The justices of the U.S. Supreme Court will soon decide whether the Civil Service Reform Act precludes federal workers from bringing certain constitutional claims in federal court.

The case of Elgin v. U.S. Dept. of the Treasury involves former federal employees who were fired for failing to register with the Selective Service system, a requirement for federal employment.

The plaintiffs claimed that they did not knowingly or willingly fail to register. Some contended that they did register, and others claimed to be unaware of the registration requirement.

After their terminations, the employees each appealed to the Merit Systems Protection Board, claiming that the Selective Service requirement violated their Equal Protection rights because only men were required to register with the Selective Service. They also claimed the registration requirement was an unconstitutional Bill of Attainder.

The MSPB dismissed the complaints, holding that it lacked jurisdiction to consider constitutional claims.

The former employees then sued in federal District Court, which granted summary judgment to the employees on the Bill of Attainder claim.

But the 1st U.S. Circuit Court of Appeals reversed, holding that under the Civil Service Reform Act, federal employees can only challenge the constitutionality of employment decisions that are before the MSPB, and may thereafter appeal adverse decisions to the 1st Circuit.

The employees sought certiorari from the Supreme Court, which agreed to hear the case.

‘Congress made a mistake’

At oral arguments, Harvey A. Schwartz, of counsel to Rodgers, Powers & Schwartz in Boston, argued on the former employees’ behalf that the act did not revoke the jurisdiction of District courts to hear federal workers’ claims challenging the constitutionality of the law.

If that was lawmakers’ intent, Schwartz argued, then “Congress could have said so. Congress didn’t say so.”

Justice Elena Kagan asked what should happen if an employee brings both constitutional and statutory claims.

“Does he bring the constitutional claims in court but the statutory claims [before] the commission?” Kagan asked.

“Because of normal rules against splitting of claims, the employee would have to make a decision” about which claim to bring, Schwartz responded.

“That seems just as bad,” Kagan said. “Why would we do that?”

“Because of the importance of making the constitutional claims available for judicial review,” Schwartz said.

Justice Sonia Sotomayor asked whether a “facial challenge goes to the District Court and a constitutional as-applied challenge goes to the commission?”

“Yes,” Schwartz said. “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[ity]” of a statute.

“Why should there be a difference?” asked Justice Anthony M. Kennedy. “If the MSPB has this expertise in as-applied [challenges], why doesn’t it have it for facial [claims]?”

After other justices also expressed confusion over where the employees want to draw the line, Schwartz clarified.

“Rather than using terms such as ‘facial’ or ‘as-applied,’ where the dividing line can be somewhat blurry, I propose drawing the dividing line [at] a case where the employee is saying, ‘This statute is unconstitutional. Congress made a mistake.’”

‘Absolutely weird’

Eric J. Feigin, assistant to the solicitor general, argued that the employees’ test would lead to “unclear and easily manipulated jurisdictional rules.”

“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 [whether it can make a determination] on non-constitutional grounds,” Feigin said.

“So 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 going to take two days to present,’ the government is going to say, ‘It’s OK with us,’ right?” Chief Justice John G. Roberts Jr. asked.

“We will not object that it’s not beyond the jurisdiction of the agency to decide,” Feigin said.

“Well, I will object,” Justice Antonin Scalia said, drawing laughter. “Why is the agency taking evidence on an issue that it has no jurisdiction to decide? That is absolutely weird.”

Feigin said the situation is analogous to circumstances in which “a District Court reserves to itself a decision on the merits of an action and then delegates to a magistrate judge decisions on discovery.”

“Well, it’s 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?’” Kagan noted.

“The only thing that we think the MSPB lacks authority to do [is] issue an order on the merits declaring a federal statute unconstitutional,” Feigin said.

A decision is expected before the Supreme Court term ends in June.