By Leah Nicholls and Brian Wolfman
Monday, in Elgin v. Department of the Treasury, the Supreme Court held 6-3 that federal employees cannot bring equitable constitutional claims in district court. Rather, the Civil Service Reform Act (CSRA) impliedly requires that employees bring those claims before the Merit Systems Protection Board (MSPB). In Elgin, four former federal employees had sued because they were terminated when their employing agencies learned that they had failed to register with the Selective Service. They contended that the law under which they were fired is unconstitutional because it violates the equal protection component of the Due Process Clause since it applies only to men and is a Bill of Attainder.
Both sides agreed that the MSPB lacked the power to strike down a law as unconstitutional, meaning that the MSPB could not actually decide the plaintiffs’ constitutional claims. Defendants argued—and the Court agreed—that was acceptable because employees could appeal from the MSPB to the Federal Circuit, which can decide the constitutional claims. If factfinding was necessary, they reasoned, the Federal Circuit could remand to the MSPB. There are a number of arguments on the other side, not least of which is that nothing in the CSRA says anything about requiring constitutional claims to go to the MSPB—it’s quite a stretch to assume that Congress silently intended to preclude district court review in favor of sending facial constitutional claims to a forum that cannot decide them and, in any event, has no special expertise to decide them. (The MSPB is an expert tribunal that sits to hear disputes between employees and their managers; it hardly was designed to decide whether the Selective Service registration requirement is constitutional.)
The question whether the district courts are available to hear a federal employee’s constitutional challenge to a statute that imposes a lifetime ban on federal employment is not earth shattering. There are very few categorical federal employment bans such as the one at issue in Elgin. But the bigger story is the steady erosion of the ability of plaintiffs to have their constitutional challenges heard in a federal district court. After the landmark Bivens case, it seemed that the federal courts were open to plaintiffs with constitutional damages claims against federal officers. But since 1980, the Court has cut back, making Bivens the exception, not the rule, in damages actions. In subsequent cases, when a federal administrative scheme exists or state-law provides some sort of remedy (even if not the remedy sought by the plaintiff in federal court), the Court has withheld a federal forum. But even then, many observers’ assumption, based on precedents as old as Marbury, was that the federal courts would still be there to safeguard constitutional rights by providing equitable remedies. To be sure, Elgin preserves review in the Federal Circuit (and that’s good), but only after the plaintiff runs his claim through an administrative tribunal that is powerless to render the relief sought and, at least in the first instance, powerless to oversee factual discovery that may be required for meaningful appellate review.
Disclosure: The authors of this post were counsel for the plaintiffs in the Supreme Court.