongful termination brought by covered federal employees. Because the CSRA provides an avenue for employees to pursue their grievances through the Merit Systems Protection Board, the majority concludes, Congress must have intended to remove petitioners’ claims from the ordinary ambit of the federal courts.

The problem with the majority’s reasoning is that petitioners’ constitutional claims are a far cry from the type of claim that Congress intended to channel through the Board. The Board’s mission is to adjudicate fact-specific employment disputes within the existing statutory framework. By contrast, petitioners argue that one key provision of that framework is facially unconstitutional. Not only does the Board lack authority to adjudicate facial constitutional challenges, but such challenges are wholly collateral to the type of claims that the Board is authorized to hear.

The majority attempts to defend its holding by noting that, although the Board cannot consider petitioners’ claims, petitioners may appeal from the Board to the Federal Circuit, which does have authority to address facial constitutional claims. But that does not cure the oddity of requiring such claims to be filed initially before the Board, which can do nothing but pass them along unaddressed, leaving the Federal Circuit to act as a court of first review, but with little capacity for factfinding.

Because I doubt that Congress intended to channel petitioners’ constitutional claims into an administrative tribunal that is powerless to decide them, I respectfully dissent.

I

As a general matter, federal district courts have “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U. S. C. §1331. Under this provision, it has long been “established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution.” Bell v. Hood, 327 U. S. 678, 684 (1946) . In light of §1331, the question is not whether Congress has specifically conferred jurisdiction, but whether it has taken it away. See Whitman v. Department of Transportation, 547 U. S. 512, 514 (2006) (per curiam).

Congress may remove certain claims from the general jurisdiction of the federal courts in order to channel these claims into a system of statutory review. For example, in Shalala v. Illinois Council on Long Term Care, Inc., 529 U. S. 1 (2000) , we considered a clause providing that “no action . . . to recover on any claim” arising under the Medicare laws “shall be brought under section 1331 . . . of title 28,” id., at 5 (quoting 42 U. S. C. §405(h) (brackets omitted)). When dealing with an express preclusion clause like this, we determine the scope of preclusion simply by interpreting the words Congress has chosen.

We have also recognized that preclusion can be implied. When Congress creates an administrative process to handle certain types of claims, it impliedly removes those claims from the ordinary jurisdiction of the federal courts. Under these circumstances, the test is whether “the ‘statutory scheme’ displays a ‘fairly discernible’ intent to limit jurisdiction and the claims at issue ‘are of the type Congress intended to be reviewed within th[e] statutory structure.’ ” Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. ___, ___ (2010) (slip op., at 8) (quoting Thunder Basin Coal Co. v. Reich, 510 U. S. 200, 207, 212 (1994) ; alteration in Free Enterprise). In making this determination, we look to “the statute’s language, structure, and purpose, its legislative history, and whether the claims can be afforded meaningful review” through the alternative administrative process that Congress has established. Thunder Basin, supra, at 207 (citation omitted).

We have emphasized two important factors for determining whether Congress intended an agency to have exclusive original jurisdiction over a claim. The first is whether the claim falls within the agency’s area of expertise, which would give the agency a comparative advantage over the courts in resolving the claim. “Generally, when Congress creates procedures ‘designed to permit agency expertise to be brought to bear on particular problems,’ those procedures ‘are to be exclusive.’ ” Free Enterprise Fund, supra, at ___(slip op., at 8) (quoting Whitney Nat. Bank in Jefferson Parish v. Bank of New Orleans & Trust Co., 379 U. S. 411, 420 (1965) ).

Second, even if a claim would not benefit from agency expertise, we nonetheless consider whether the claim is legally or factually related to the type of dispute the agency is authorized to hear. If so, the claim may be channeled through the administrative process to guard against claim-splitting, which could involve redundant analysis of overlapping issues of law and fact. But for claims that fall outside the agency’s expertise and are “wholly collateral” to the type of dispute the agency is authorized to hear, the interest in requiring unified administrative review is considerably reduced. Thunder Basin, supra, at 212 (internal quotation marks omitted); see also Free Enterprise Fund, supra, at ___ – ___ (slip op., at 8–10).

II

The CSRA was enacted to “provide the people of the United States with a competent, honest, and productive Federal work force reflective of the Nation’s diversity, and to improve the quality of public service.” §3(1), 92Stat. 1112. To that end, the Act created an “integrated scheme of administrative and judicial review [of personnel actions], designed to balance the legitimate interests of the various categories of federal employees with the needs of sound and efficient administration.” United States v. Fausto, 484 U. S. 439, 445 (1988) .

Chapter 75 of Title 5 sets forth detailed procedures for adverse actions taken against certain covered employees “for such cause as will promote the efficiency of the service.” 5 U. S. C. §7513(a). When an agency takes such an action, it must provide the employee with advance written notice of the action and the specific reasons for it, give the employee an opportunity to respond, allow the employee to be represented by an attorney, and provide the employee with a final written decision. See §§7513(b)(1)–(4). Following these internal agency procedures, an aggrieved employee may appeal to the Merit Systems Protection Board. §7513(d).

The Board’s mission is “to ensure that Federal employees are protected against abuses by agency management, that Executive branch agencies make employment decisions in accordance with the merit system principles, and that Federal merit systems are kept free of prohibited personnel practices.” Merit Systems Protection Board, An Introduction to the Merit Systems Protection Board 5 (1999). The Board adjudicates employment disputes in accordance with applicable federal laws and regulations, including the “[m]erit system principles” and “[p]rohibited personnel principles” identified in §§2301, 2302. After the Board renders a decision, the United States Court of Appeals for the Federal Circuit has exclusive jurisdiction on appeal. See §§7703(a)(1), (b)(1); 28 U. S. C. §1295(a)(9).

The parties agree that petitioners are covered employees who may file an appeal to the Board protesting their removal from federal employment. The parties also agree, however, that the Board lacks authority to adjudicate claims like those asserted by petitioners, which attack the validity of a federal statute as a facial matter. As this Court has noted, “[a]djudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies.” Thunder Basin, supra, at 214 (alteration in original; internal quotation marks omitted). The Board itself has consistently taken the position that it lacks “authority to determine the constitutionality of statutes.” Malone v. Department of Justice, 14 MSPR 403, 406 (1983) (citing Montana Ch. of Assn. of Civilian Technicians, Inc. v. Young, 514 F. 2d 1165, 1167 (CA9 1975)). Thus, the Board’s own self-described role in the administrative process is simply to apply the relevant statutes as written, without addressing any facial challenges to the validity of those statutes.

III

There is no basis for the majority’s conclusion that petitioners must file their constitutional challenges before the Board instead of a federal district court. Congress has not expressly curtailed the jurisdiction of the federal courts to consider facial constitutional claims relating to federal employment, and no such limitation can be fairly discerned from the CSRA. Not only are petitioners’ claims “wholly collateral to [the CSRA’s] review provisions and outside the agency’s expertise,” Thunder Basin, 510 U. S., at 212 (internal quotation marks omitted), but the Board itself admits that it is completely powerless to consider the merits of petitioners’ arguments. In short, neither efficiency nor agency expertise can explain why Congress would want the Board to have exclusive jurisdiction over claims like these. To the contrary, imposing a scheme of exclusive administrative review in this context breeds inefficiency and creates a procedural framework that is needlessly vexing.

A

Petitioners argue that registration for the military draft violates the Equal Protection and Bill of Attainder Clauses. These facial constitutional arguments are entirely outside the Board’s power to decide, and they do not remotely implicate the Board’s administrative expertise. They have nothing to do with the statutory rules of federal employment, and nothing to do with any application of the “merit system principles” or the “prohibited personnel practices” that the Board administers.

Petitioners’ constitutional claims also have no relation to any of the facts that might be relevant to a proceeding before the Board. The Board typically addresses factual issues pertaining to the specific circumstances in which employee grievances arise. For example: Why was a particular employee removed from federal employment? Does the employer have a sound, nonprohibited basis for the employment action in question? See, e.g., Davis v. Department of Veterans Affairs, 106 MSPR 654, 657–658 (2007).

By contrast, petitioners’ claims involve general factual issues pertaining to the facial constitutionality of the military draft. The equal protection question is whether men and women are sufficiently different to justify disparate treatment under the Selective Service Act. Rostker v. Goldberg, 453 U. S. 57, 78 (1981) . The factual record that petitioners wish to develop would address issues of gender difference that might be considered relevant to military service. See Brief for Petitioners 48 (alleging that “women’s role in the military has changed dramatically in the past thirty years”). Likewise, under the Bill of Attainder Clause, the key question is whether requiring draft registration as a condition of federal employment amounts to the singling out of a particular person or group for punishment without trial. See Nixon v. Administrator of General Services, 433 U. S. 425 –469. Whatever the relevant facts may be on either claim, it is clear that they can have no conceivable bearing on any matter the Board is authorized to address.

B

Administrative agencies typically do not adjudicate facial constitutional challenges to the laws that they administer. Such challenges not only lie outside the realm of special agency expertise, but they are also wholly collateral to other types of claims that the agency is empowered to consider. When “the administrative appeals process does not address the kind of . . . constitutional claims” at issue, we cannot infer that Congress intended to “limit[t] judicial review of these claims to the procedures set forth in [the statutory scheme].” McNary v. Haitian Refugee Center, Inc., 498 U. S. 479, 493 (1991) .

Several other cases confirm this basic principle. In Free Enterprise Fund, for example, the plaintiffs were not required to pursue their constitutional claims through the Public Accounting Company Oversight Board, because they were challenging the very existence of the Board itself. 561 U. S., at ___ – ___ (slip op., at 8–10). Likewise, in Johnson v. Robison, 415 U. S. 361 –374 (1974). Where petitioners brought claims “challenging the constitutionality of laws providing benefits,” the Court held that these claims were not precluded by a statute creating exclusive administrative review over how those benefits were administered. And in Mathews v. Eldridge, 424 U. S. 319 –332 (1976), we held that although a party challenging the denial of statutory benefits was generally required to proceed through the statutory process of administrative review, a constitutional challenge to the ad-ministrative process itself could still be brought directly in federal court.

The present case follows the same pattern: Petitioners are challenging the facial validity of a law that the Board is bound to apply to them, and so it makes little sense for them to seek review before the Board.

The wholly collateral nature of petitioners’ claims makes them readily distinguishable from claims that this Court has held to be impliedly excluded from the original jurisdiction of the federal courts. In Fausto, for example, we held that the CSRA precluded a statutory Back Pay Act claim involving a dispute over whether an employee had engaged in unauthorized use of a Government vehicle. 484 U. S., at 455. The plaintiff in that case did not challenge the constitutional validity of the applicable legal framework, but argued instead that the framework had been improperly applied to him. He argued that he had been wrongfully suspended from work, and that he was entitled to backpay as a result. Id., at 440. For that type of fact-specific personnel dispute, we determined, Congress had intended for the CSRA’s comprehensive administrative scheme to provide the exclusive avenue of relief. Id., at 455.

Similarly, in Bush v. Lucas, 462 U. S. 367 (1983) , we declined to allow a claim under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971) , brought by an employee seeking money damages for an alleged “retaliatory demotion or discharge because he ha[d] exercised his First Amendment rights.” 462 U. S., at 381. Although the claim was constitutional in nature, we noted that it “ar[o]se out of an employment relationship that is governed by comprehensive procedural and substantive provisions” that had been enacted by Congress. Id., at 368. The employee was pursuing an as-applied challenge that depended on the case-specific facts of why he had been fired. The gravamen of the employee’s claim was that he had been “unfairly disciplined for making critical comments about [his agency].” Id., at 386. Under the statutory scheme that Congress had created, the employee could have pursued a very similar statutory claim for wrongful removal within the administrative process. Id., at 386–388. Under these circumstances, we found that Congress did not intend to allow a duplicative nonstatutory claim for damages based on the same set of underlying facts.

Finally, the majority’s reliance on Thunder Basin is entirely misplaced. See ante, at 13. In that case, we found that a statutory scheme impliedly precluded a pre-enforcement challenge brought by a mining company seeking to enjoin an order issued by the Mine Safety and Health Administration. 510 U. S., at 205. Importantly, the plaintiff company was seeking review of purely statutory claims that were reviewable in the first instance by the administrative commission that Congress had established. The only constitutional issue was a matter of timing: The company argued that it had a due process right to immediate judicial review of its statutory claims, because it would suffer irreparable harm if it were forced to wait until after the agency initiated an enforcement action. Ibid. The Court disagreed, holding that the statutory scheme was “consistent with due process” even though it provided for only postenforcement review. Id., at 218. Thus, the Court rejected the company’s constitutional claim “not on preclusion grounds but on the merits.” Id., at 219 (Scalia, J., concurring in part and concurring in judgment). The heart of the preclusion analysis was that the company could not use a preenforcement challenge to obtain judicial review of statutory claims that Congress had clearly intended to channel into administrative review.*

C

By requiring facial constitutional claims to be filed before the Board, the majority’s holding sets up an odd sequence of procedural hoops for petitioners to jump through. As the Government concedes, the Board is powerless to adjudicate facial constitutional claims, and so these claims cannot be addressed on the merits until they reach the Federal Circuit on appeal. As a result, the Federal Circuit will be forced to address the claims in the first instance, without the benefit of any relevant factfinding at the administrative level. This is a strange result, because “statutes that provide for only a single level of judicial review in the courts of appeals are traditionally viewed as warranted only in circumstances where district court factfinding would unnecessarily duplicate an adequate administrative record.” McNary, 498 U. S., at 497 (internal quotation marks omitted).

The Government admits that the absence of first-tier factfinding might very well result in “the initial record” being “insufficient to permit meaningful consideration of a constitutional claim,” but suggests that the court could always “remand the case to the [Board] for further factual development.” Brief for Respondents 41. The majority accepts this solution, ante, at 15, but it is hard to see how it will work in practice. Without any authority to decide merits issues, the Board may find it difficult to adjudicate disputes about the relevancy of evidence sought in discovery. Nor will the Board find it easy to figure out which facts it must find before sending the case back to the Federal Circuit.

Even if these problems can be overcome, that will not resolve the needless complexity of the majority’s approach. According to the majority, petitioners should file their claims with the Board, which must then kick the claims up to the Federal Circuit, which must then remand the claims back to the Board, which must then develop the record and send the case back to the Federal Circuit, which can only then consider the constitutional issues.

To be sure, this might be sufficient to afford “meaningful review” of petitioners’ claims, ante, at 16–17, but that is not the only consideration. The question is whether it is “fairly discernible” that Congress intended to impose these pinball procedural requirements instead of permitting petitioners’ claims to be decided in a regular lawsuit in federal district court. And why would it? As already noted, the benefits of preventing claim-splitting are considerably reduced with respect to facial constitutional claims that are wholly collateral to an administrative proceeding. Because collateral constitutional claims have no overlap with the issues of law and fact that will pertain to the administrative proceeding, allowing the constitutional claims to be adjudicated separately before a district court does not invite wasteful or duplicative review. It simply allows the district court to develop the factual record and then provide a first-tier legal analysis, thereby enhancing both the quality and efficiency of appellate review.

To the extent that there is some need to prevent claim-splitting, that purpose is already served by ordinary principles of claim preclusion. Plaintiffs generally must bring all claims arising out of a common set of facts in a single lawsuit, and federal district courts have discretion to enforce that requirement as necessary “to avoid duplicative litigation.” Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976) ; Stone v. Department of Aviation, 453 F. 3d 1271, 1278 (CA10 2006) (“A plaintiff’s obligation to bring all related claims together in the same action arises under the common-law rule of claim preclusion prohibiting the splitting of actions”). See also 18 C. Wright et al., Federal Practice and Procedure §4406, p. 40 (2d ed. 2002, Supp. 2011) (discussing “principles of ‘claim splitting’ that are similar to claim preclusion, but that do not require prior judgment”). Thus, if an aggrieved employee goes to a district court with claims that would duplicate the factfinding or legal analysis of a separate Board proceeding, the district court would be free to dismiss the case.

The majority suggests that its approach will allow the Board to resolve some cases on nonconstitutional grounds, thus avoiding needless adjudication of constitutional issues. See ante, at 18. But achieving that goal does not require the blunt instrument of jurisdictional preclusion. District courts have broad discretion to manage their dockets, including the power to refrain from reviewing a constitutional claim pending adjudication of a nonconstitutional claim that might moot the case. See Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U. S. 180, 183 (1952) (acknowledging the equitable discretion of courts, in furtherance of “[w]ise judicial administration” and “conservation of judicial resources,” to stay proceedings to prevent “two litigations where one will suffice” (internal quotation marks omitted)). In short, the district courts are well equipped to guard against piecemeal litigation without any help from the majority’s holding.

Finally, the majority contends that channeling facial constitutional claims through the Board is necessary to provide “clear guidance about the proper forum for the employee’s claims at the outset of the case.” Ante, at 11. Because it can be hard to tell the difference between facial and as-applied challenges, the majority argues, it is less confusing simply to require that all claims must be brought before the Board. This is a red herring. Labels aside, the most sensible rule would be to allow initial judicial review of constitutional claims that attack the validity of a statute based on its inherent characteristics, not as a result of how the statute has been applied. That line is bright enough, and the distinction is already one that the Board must draw based on its own determination that it can hear some as-applied challenges but lacks “authority to determine the constitutionality of statutes.” Malone, 14 MSPR, at 406.

IV

The presumptive power of the federal courts to hear constitutional challenges is well established. In this case, however, the majority relies on a very weak set of inferences to strip the courts of their original jurisdiction over petitioners’ claims. Because I believe Congress would have been very surprised to learn that it implied this result when it passed the CSRA, I respectfully dissent.

__________________________________

1 * The majority contends that the petitioner in Thunder Basin really had two distinct constitutional claims. The primary constitutional claim was a “due process challenge to a statute that permitted a regulatory agency, before a hearing, to immediately fine the petitioner for noncompliance with the statute.” Ante, at 14, n. 6. On top of this, according to the majority, the petitioner also had a separate constitutional claim, which asserted that precluding initial judicial review of the first constitutional claim would violate due process. In the major-ity’s view, only the latter claim was rejected on the merits. But this hairsplitting makes no difference. The entire thrust of the petitioner’s constitutional argument was simply that proceeding through the stat-utory scheme would make meaningful judicial review impossible.The Court rejected that argument, effectively disposing of any constitutional infirmity that the petitioner alleged. Unlike in the present case, there was no freestanding constitutional claim attacking the validityof the statutory framework on substantive rather than procedural grounds.

Print this transcript 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.

Print this transcript Transcript: 

Chief Justice John G. Roberts: Justice Thomas has our opinion this morning in case 11-45, Elgin versus Department of the Treasury.

Justice Clarence Thomas: This case comes to us on a writ of certiorari to United States Court of Appeals for the First Circuit.

The Civil Service Reform Act or CSRA established a comprehensive system of administrative and judicial review for federal employees who wished to challenge adverse employment actions, including removals from federal service.

A removed employee may appeal to the Merit Systems Protection Board which is authorized to order reinstatement, back pay, and attorneys fees to prevailing employees.

If the employee is not satisfied with the Boards decision, he may seek judicial review in the United States Court of Appeals for the Federal Circuit.

Petitioners are former federal employees who were discharged pursuant to Section 3328 of Title 5, a statute that bars from federal employment, persons who fail to register for the drafts.

Only petitioner Elgin appealed his termination to the Merit Systems Protection Board.

Elgin argued that Section 3328 was an unconstitutional bill of attainder and unconstitutionally discriminates on the basis of sex since only men are required to register for the draft.

The Board dismissed Elgins appeal for lack of jurisdiction, concluding that a person, whose employment was absolutely barred by statute, was not an employee with a right to review before the Board.

Rather than seek judicial review before the Federal Circuit, Elgin joined the other petitioners in filing this action in Federal District Court.

Petitioners raised the same constitutional claims to Section 3328 and sought reinstatement to federal employment and back pay.

The District Court denied petitioners' claims on the merits.

On appeal, the First Circuit vacated the judgment and remanded, instructing the District Court to dismiss petitioners suit for lack of jurisdiction.

In a holding that neither party challenges here, the Court of Appeals first included that despite the statutory bar to their employment, petitioners were federal employees entitled to review under the CSRA.

The Court of Appeals then concluded that the CSRA review scheme is the exclusive remedy for employees challenging removal, even those who do so by challenging the constitutionality of a federal statute.

The Court of Appeals acknowledged the Merit Systems Protection Board's past holding that it lacks jurisdiction to consider a statute's constitutionality, but the Court concluded that this did not exempt petitioners from the CSRAs exclusive scheme because the Federal Circuit could adjudicate -- Federal Circuit could adjudicate petitioners constitutional claims.

In an opinion filed with the clerk today, we affirm the judgment of the First Circuit.

Whereas here, a statute challenged -- channels judicial review of constitutional claims to a particular court that can perform meaningful review, we conclude that Congress intended that avenue of judicial review to be exclusive when Congress intent is fairly discernible in the statutory text structure and purpose.

The CSRA sets out an elaborate -- in elaborate detail the system of review before the Board and the Federal Circuit and this indicates that Congress did not intend employees to access another avenue of review in District Court.

There is no textual support for petitioners contention that Congress intended to exempt covered employees and employment actions from the CSRA scheme simply because the nature of the employee's claim is a constitutional challenge to a federal statute.

Under the CSRA, the availability of review turns on the type of employee and adverse action, not on the type of legal claim at issue.

Furthermore, the purpose of the CSRA was to provide a streamline review scheme that would eliminate employee challenges in federal courts across the country.

That purpose would severely undermined if employees with constitutional claims to challenge adverse employment action in District Courts.

We reject petitioner's contention that their claims cannot receive meaningful review within the CSRA scheme, even assuming that the Board cannot decide their constitutional challenges, the Federal Circuit can do so.

We also disagree with petitioner's argument that their claims are wholly collateral to the CSRA scheme and outside of the Boards expertise because they have nothing to do with supervisor employee disputes that the Board ordinarily adjudicates.

Petitioner's claims are the vehicle by which they seek to overturn their removal from federal employment and obtain reinstatement and back pay.

The Board routinely addresses challenges to removal and requests for such relief and petitioner's appeals present issues such as constructive discharge to which the Board may apply its expertise.

For these reasons, we conclude that the CSRA precludes District Court jurisdiction in this case.

Justice Alito has filed a dissenting opinion in which Justices Ginsburg and Kagan join.