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. ReichThe 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.



Elgin has sparked extensive commentary since it was handed down (including one in only 17 syllables at Supreme Court Haiku). At the Consumer Law & Policy Blog, Leah Nicholls and Brian Wolfman – counsel for plaintiffs at the Supreme Court – commented on the Court’s opinion, noting that it was far from clear that the MSPB had the power to meaningfully oversee factual discovery relating to a pending constitutional claim. The Labor & Employment Blog noted the importance of the decision to federal employers and employees, and speculated that the decision might be extended beyond that context. In a column for Verdict and a post for Dorf on Law, Professor Mike Dorf of Cornell Law School noted that the decision might mark the end of the “constitutional fact” doctrine, in which the Court has held, going back to Crowell v. Benson in 1932, that parties have a right to de novo determination of facts underlying a constitutional claim. In SCOTUSBlog, Professor Stephen Vladeck wondered how much was truly left of the Webster v. Doe line of cases requiring “heightened” scrutiny of Congress’ intent in constitutional cases following Elgin.

In fact, Elgin extends the rule of Thunder Basin so far as to virtually limit Webster to its unusual facts. The result in Thunder Basin was hardly surprising; the mine operator’s constitutional claim could fairly be characterized as a claim that exclusive administrative jurisdiction was itself a due process violation.  In contrast, the claim in Elgin is that the underlying statute that the administrative agency is charged with administering is substantively unconstitutional. While this seems closer in substance to the constitutional claim in Webster, the Court made it clear that that doesn’t matter; as long as a judicial forum is available on appeal – which it wasn’t in Webster – a discharged employee cannot manufacture a Federal jury trial by the simple expedient of alleging a constitutional claim.

The defense bar should assume that the Court meant what it said in Elgin. When plaintiffs bring a constitutional claim in district court in an area governed by arguably exclusive administrative jurisdiction, counsel should not hesitate to challenge subject matter jurisdiction. There is little in the Elgin opinion to suggest that if the courts were confronted by a similarly comprehensive administrative review structure, they would hesitate to force plaintiffs to prosecute their claims before the appropriate agency, subject to deferential appellate review, and deny them access to expensive civil discovery and a jury trial.