Last month, I joined a panel discussion on blogging during a PLI program on social media led by LexBlog's Kevin O'Keefe. I explained how important following blogs through an RSS Reader is to keeping up to speed in a world where information moves more quickly than ever.
I recalled that comment this week while thinking about the Supreme Court’s recent decision in Elgin v. Department of Treasury. Years ago, expert analysis of important new decisions would take weeks, if not months, to become widely available, largely through law reviews and journals. Today, busy lawyers have the benefit of the insights of lawyers and law professors around the country within days, sometimes hours. Elgin has sparked particularly interesting commentary about a range of difficult federal courts issues which has helped crystallize my reading of the opinions.
Elgin involved a group of Federal employees who were terminated for willfully failing to register with the Selective Service, as required by 5 U.S.C. § 3328. The Civil Service Reform Act (“CLRA”) establishes a comprehensive framework for reviewing adverse personnel actions taken against Federal employees: first, the case goes before the Merit Systems Protection Board (“MSPB”) for hearing, and the employee may then seek appellate review at the United States Court of Appeals for the Federal Circuit.
The employees sued in Federal district court, arguing that Section 3328 was unconstitutional as a Bill of Attainder and pursuant to equal protection (since women aren’t subject to Selective Service registration). This created two problems: a number of lower courts have held that the MSPB has exclusive jurisdiction over covered employment actions. But on the other hand, it seemed clear that the MSPB couldn’t adjudicate the constitutional claim because it can’t strike down statutes. So does the employee really have to first litigate his claims before a Board that has no power to decide them?
Elgin turns on a conflict between two related lines of authority. In Webster v. Doe, a covert CIA employee was terminated by the Director pursuant to Section 102(c) of the National Security Act after informing his security officer that he was gay. The Supreme Court held that although the broad language of the NSA was sufficient to bar judicial review on traditional administrative grounds, it was not sufficient to bar judicial consideration of constitutional challenges: “where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear.”
Only six years later, the Court decided Thunder Basin Coal Co. v. Reich. The Federal Mine Safety Act requires mine operators and miners to designate representatives to participate in regular safety inspections. The Secretary of Labor had broad authority to compel compliance, subject to review by the Mine Safety Commission, then by the appropriate Federal court of appeals. The miners designated two union employees as their representatives. The mine operator filed suit pre-enforcement, arguing that compelling it to first violate the Act and then challenge any penalties administratively violated its due process rights. Rather than applying Webster, the Supreme Court held that all that was necessary when Congress wished to merely delay, rather than preclude judicial review of constitutional claims, was that its intent be “fairly discernible.”
By a 6-3 vote, the Elgin Court held that Thunder Basin governed, and the district courts had no jurisdiction over petitioners’ constitutional claims. It made no difference that the MSPB had no jurisdiction to strike down the statute – the Federal Circuit did have such power once the case went up on appeal. Nor did it make any difference that the Federal Circuit, as an appellate court, was poorly suited to supervise any factual development that might be necessary to decide the constitutional issue; if the factual record was inadequate, the Circuit could remand the matter to the MSPB for discovery, and decide the claims when the case returned to it.
Join me below the jump for some thoughts about what it all means.