Supremes Curtail Avenues of Appeal for Fired Federal Employees

The Supreme Court has ruled 6-3 that district courts do not have jurisdiction in federal employee removal cases simply because the challenge is based on the constitutionality of the law directing the removal. (Elgin v. Department of the Treasury, U.S. Supreme Court No. 11-45 (6/11/12)

Through enactment of the Civil Service Reform Act, the court opines, “it is fairly discernible that Congress intended the statute’s review scheme to provide the exclusive avenue to judicial review for covered employees who challenge covered adverse employment actions….” (Opinion p. 2)

The case involves several federal employees who were removed for failing to register with selective service. 5 USC section 3328) bars from federal employment anyone who has knowingly and willfully failed to register for the Selective Service as required by law.

Instead of appealing their removals to the Merit Systems Protection Board (MSPB) and then to the Federal Circuit Court of Appeals, these individuals took their case to a federal district court where they argued the law requiring their termination was unconstitutional. (One individual did initially appeal to the MSPB. When the Board ruled that it did not have jurisdiction over his appeal and advised him of his recourse to the Federal Circuit, he instead joined the district court lawsuit.)

The district court took jurisdiction, holding that the CSRA did not preclude it from hearing the claims because the MSPB did not have authority to determine the constitutionality of the law.

On appeal by the government, the First Circuit bounced the case back to the district court and ordered it to dismiss the case for lack of jurisdiction. The appeals court held that a case challenging the constitutionality of a law does not preclude it from being considered under the CSRA. Under the CSRA review scheme, the Federal Circuit Court of Appeals is the forum that can tackle these kinds of issues.

The Supreme Court took jurisdiction of the case and has now affirmed the appeals court’s ruling.

The effect of this decision is to push employee appeals through the MSPB instead of permitting avenues of appeal outside the scheme set up in the CSRA.


Elgin v. Department of Treasury 11-45

Elgin v. Department of Treasury 11-45

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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