Elgin v. Department of the Treasury , 132 S. Ct. 2126 ( 2012 )

(Slip Opinion) OCTOBER TERM, 2011 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ELGIN ET AL. v. DEPARTMENT OF THE TREASURY
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT
No. 11–45. Argued February 27, 2012—Decided June 11, 2012
The Civil Service Reform Act of 1978 (CSRA) “established a compre-
hensive system for reviewing personnel action taken against federal
employees,” United States v. Fausto, 484 U. S. 439, 455, including
removals, 5 U. S. C. §7512. A qualifying employee has the right to a
hearing before the Merit Systems Protection Board (MSPB),
§§7513(d), 7701(a)(1)–(2), which is authorized to order reinstatement,
backpay, and attorney’s fees, §§1204(a)(2), 7701(g). An employee who
is dissatisfied with the MSPB’s decision is entitled to judicial review
in the Federal Circuit. §§7703(a)(1), (b)(1).
Petitioners were federal employees discharged pursuant to 5
U. S. C. §3328, which bars from Executive agency employment any-
one who has knowingly and willfully failed to register for the Selec-
tive Service as required by the Military Selective Service Act, 50
U. S. C. App. §453. Petitioner Elgin challenged his removal before
the MSPB, claiming that §3328 is an unconstitutional bill of attain-
der and unconstitutionally discriminates based on sex when com-
bined with the Military Selective Service Act’s male-only registration
requirement. The MSPB referred the case to an Administrative Law
Judge (ALJ), who dismissed the appeal for lack of jurisdiction, con-
cluding that an employee is not entitled to MSPB review of agency
action that is based on an absolute statutory bar to employment. The
ALJ also concluded that the MSPB lacked authority to determine the
constitutionality of a federal statute. Rather than seeking further
MSPB review or appealing to the Federal Circuit, Elgin joined other
petitioners raising the same constitutional challenges to their remov-
als in a suit in Federal District Court. The District Court found that
it had jurisdiction and denied petitioners’ constitutional claims on the
2 ELGIN v. DEPARTMENT OF TREASURY
Syllabus
merits. The First Circuit vacated and remanded with instructions to
dismiss for lack of jurisdiction. The First Circuit held that petition-
ers were employees entitled to MSPB review despite the statutory
bar to their employment. The court further concluded that challeng-
es to a removal are not exempt from the CSRA review scheme simply
because an employee challenges the constitutionality of the statute
authorizing the removal.
Held: The CSRA precludes district court jurisdiction over petitioners’
claims because 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 em-
ployment actions, even when those employees argue that a federal
statute is unconstitutional. Pp. 5–20.
(a) Relying on Webster v. Doe, 486 U. S. 592, 603, petitioners claim
that 28 U. S. C. §1331’s general grant of federal-question jurisdiction
to district courts remains undisturbed unless Congress explicitly di-
rects otherwise. But Webster’s “heightened showing” applies only
when a statute purports to “deny any judicial forum for a colorable
constitutional claim,” 486 U. S., at 603, not when Congress channels
judicial review of a constitutional claim to a particular court, see
Thunder Basin Coal Co. v. Reich, 510 U. S. 200. Here, where the
claims can be “meaningfully addressed in the” Federal Circuit, id., at
215, the proper inquiry is whether Congress’ intent to preclude dis-
trict court jurisdiction was “ ‘fairly discernible in the statutory
scheme,’ ” id., at 207. Pp. 5–6.
(b) It is “fairly discernible” from the CSRA’s text, structure, and
purpose that Congress precluded district court jurisdiction over peti-
tioners’ claims. Pp. 6–12.
(1) Just as the CSRA’s “elaborate” framework demonstrated
Congress’ intent to entirely foreclose judicial review to employees to
whom the CSRA denies statutory review in Fausto, 484 U. S., at 443,
the CSRA indicates that extrastatutory review is not available to
those employees to whom the CSRA grants administrative and judi-
cial review. It “prescribes in great detail the protections and reme-
dies applicable to” adverse personnel actions against federal employ-
ees, ibid., specifically enumerating the major adverse actions and
employee classifications to which the CSRA’s procedural protections
and review provisions apply, §§7511, 7512, setting out the procedures
due an employee prior to final agency action, §7513, and exhaustively
detailing the system of review before the MSPB and the Federal Cir-
cuit, §§7701, 7703. Petitioners and the Government do not dispute
that petitioners are removed employees to whom CSRA review is
provided, but petitioners claim that there is an exception to the
CSRA review scheme for employees who bring constitutional chal-
Cite as: 567 U. S. ____ (2012) 3
Syllabus
lenges to federal statutes; this claim finds no support in the CSRA’s
text and structure. The availability of administrative and judicial
review under the CSRA generally turns on the type of civil service
employee and adverse employment action at issue. Nothing in the
CSRA’s text suggests that its exclusive review scheme is inapplicable
simply because a covered employee raises a constitutional challenge.
And §7703(b)(2)—which expressly exempts from Federal Circuit re-
view challenges alleging that a covered action was based on discrimi-
nation prohibited by enumerated federal employment laws—
demonstrates that Congress knew how to provide alternative forums
for judicial review based on the nature of an employee’s claim. Pp. 6–
10.
(2) The CSRA’s purpose also supports the conclusion that the
statutory review scheme is exclusive, even for constitutional chal-
lenges. The CSRA’s objective of creating an integrated review
scheme to replace inconsistent decisionmaking and duplicative judi-
cial review would be seriously undermined if a covered employee
could challenge a covered employment action first in a district court,
and then again in a court of appeals, simply by challenging the con-
stitutionality of the statutory authorization for the action. Claim-
splitting and preclusion doctrines would not necessarily eliminate the
possibility of parallel proceedings before the MSPB and the district
court, and petitioners point to nothing in the CSRA to support the no-
tion that Congress intended to allow employees to pursue constitu-
tional claims in district court at the expense of forgoing other, poten-
tially meritorious claims before the MSPB. Pp. 10–12.
(c) Petitioners invoke the “presum[ption] that Congress does not in-
tend to limit [district court] jurisdiction if ‘a finding of preclusion
could foreclose all meaningful judicial review’; if the suit is ‘wholly
collateral to a statute’s review provisions’; and if the claims are ‘out-
side the agency’s expertise.’ ” Free Enterprise Fund v. Public Com-
pany Accounting Oversight Bd., 561 U. S. ___, ___. But none of those
characteristics is present here. Pp. 12–20.
(1) Petitioners’ constitutional claims can receive meaningful re-
view within the CSRA scheme even if the MSPB, as it claims, is not
authorized to decide a federal law’s constitutionality. Their claims
can be “meaningfully addressed” in the Federal Circuit, which has
held that it can determine the constitutionality of a statute upon
which an employee’s removal was based, notwithstanding the
MSPB’s professed lack of authority to decide the question. The CSRA
review scheme also fully accommodates the potential need for a fac-
tual record. Even without factfinding capabilities, the Federal Cir-
cuit may take judicial notice of facts relevant to the constitutional
question. If further development is necessary, the CSRA empowers
4 ELGIN v. DEPARTMENT OF TREASURY
Syllabus
the MSPB to take evidence and find facts for Federal Circuit review.
See 5 U. S. C. §§1204(b)(1)–(2). Petitioners err in arguing that the
MSPB will invariably dismiss a case without ever reaching the fact-
finding stage in an appeal such as theirs. The MSPB may determine
that it lacks authority to decide the issue; but absent another infirmi-
ty in the adverse action, it will affirm the employing agency’s deci-
sion. The Federal Circuit can then review the decision, including any
factual record developed by the MSPB. Petitioners’ argument is not
illustrated by Elgin’s case, which was dismissed on the threshold
ground that he was not an “employee” with a right to appeal because
his employment was absolutely barred by statute. Pp. 12–18.
(2) Petitioners’ claims are also not “wholly collateral” to the
CSRA scheme. Their constitutional claims are the vehicle by which
they seek to reverse the removal decisions, to return to federal em-
ployment, and to receive lost compensation. A challenge to removal
is precisely the type of personnel action regularly adjudicated by the
MSPB and the Federal Circuit within the CSRA scheme, and rein-
statement, backpay, and attorney’s fees are precisely the kinds of re-
lief that the CSRA empowers the MSPB and the Federal Circuit to
provide. Pp. 18–19.
(3) Finally, in arguing that their constitutional claims are not the
sort that Congress intended to channel through the MSPB because
they are beyond the MSPB’s expertise, petitioners overlook the many
threshold questions that may accompany a constitutional claim and
to which the MSPB can apply its expertise, e.g., whether a resigna-
tion, as in petitioner Tucker’s case, amounts to a constructive dis-
charge. Pp. 19–20.
641 F. 3d 6, affirmed.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, BREYER, and SOTOMAYOR, JJ., joined.
ALITO, J., filed a dissenting opinion, in which GINSBURG and KAGAN, JJ.,
joined.
Cite as: 567 U. S. ____ (2012) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–45
_________________
MICHAEL B. ELGIN, ET AL., PETITIONERS v. DEPART-
MENT OF THE TREASURY ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[June 11, 2012]
JUSTICE THOMAS delivered the opinion of the Court.
Under the Civil Service Reform Act of 1978 (CSRA), 5
U. S. C. §1101 et seq., certain federal employees may
obtain administrative and judicial review of specified ad-
verse employment actions. The question before us is
whether the CSRA provides the exclusive avenue to judi-
cial review when a qualifying employee challenges an
adverse employment action by arguing that a federal sta-
tute is unconstitutional. We hold that it does.
I
The CSRA “established a comprehensive system for
reviewing personnel action taken against federal employ-
ees.” United States v. Fausto, 484 U. S. 439, 455 (1988).
As relevant here, Subchapter II of Chapter 75 governs
review of major adverse actions taken against employees
“for such cause as will promote the efficiency of the ser-
vice.” 5 U. S. C. §§7503(a), 7513(a). Employees entitled to
review are those in the “competitive service” and “excepted
service” who meet certain requirements regarding proba-
2 ELGIN v. DEPARTMENT OF TREASURY
Opinion of the Court
tionary periods and years of service.1 §7511(a)(1). The re-
viewable agency actions are removal, suspension for more
than 14 days, reduction in grade or pay, or furlough for 30
days or less. §7512.
When an employing agency proposes a covered action
against a covered employee, the CSRA gives the employee
the right to notice, representation by counsel, an oppor-
tunity to respond, and a written, reasoned decision from
the agency. §7513(b). If the agency takes final adverse
action against the employee, the CSRA gives the employee
the right to a hearing and to be represented by an attor-
ney or other representative before the Merit Systems Pro-
tection Board (MSPB). §§7513(d), 7701(a)(1)–(2). The
MSPB is authorized to order relief to prevailing employ-
ees, including reinstatement, backpay, and attorney’s fees.
§§1204(a)(2), 7701(g).
An employee who is dissatisfied with the MSPB’s deci-
sion is entitled to judicial review in the United States
Court of Appeals for the Federal Circuit. That court “shall
review the record and hold unlawful and set aside any
agency action, findings, or conclusions” that are “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law,” “obtained without procedures re-
——————
1 TheCSRA divides civil service employees into three main catego-
ries. Fausto, 484 U. S., at 441, n. 1. “Senior Executive Service” em-
ployees occupy high-level positions in the Executive Branch but are not
required to be appointed by the President and confirmed by the Senate.
5 U. S. C. §3131(2). “[C]ompetitive service” employees—the relevant
category for purposes of this case—are all other Executive Branch
employees whose nomination by the President and confirmation by the
Senate are not required and who are not specifically excepted from the
competitive service by statute. §2102(a)(1). The competitive service
also includes employees in other branches of the Federal Govern-
ment and in the District of Columbia government who are specifically
included by statute. §§2102(a)(2)–(3). Finally, “excepted service”
employees are employees who are not in the Senior Executive Service
or in the competitive service. §2103.
Cite as: 567 U. S. ____ (2012) 3
Opinion of the Court
quired by law, rule, or regulation having been followed,”
or “unsupported by substantial evidence.” §§7703(a)(1),
(c). The Federal Circuit has “exclusive jurisdiction” over
appeals from a final decision of the MSPB. 28 U. S. C.
§1295(a)(9); see also 5 U. S. C. §7703(b)(1) (judicial review
of an MSPB decision “shall be” in the Federal Circuit).
II
Petitioners are former federal competitive service em-
ployees who failed to comply with the Military Selective
Service Act, 50 U. S. C. App. §453. That Act requires
male citizens and permanent-resident aliens of the United
States between the ages of 18 and 26 to register for the
Selective Service. Another federal statute, 5 U. S. C.
§3328 (hereinafter Section 3328), bars from employment
by an Executive agency anyone who has knowingly and
willfully failed to register. Pursuant to Section 3328, pe-
titioners were discharged (or allegedly constructively
discharged) by respondents, their employing agencies.
Among petitioners, only Michael Elgin appealed his
removal to the MSPB. Elgin argued that Section 3328 is
an unconstitutional bill of attainder and unconstitution-
ally discriminates on the basis of sex when combined with
the registration requirement of the Military Selective
Service Act. The MSPB referred Elgin’s appeal to an ad-
ministrative law judge (ALJ) for an initial decision.2
The ALJ dismissed the appeal for lack of jurisdiction,
concluding that an employee is not entitled to MSPB
review of agency action that is based on an absolute statu-
tory bar to employment. App. to Pet. for Cert. 100a–101a.
The ALJ also held that Elgin’s constitutional claims could
not “confer jurisdiction” on the MSPB because it “lacks
authority to determine the constitutionality of a statute.”
——————
2 See §7701(b)(1) (authorizing referral of MSPB appeals to an ALJ); 5
CFR §§1201.111–1201.114 (2011) (detailing procedures for an initial
decision by an ALJ and review by the MSPB).
4 ELGIN v. DEPARTMENT OF TREASURY
Opinion of the Court
Id., at 101a.
Elgin neither petitioned for review by the full MSPB
nor appealed to the Federal Circuit. Instead, he joined the
other petitioners in filing suit in the United States District
Court for the District of Massachusetts, raising the same
constitutional challenges to Section 3328 and the Military
Selective Service Act. App. 4, 26–28, 29. Petitioners
sought equitable relief in the form of a declaratory judg-
ment that the challenged statutes are unconstitutional, an
injunction prohibiting enforcement of Section 3328, rein-
statement to their former positions, backpay, benefits, and
attorney’s fees. Id., at 29–30.
The District Court rejected respondents’ argument that
it lacked jurisdiction and denied petitioners’ constitutional
claims on the merits. See Elgin v. United States, 697
F. Supp. 2d 187 (Mass. 2010). The District Court held
that the CSRA did not preclude it from hearing petition-
ers’ claims, because the MSPB had no authority to deter-
mine the constitutionality of a federal statute. Id., at 193.
Hence, the District Court concluded that it retained juris-
diction under the general grant of federal-question juris-
diction in 28 U. S. C. §1331. 697 F. Supp. 2d, at 194.
The United States Court of Appeals for the First Circuit
vacated the judgment and remanded with instructions to
dismiss for lack of jurisdiction. See 641 F. 3d 6 (2011).
The Court of Appeals held that challenges to a removal
are not exempted from the CSRA review scheme simply
because the employee argues that the statute authorizing
the removal is unconstitutional. Id., at 11–12. According
to the Court of Appeals, the CSRA provides a forum—the
Federal Circuit—that may adjudicate the constitutionality
of a federal statute, and petitioners “were obliged to use
it.” Id., at 12–13.
We granted certiorari to decide whether the CSRA pre-
cludes district court jurisdiction over petitioners’ claims
even though they are constitutional claims for equitable
Cite as: 567 U. S. ____ (2012) 5
Opinion of the Court
relief. See 565 U. S. ___ (2011). We conclude that it does,
and we therefore affirm.
III
We begin with the appropriate standard for determining
whether a statutory scheme of administrative and judicial
review provides the exclusive means of review for consti-
tutional claims. Petitioners argue that even if they may
obtain judicial review of their constitutional claims before
the Federal Circuit, they are not precluded from pursuing
their claims in federal district court. According to peti-
tioners, the general grant of federal-question jurisdiction
in 28 U. S. C. §1331, which gives district courts authority
over constitutional claims, remains undisturbed unless
Congress explicitly directs otherwise. In support of this
argument, petitioners rely on Webster v. Doe, 486 U. S.
592, 603 (1988), which held that “where Congress intends
to preclude judicial review of constitutional claims[,] its
intent to do so must be clear.” The Webster Court noted
that this “heightened showing” was required “to avoid the
‘serious constitutional question’ that would arise if a fed-
eral statute were construed to deny any judicial forum for
a colorable constitutional claim.” Ibid. (quoting Bowen v.
Michigan Academy of Family Physicians, 476 U. S. 667,
681, n. 12 (1986)). Petitioners contend that the CSRA
does not meet this standard because it does not expressly
bar suits in district court.
Petitioners’ argument overlooks a necessary predicate to
the application of Webster’s heightened standard: a statute
that purports to “deny any judicial forum for a colorable
constitutional claim.” 486 U. S., at 603. Webster’s stand-
ard does not apply where Congress simply channels judi-
cial review of a constitutional claim to a particular court.
We held as much in Thunder Basin Coal Co. v. Reich, 510
U. S. 200 (1994). In that case, we considered whether a
statutory scheme of administrative review followed by
6 ELGIN v. DEPARTMENT OF TREASURY
Opinion of the Court
judicial review in a federal appellate court precluded
district court jurisdiction over a plaintiff ’s statutory and
constitutional claims. Id., at 206. We noted that the
plaintiff ’s claims could be “meaningfully addressed in the
Court of Appeals” and that the case therefore did “not
present the ‘serious constitutional question’ that would
arise if an agency statute were construed to preclude all
judicial review of a constitutional claim.” Id., at 215, and
n. 20 (quoting Bowen, supra, at 681, n. 12). Accordingly,
we did not require Webster’s “heightened showing,” but
instead asked only whether Congress’ intent to preclude
district court jurisdiction was “ ‘fairly discernible in the
statutory scheme.’ ” 510 U. S., at 207 (quoting Block v.
Community Nutrition Institute, 467 U. S. 340, 351 (1984)).
Like the statute in Thunder Basin, the CSRA does not
foreclose all judicial review of petitioners’ constitutional
claims, but merely directs that judicial review shall occur
in the Federal Circuit. Moreover, as we explain below, the
Federal Circuit is fully capable of providing meaningful
review of petitioners’ claims. See infra, at 12–17. Accord-
ingly, the appropriate inquiry is whether it is “fairly dis-
cernible” from the CSRA that Congress intended covered
employees appealing covered agency actions to proceed
exclusively through the statutory review scheme, even in
cases in which the employees raise constitutional chal-
lenges to federal statutes.
IV
To determine whether it is “fairly discernible” that
Congress precluded district court jurisdiction over peti-
tioners’ claims, we examine the CSRA’s text, structure,
and purpose. See Thunder Basin, supra, at 207; Fausto,
484 U. S., at 443.
A
This is not the first time we have addressed the impact
Cite as: 567 U. S. ____ (2012) 7
Opinion of the Court
of the CSRA’s text and structure on the availability of
judicial review of a federal employee’s challenge to an
employment decision. In Fausto, we considered whether
a so-called “nonpreference excepted service employe[e]”
could challenge his suspension in the United States
Claims Court, even though the CSRA did not then afford
him a right to review in the MSPB or the Federal Circuit.3
Id., at 440–441, 448. Citing “[t]he comprehensive nature
of the CSRA, the attention that it gives throughout to the
rights of nonpreference excepted service employees, and
the fact that it does not include them in provisions for
administrative and judicial review contained in Chapter
75,” the Court concluded that “the absence of provision
for these employees to obtain judicial review” was a “con-
sidered congressional judgment.” Id., at 448. The Court
thus found it “fairly discernible” that Congress intended to
preclude all judicial review of Fausto’s statutory claims.4
Id., at 452 (citing Block, supra, at 349).
Just as the CSRA’s “elaborate” framework, 484 U. S.,
at 443, demonstrates Congress’ intent to entirely foreclose
judicial review to employees to whom the CSRA denies
statutory review, it similarly indicates that extrastatutory
review is not available to those employees to whom the
CSRA grants administrative and judicial review. Indeed,
in Fausto we expressly assumed that “competitive service
employees, who are given review rights by Chapter 75,
cannot expand these rights by resort to” judicial review
outside of the CSRA scheme. See id., at 450, n. 3. As
Fausto explained, the CSRA “prescribes in great detail the
protections and remedies applicable to” adverse personnel
——————
3 Certain veterans and their close relatives are considered “preference
eligible” civil service employees. Fausto, 484 U. S., at 441, n. 1.
4 Although Fausto interpreted the CSRA to entirely foreclose judicial
review, the Court had no need to apply a heightened standard like that
applied in Webster v. Doe, 486 U. S. 592 (1988), because Fausto did not
press any constitutional claims.
8 ELGIN v. DEPARTMENT OF TREASURY
Opinion of the Court
actions against federal employees. Id., at 443. For exam-
ple, Subchapter II of Chapter 75, the portion of the CSRA
relevant to petitioners, specifically enumerates the major
adverse actions and employee classifications to which the
CSRA’s procedural protections and review provisions
apply. 5 U. S. C. §§7511, 7512. The subchapter then sets
out the procedures due an employee prior to final agency
action. §7513. And, Chapter 77 of the CSRA exhaustively
details the system of review before the MSPB and the
Federal Circuit. §§7701, 7703; see also Fausto, supra, at
449 (emphasizing that the CSRA’s structure evinces “the
primacy” of review by the MSPB and the Federal Circuit).
Given the painstaking detail with which the CSRA sets
out the method for covered employees to obtain review of
adverse employment actions, it is fairly discernible that
Congress intended to deny such employees an additional
avenue of review in district court.
Petitioners do not dispute that they are employees who
suffered adverse actions covered by the foregoing provi-
sions of the CSRA. Nor do they contest that the CSRA’s
text and structure support implied preclusion of district
court jurisdiction, at least as a general matter. Petitioners
even acknowledge that the MSPB routinely adjudicates
some constitutional claims, such as claims that an agency
took adverse employment action in violation of an em-
ployee’s First or Fourth Amendment rights, and that these
claims must be brought within the CSRA scheme. See
Brief for Petitioners 33; Tr. of Oral Arg. 7–11, 15, 21; see
also, e.g., Smith v. Department of Transp., 106 MSPR 59,
78–79 (2007) (applying Pickering v. Board of Ed. of Town-
ship High School Dist. 205, Will Cty., 391 U. S. 563 (1968),
to an employee’s claim that he was suspended in retal-
iation for the exercise of his First Amendment rights);
Garrison v. Department of Justice, 67 MSPR 154 (1995)
(considering whether an order directing an employee to
submit to a drug test was reasonable under the Fourth
Cite as: 567 U. S. ____ (2012) 9
Opinion of the Court
Amendment). Nevertheless, petitioners seek to carve out
an exception to CSRA exclusivity for facial or as-applied
constitutional challenges to federal statutes.
The text and structure of the CSRA, however, provide
no support for such an exception. The availability of ad-
ministrative and judicial review under the CSRA gen-
erally turns on the type of civil service employee and
adverse employment action at issue. See, e.g., 5 U. S. C.
§§7511(a)(1) (defining “employee”), 7512 (defining “[a]c-
tions covered”), 7513(d) (providing that “[a]n employee
against whom an action is taken under this section is
entitled to appeal to the Merit Systems Protection Board”),
7703(a)(1) (providing that “[a]ny employee . . . adversely
affected or aggrieved by a final order or decision of the
Merit Systems Protection Board may obtain judicial re-
view of the order or decision” in the Federal Circuit).
Nothing in the CSRA’s text suggests that its exclusive
review scheme is inapplicable simply because a covered
employee challenges a covered action on the ground that
the statute authorizing that action is unconstitutional. As
the Government correctly notes, “[t]he plain language of
[the CSRA’s] provisions applies to an employee who chal-
lenges his removal on the ground that the statute requir-
ing it is unconstitutional no less than it applies to an
employee who challenges his removal on any other
ground.” Brief for Respondents 33–34.
In only one situation does the CSRA expressly exempt a
covered employee’s appeal of a covered action from Federal
Circuit review based on the type of claim at issue. When a
covered employee “alleges that a basis for the action was
discrimination” prohibited by enumerated federal em-
ployment laws, 5 U. S. C. §7702(a)(1)(B), the CSRA allows
the employee to obtain judicial review of an unfavorable
MSPB decision by filing a civil action as provided by the
applicable employment law. See §7703(b)(2). Each of the
cross-referenced employment laws authorizes an action
10 ELGIN v. DEPARTMENT OF TREASURY
Opinion of the Court
in federal district court. See 42 U. S. C. §2000e–5(f); 29
U. S. C. §633a(c); §216(b). Title 5 U. S. C. §7703(b)(2)
demonstrates that Congress knew how to provide alterna-
tive forums for judicial review based on the nature of an
employee’s claim. That Congress declined to include an
exemption from Federal Circuit review for challenges to
a statute’s constitutionality indicates that Congress in-
tended no such exception.
B
The purpose of the CSRA also supports our conclusion
that the statutory review scheme is exclusive, even for
employees who bring constitutional challenges to federal
statutes. As we have previously explained, the CSRA’s
“integrated scheme of administrative and judicial review”
for aggrieved federal employees was designed to replace
an “ ‘outdated patchwork of statutes and rules’ ” that af-
forded employees the right to challenge employing agency
actions in district courts across the country. Fausto, 484
U. S., at 444–445. Such widespread judicial review, which
included appeals in all of the Federal Courts of Appeals
produced “wide variations in the kinds of decisions . . .
issued on the same or similar matters” and a double layer
of judicial review that was “wasteful and irrational.” Id.,
at 445 (internal quotation marks omitted).
The CSRA’s objective of creating an integrated scheme
of review would be seriously undermined if, as petitioners
would have it, a covered employee could challenge a cov-
ered employment action first in a district court, and then
again in one of the courts of appeals, simply by alleging
that the statutory authorization for such action is uncon-
stitutional. Such suits would reintroduce the very po-
tential for inconsistent decisionmaking and duplicative
judicial review that the CSRA was designed to avoid.
Moreover, petitioners’ position would create the possibility
of parallel litigation regarding the same agency action
Cite as: 567 U. S. ____ (2012) 11
Opinion of the Court
before the MSPB and a district court. An employee could
challenge the constitutionality of the statute authorizing
an agency’s action in district court, but the MSPB would
remain the exclusive forum for other types of challenges to
the agency’s decision. See Tr. of Oral Arg. 4–7, 9, 15–16.
Petitioners counter that doctrines regarding claim split-
ting and preclusion would bar parallel suits before the
MSPB and the district court. But such doctrines would
not invariably eliminate the possibility of simultaneous
proceedings, for a tribunal generally has discretion to
decide whether to dismiss a suit when a similar suit is
pending elsewhere. See 18 C. Wright et al., Federal Prac-
tice and Procedure §4406 (2d ed. 2002 and Supp. 2011). In
any event, petitioners point to nothing in the CSRA to
support the odd notion that Congress intended to allow
employees to pursue constitutional claims in district court
at the cost of forgoing other, potentially meritorious claims
before the MSPB.
Finally, we note that a jurisdictional rule based on the
nature of an employee’s constitutional claim would deprive
the aggrieved employee, the MSPB, and the district court
of clear guidance about the proper forum for the employ-
ee’s claims at the outset of the case. For example, peti-
tioners contend that facial and as-applied constitutional
challenges to statutes may be brought in district court,
while other constitutional challenges must be heard by the
MSPB. See supra, at 8–9; infra, at 13, n. 5. But, as we
explain below, that line is hazy at best and incoherent at
worst. See ibid. The dissent’s approach fares no better.
The dissent carves out for district court adjudication only
facial constitutional challenges to statutes, but we have
previously stated that “the distinction between facial and
as-applied challenges is not so well defined that it has
some automatic effect or that it must always control the
pleadings and disposition in every case involving a consti-
tutional challenge.” Citizens United v. Federal Election
12 ELGIN v. DEPARTMENT OF TREASURY
Opinion of the Court
Comm’n, 558 U. S. ___, ___ (2010) (slip op., at 14). By
contrast, a jurisdictional rule based on the type of em-
ployee and adverse agency action at issue does not involve
such amorphous distinctions. Accordingly, we conclude
that the better interpretation of the CSRA is that its
exclusivity does not turn on the constitutional nature of an
employee’s claim, but rather on the type of the employee
and the challenged employment action.
V
Petitioners raise three additional factors in arguing that
their claims are not the type that Congress intended to be
reviewed within the CSRA scheme. Specifically, petition-
ers invoke our “presum[ption] that Congress does not
intend to limit [district court] jurisdiction if ‘a finding
of preclusion could foreclose all meaningful judicial re-
view’; if the suit is ‘wholly collateral to a statute’s review
provisions’; and if the claims are ‘outside the agency’s
expertise.’ ” Free Enterprise Fund v. Public Company
Accounting Oversight Bd., 561 U. S. ___, ___ (2010) (slip
op., at 8) (quoting Thunder Basin, 510 U. S., at 212–213).
Contrary to petitioners’ suggestion, none of those charac-
teristics are present here.
A
First, petitioners argue that the CSRA review scheme
provides no meaningful review of their claims because the
MSPB lacks authority to declare a federal statute un-
constitutional. Petitioners are correct that the MSPB
has repeatedly refused to pass upon the constitutionality of
legislation. See, e.g., Malone v. Department of Justice, 13
M. S. P. B. 81, 83 (1983) (“[I]t is well settled that adminis-
trative agencies are without authority to determine the
constitutionality of statutes”). This Court has also stated
that “adjudication of the constitutionality of congressional
enactments has generally been thought beyond the juris-
Cite as: 567 U. S. ____ (2012) 13
Opinion of the Court
diction of administrative agencies.” Thunder Basin, 510
U. S., at 215 (internal quotation marks and brackets
omitted).5
We need not, and do not, decide whether the MSPB’s
view of its power is correct, or whether the oft-stated
principle that agencies cannot declare a statute unconsti-
tutional is truly a matter of jurisdiction. See ibid. (de-
scribing this rule as “not mandatory”). In Thunder Basin,
we held that Congress’ intent to preclude district court
jurisdiction was fairly discernible in the statutory scheme
“[e]ven if ” the administrative body could not decide the
constitutionality of a federal law. Ibid. That issue, we
reasoned, could be “meaningfully addressed in the Court
of Appeals” that Congress had authorized to conduct
judicial review. Ibid.6 Likewise, the CSRA provides re-
——————
5 According to petitioners, the MSPB can decide claims that an
agency violated an employee’s First or Fourth Amendment rights (and
those claims consequently must be brought within the CSRA scheme),
supra, at 8–9, because such claims allege only that an agency “acted in
an unconstitutional manner” and do not challenge the constitutionality
of a federal statute either facially or as applied. See Tr. of Oral Arg. 10,
21. That distinction is dubious at best. Agencies are created by and act
pursuant to statutes. Thus, unless an action is beyond the scope of
the agency’s statutory authority, an employee’s claim that the agency
“acted in an unconstitutional manner” will generally be a claim that the
statute authorizing the agency action was unconstitutionally applied to
him. See, e.g., Pickering v. Board of Ed. of Township High School
Dist. 205, Will Cty., 391 U. S. 563, 565 (1968) (holding that the statute
authorizing a government employee’s termination was unconstitutional
as applied under the First and Fourteenth Amendments where the
employee was fired because of his speech). In any event, the curious
line that petitioners draw only highlights the weakness of their posi-
tion, for it certainly is not “fairly discernible” from the CSRA’s text,
structure, or purpose that the statutory review scheme is exclusive for
so-called “unconstitutional manner” claims but not for facial or as-
applied constitutional challenges to statutes. See supra, at 7–11.
6 The dissent misreads Thunder Basin. The dissent contends that the
“heart of the preclusion analysis” in Thunder Basin involved statutory
claims reviewable by the administrative body and that the “only consti-
14 ELGIN v. DEPARTMENT OF TREASURY
Opinion of the Court
view in the Federal Circuit, an Article III court fully com-
petent to adjudicate petitioners’ claims that Section 3328
and the Military Selective Service Act’s registration re-
quirement are unconstitutional.
Petitioners insist, however, that the Federal Circuit
cannot decide their constitutional claims either. Empha-
sizing the Federal Circuit’s holdings that its jurisdiction
over employee appeals is coextensive with the MSPB’s
jurisdiction, petitioners argue that the Federal Circuit
likewise lacks jurisdiction to decide their challenge to
the constitutionality of a federal statute. Petitioners are
incorrect.
As we have explained, the CSRA makes MSPB jurisdic-
tion over an appeal dependent only on the nature of the
employee and the employment action at issue. See supra,
at 1–2, 8–9; see also 5 CFR §1201.3(a) (stating that “[t]he
Board has jurisdiction over appeals from agency actions”
and enumerating covered actions); Todd v. Merit Systems
Protection Bd., 55 F. 3d 1574, 1576 (CA Fed. 1995) (ex-
plaining that the employee “has the burden of establishing
that she and the action she seeks to appeal [are] within
the [MSPB’s] jurisdiction”). Accordingly, as the cases cited
by petitioners demonstrate, the Federal Circuit has ques-
——————
tutional issue” was decided by this Court “ ‘not on preclusion grounds
but on the merits.’ ” Post, at 10 (opinion of ALITO, J.) (quoting 510 U. S.,
at 219 (SCALIA, J., concurring in part and concurring in judgment)). To
be sure, the Thunder Basin Court did decide the merits of the petition-
er’s “second constitutional challenge,” namely whether the Court’s
finding of preclusion was itself unconstitutional. See i.d., at 219–221,
and n. (same); see also id., at 216 (describing this “alternative” argu-
ment). But the petitioner’s suit also included another constitutional
claim: a due process challenge to a statute that permitted a regulatory
agency, before a hearing, to immediately fine the petitioner for non-
compliance with the statute. See Brief for Petitioner in Thunder Basin
Coal Co. v. Reich, O. T. 1993, No. 92–896, p. 13. The Court expressly
found that the statutory review scheme precluded district court juris-
diction over that constitutional claim. See 510 U. S., at 214‒216.
Cite as: 567 U. S. ____ (2012) 15
Opinion of the Court
tioned its jurisdiction when an employee appeals from a
type of adverse action over which the MSPB lacked juris-
diction.7 But the Federal Circuit has never held, in an
appeal from agency action within the MSPB’s jurisdiction,
that its authority to decide particular legal questions is
derivative of the MSPB’s authority. To the contrary, in
Briggs v. MSPB, 331 F. 3d 1307, 1312–1313 (2003), the
Federal Circuit concluded that it could determine the
constitutionality of a statute upon which an employee’s
removal was based, notwithstanding the MSPB’s pro-
fessed lack of authority to decide the question.8
Petitioners next contend that even if the Federal Circuit
could consider their claims in the first instance, resolution
of the claims requires a factual record that neither the
MSPB (because it lacks authority to decide the legal ques-
tion) nor the Federal Circuit (because it is an appellate
court) can create. To the contrary, we think the CSRA
review scheme fully accommodates an employee’s poten-
tial need to establish facts relevant to his constitutional
——————
7 See Schmittling v. Department of Army, 219 F. 3d 1332, 1336 (CA
Fed. 2000) (remanding for MSPB to determine if employee suffered a
prohibited personnel action within the scope of its jurisdiction); Perez v.
MSPB, 931 F. 2d 853, 855 (CA Fed. 1991) (action against employee was
not suspension within MSPB’s jurisdiction); Manning v. MSPB, 742
F. 2d 1424, 1425–1427 (CA Fed. 1984) (reassignment of employee was
not an adverse action within MSPB’s jurisdiction); Rosano v. Depart-
ment of Navy, 699 F. 2d 1315 (CA Fed. 1983) (refusal to prorate em-
ployee’s health insurance premiums was not an adverse action within
MSPB’s jurisdiction).
8 It is not unusual for an appellate court reviewing the decision of
an administrative agency to consider a constitutional challenge to a
federal statute that the agency concluded it lacked authority to decide.
See, e.g., Preseault v. ICC, 853 F. 2d 145, 148–149 (CA2 1988) (provi-
sion of the National Trails System Act Amendments of 1983), aff ’d on
other grounds, 494 U. S. 1 (1990); Reid v. Engen, 765 F. 2d 1457, 1460–
1461 (CA9 1985) (provision of the Federal Aviation Act of 1958);
Chadha v. INS, 634 F. 2d 408, 411, 413 (CA9 1980) (provision of the
Immigration and Nationality Act), aff ’d, 462 U. S. 919 (1983).
16 ELGIN v. DEPARTMENT OF TREASURY
Opinion of the Court
challenge to a federal statute. Even without factfinding
capabilities, the Federal Circuit may take judicial notice of
facts relevant to the constitutional question. See, e.g.,
Rothe Development Corp. v. Department of Defense, 545
F. 3d 1023, 1045–1046 (CA Fed. 2008) (judicially noticing
facts relevant to equal protection challenge). And, if reso-
lution of a constitutional claim requires the development
of facts beyond those that the Federal Circuit may judi-
cially notice, the CSRA empowers the MSPB to take evi-
dence and find facts for Federal Circuit review. See 5
U. S. C. §§1204(b)(1)–(2) (providing that the MSPB may
administer oaths, examine witnesses, take depositions,
issue interrogatories, subpoena testimony and documents,
and otherwise receive evidence when a covered employee
appeals a covered adverse employment action). Unlike
petitioners, we see nothing extraordinary in a statutory
scheme that vests reviewable factfinding authority in a
non-Article III entity that has jurisdiction over an action
but cannot finally decide the legal question to which the
facts pertain. Congress has authorized magistrate judges,
for example, to conduct evidentiary hearings and make
findings of fact relevant to dispositive pretrial motions,
although they are powerless to issue a final ruling on such
motions. See 28 U. S. C. §§636(b)(1)(A)–(B); United States
v. Raddatz, 447 U. S. 667, 673 (1980).9
——————
9 The dissent argues that the MSPB may struggle to determine what
facts are relevant to the constitutional question, given that it will not
decide the claim. See post, at 11. But the MSPB’s professed lack of
authority to declare a statute unconstitutional does not mean that the
MSPB cannot identify the legal principles that govern the constitu-
tional analysis and thus the scope of necessary development of the fac-
tual record. The MSPB routinely identifies the relevant constitutional
framework from federal court decisions when deciding other constitu-
tional claims. See supra, at 8–9 (citing First and Fourth Amendment
cases); see also, e.g., Fitzgerald v. Department of Defense, 80 MSPR 1,
14–15 (1998) (analyzing a claim under the Due Process Clauses of the
Fifth and Fourteenth Amendments). We therefore see little reason to
Cite as: 567 U. S. ____ (2012) 17
Opinion of the Court
Petitioners nonetheless insist that the MSPB will never
reach the factfinding stage in an appeal challenging the
constitutionality of a federal statute, pointing to the ALJ’s
dismissal for lack of jurisdiction in petitioner Elgin’s case.
Again, petitioners are incorrect. When a covered employee
appeals a covered adverse action, the CSRA grants the
MSPB jurisdiction over the appeal. See supra, at 14. If
the employee attacks the adverse action on the ground
that a statute is unconstitutional, the MSPB may deter-
mine that it lacks authority to decide that particular issue;
but absent another infirmity in the adverse action, the
MSPB will affirm the employing agency’s decision rather
than dismiss the appeal. See, e.g., Briggs, supra, at 1311.
The Federal Circuit can then review the MSPB decision,
including any factual record developed by the MSPB in the
course of its decision on the merits.
Contrary to petitioners’ suggestion, Elgin’s case does not
illustrate that the MSPB will invariably dismiss an appeal
challenging the constitutionality of a federal statute before
reaching the factfinding stage. The ALJ dismissed Elgin’s
case on the threshold jurisdictional ground that he was
not an “employee” with a right to appeal to the MSPB
because his employment was absolutely barred by statute.
See App. to Pet. for Cert. 100a–101a. The Government
conceded before the First Circuit that this jurisdictional
argument was incorrect, see Brief for United States 10,
and the Court of Appeals agreed, see 641 F. 3d, at 10–11.
The parties do not raise that issue here, and we do not
address it. What matters for present purposes is that the
particular circumstances of Elgin’s case do not demon-
strate that the MSPB will dismiss an appeal that is oth-
erwise within its jurisdiction merely because it lacks the
——————
credit the dissent’s prediction that our holding will result in a compli-
cated back and forth between a befuddled MSPB and the Federal
Circuit.
18 ELGIN v. DEPARTMENT OF TREASURY
Opinion of the Court
authority to decide a particular claim.10
In sum, the CSRA grants the MSPB and the Federal
Circuit jurisdiction over petitioners’ appeal because they
are covered employees challenging a covered adverse
employment action. Within the CSRA review scheme, the
Federal Circuit has authority to consider and decide peti-
tioners’ constitutional claims. To the extent such chal-
lenges require factual development, the CSRA equips the
MSPB with tools to create the necessary record. Thus,
petitioners’ constitutional claims can receive meaningful
review within the CSRA scheme.11
B
Petitioners next contend that the CSRA does not pre-
clude district court jurisdiction over their claims because
they are “wholly collateral” to the CSRA scheme. Accord-
ing to petitioners, their bill-of-attainder and sex discrimi-
nation claims “have nothing to do with the types of day-to-
day personnel actions adjudicated by the MSPB,” Brief for
Petitioners 29, and petitioners “are not seeking the
CSRA’s ‘protections and remedies.’ ” Reply Brief for Peti-
tioners 3. We disagree.
——————
10 Before this Court, the Government again conceded the error of its
argument that Elgin is not an “employee” within the MSPB’s jurisdic-
tion and indicated that it would support a motion by Elgin to reopen his
case before the MSPB. See Tr. of Oral Arg. 32.
11 The dissent cites McNary v. Haitian Refugee Center, Inc., 498 U. S.
479 (1991), for the “basic principle,” post, at 8, that preclusion cannot be
inferred when “ ‘the administrative appeals process does not address
the kind of . . . constitutional claims’ at issue.” See post, at 7–8 (quoting
McNary, 498 U. S., at 493). But that statement from McNary was not a
reference to an administrative body’s inability to decide a constitutional
claim. Rather, McNary was addressing a statutory review scheme that
provided no opportunity for the plaintiffs to develop a factual record
relevant to their constitutional claims before the administrative body
and then restricted judicial review to the administrative record created
in the first instance. Ibid. As we have explained, the CSRA review
process is not similarly limited. See supra, at 15.
Cite as: 567 U. S. ____ (2012) 19
Opinion of the Court
As evidenced by their district court complaint, petition-
ers’ constitutional claims are the vehicle by which they
seek to reverse the removal decisions, to return to federal
employment, and to receive the compensation they would
have earned but for the adverse employment action. See
App. 29–30. A challenge to removal is precisely the type of
personnel action regularly adjudicated by the MSPB and
the Federal Circuit within the CSRA scheme. Likewise,
reinstatement, backpay, and attorney’s fees are precisely
the kinds of relief that the CSRA empowers the MSPB and
the Federal Circuit to provide. See supra, at 2; see also
Heckler v. Ringer, 466 U. S. 602, 614 (1984) (holding that
plaintiffs’ claims were not wholly collateral to a statutory
scheme of administrative and judicial review of Medicare
payment decisions, where plaintiffs’ constitutional and
statutory challenge to an agency’s procedure for reaching
payment decisions was “at bottom” an attempt to reverse
the agency’s decision to deny payment). Far from a suit
wholly collateral to the CSRA scheme, the case before us is
a challenge to CSRA-covered employment action brought
by CSRA-covered employees requesting relief that the
CSRA routinely affords.
C
Relatedly, petitioners argue that their constitutional
claims are not the sort that Congress intended to channel
through the MSPB because they are outside the MSPB’s
expertise. But petitioners overlook the many threshold
questions that may accompany a constitutional claim and
to which the MSPB can apply its expertise. Of particular
relevance here, preliminary questions unique to the em-
ployment context may obviate the need to address the
constitutional challenge. For example, petitioner Henry
Tucker asserts that his resignation amounted to a con-
structive discharge. That issue falls squarely within the
MSPB’s expertise, and its resolution against Tucker would
20 ELGIN v. DEPARTMENT OF TREASURY
Opinion of the Court
avoid the need to reach his constitutional claims. In addi-
tion, the challenged statute may be one that the MSPB
regularly construes, and its statutory interpretation could
alleviate constitutional concerns. Or, an employee’s ap-
peal may involve other statutory or constitutional claims
that the MSPB routinely considers, in addition to a consti-
tutional challenge to a federal statute. The MSPB’s reso-
lution of those claims in the employee’s favor might fully
dispose of the case. Thus, because the MSPB’s expertise
can otherwise be “brought to bear” on employee appeals
that challenge the constitutionality of a statute, we see no
reason to conclude that Congress intended to exempt such
claims from exclusive review before the MSPB and the
Federal Circuit. See Thunder Basin, 510 U. S., at 214–
215 (concluding that, where administrative Commission’s
expertise “could be brought to bear” on appeal, Commis-
sion’s exclusive review of alleged statutory violation was
appropriate despite its lack of expertise in interpreting a
particular statute (internal quotation marks and brackets
omitted)).
* * *
For the foregoing reasons, we conclude that it is fairly
discernible that the CSRA review scheme was intended to
preclude district court jurisdiction over petitioners’ claims.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Cite as: 567 U. S. ____ (2012) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–45
_________________
MICHAEL B. ELGIN, ET AL., PETITIONERS v. DEPART-
MENT OF THE TREASURY ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[June 11, 2012]
JUSTICE ALITO, with whom JUSTICE GINSBURG and
JUSTICE KAGAN join, dissenting.
Petitioners are former federal employees who were
discharged for failing to register for the military draft as
required under 5 U. S. C. §3328. They filed a putative
class-action suit in Federal District Court, arguing that
the registration requirement is facially unconstitutional
because it discriminates on the basis of gender and oper-
ates as a bill of attainder. Their complaint sought back-
pay as well as declaratory and injunctive relief reinstating
their employment and preventing the Government from
enforcing §3328 against them.
The Court affirms the dismissal of petitioners’ suit on
the ground that the Civil Service Reform Act (CSRA)
provides an exclusive administrative remedy for claims of
wrongful termination brought by covered federal employ-
ees. Because the CSRA provides an avenue for employees
to pursue their grievances through the Merit Systems
Protection Board, the majority concludes, Congress must
have intended to remove petitioners’ claims from the
ordinary ambit of the federal courts.
The problem with the majority’s reasoning is that peti-
tioners’ constitutional claims are a far cry from the type of
claim that Congress intended to channel through the
Board. The Board’s mission is to adjudicate fact-specific
2 ELGIN v. DEPARTMENT OF TREASURY
ALITO, J., dissenting
employment disputes within the existing statutory frame-
work. By contrast, petitioners argue that one key provi-
sion of that framework is facially unconstitutional. Not
only does the Board lack authority to adjudicate facial
constitutional challenges, but such challenges are wholly
collateral to the type of claims that the Board is author-
ized to hear.
The majority attempts to defend its holding by noting
that, although the Board cannot consider petitioners’
claims, petitioners may appeal from the Board to the
Federal Circuit, which does have authority to address
facial constitutional claims. But that does not cure the
oddity of requiring such claims to be filed initially before
the Board, which can do nothing but pass them along
unaddressed, leaving the Federal Circuit to act as a court
of first review, but with little capacity for factfinding.
Because I doubt that Congress intended to channel
petitioners’ constitutional claims into an administrative
tribunal that is powerless to decide them, I respectfully
dissent.
I
As a general matter, federal district courts have “origi-
nal jurisdiction of all civil actions arising under the Con-
stitution, laws, or treaties of the United States.” 28
U. S. C. §1331. Under this provision, it has long been
“established practice for this Court to sustain the jurisdic-
tion of federal courts to issue injunctions to protect rights
safeguarded by the Constitution.” Bell v. Hood, 327 U. S.
678, 684 (1946). In light of §1331, the question is not
whether Congress has specifically conferred jurisdiction,
but whether it has taken it away. See Whitman v. De-
partment of Transportation, 547 U. S. 512, 514 (2006)
(per curiam).
Congress may remove certain claims from the general
jurisdiction of the federal courts in order to channel these
Cite as: 567 U. S. ____ (2012) 3
ALITO, J., dissenting
claims into a system of statutory review. For example, in
Shalala v. Illinois Council on Long Term Care, Inc., 529
U. S. 1 (2000), we considered a clause providing that “no
action . . . to recover on any claim” arising under the Medi-
care laws “shall be brought under section 1331 . . . of title
28,” id., at 5 (quoting 42 U. S. C. §405(h) (brackets omit-
ted)). When dealing with an express preclusion clause like
this, we determine the scope of preclusion simply by inter-
preting the words Congress has chosen.
We have also recognized that preclusion can be implied.
When Congress creates an administrative process to han-
dle certain types of claims, it impliedly removes those
claims from the ordinary jurisdiction of the federal courts.
Under these circumstances, the test is whether “the ‘statu-
tory scheme’ displays a ‘fairly discernible’ intent to limit jur-
isdiction and the claims at issue ‘are of the type Congress
intended to be reviewed within th[e] statutory structure.’ ”
Free Enterprise Fund v. Public Company Accounting
Oversight Bd., 561 U. S. ___, ___ (2010) (slip op., at 8)
(quoting Thunder Basin Coal Co. v. Reich, 510 U. S. 200,
207, 212 (1994); alteration in Free Enterprise). In making
this determination, we look to “the statute’s language,
structure, and purpose, its legislative history, and whether
the claims can be afforded meaningful review” through
the alternative administrative process that Congress
has established. Thunder Basin, supra, at 207 (citation
omitted).
We have emphasized two important factors for deter-
mining whether Congress intended an agency to have
exclusive original jurisdiction over a claim. The first is
whether the claim falls within the agency’s area of ex-
pertise, which would give the agency a comparative ad-
vantage over the courts in resolving the claim. “Generally,
when Congress creates procedures ‘designed to permit
agency expertise to be brought to bear on particular prob-
lems,’ those procedures ‘are to be exclusive.’ ” Free Enter-
4 ELGIN v. DEPARTMENT OF TREASURY
ALITO, J., dissenting
prise Fund, supra, at ___(slip op., at 8) (quoting Whitney
Nat. Bank in Jefferson Parish v. Bank of New Orleans &
Trust Co., 379 U. S. 411, 420 (1965)).
Second, even if a claim would not benefit from agency
expertise, we nonetheless consider whether the claim is le-
gally or factually related to the type of dispute the agency
is authorized to hear. If so, the claim may be channeled
through the administrative process to guard against
claim-splitting, which could involve redundant analysis of
overlapping issues of law and fact. But for claims that fall
outside the agency’s expertise and are “wholly collateral”
to the type of dispute the agency is authorized to hear, the
interest in requiring unified administrative review is
considerably reduced. Thunder Basin, supra, at 212 (in-
ternal quotation marks omitted); see also Free Enterprise
Fund, supra, at ___ – ___ (slip op., at 8–10).
II
The CSRA was enacted to “provide the people of the
United States with a competent, honest, and productive
Federal work force reflective of the Nation’s diversity, and
to improve the quality of public service.” §3(1), 92 Stat.
1112. To that end, the Act created an “integrated scheme
of administrative and judicial review [of personnel ac-
tions], designed to balance the legitimate interests of the
various categories of federal employees with the needs of
sound and efficient administration.” United States v.
Fausto, 484 U. S. 439, 445 (1988).
Chapter 75 of Title 5 sets forth detailed procedures for
adverse actions taken against certain covered employees
“for such cause as will promote the efficiency of the ser-
vice.” 5 U. S. C. §7513(a). When an agency takes such an
action, it must provide the employee with advance written
notice of the action and the specific reasons for it, give the
employee an opportunity to respond, allow the employee to
be represented by an attorney, and provide the employee
Cite as: 567 U. S. ____ (2012) 5
ALITO, J., dissenting
with a final written decision. See §§7513(b)(1)–(4). Fol-
lowing these internal agency procedures, an aggrieved
employee may appeal to the Merit Systems Protection
Board. §7513(d).
The Board’s mission is “to ensure that Federal employ-
ees are protected against abuses by agency management,
that Executive branch agencies make employment deci-
sions in accordance with the merit system principles, and
that Federal merit systems are kept free of prohibited
personnel practices.” Merit Systems Protection Board, An
Introduction to the Merit Systems Protection Board 5
(1999). The Board adjudicates employment disputes in
accordance with applicable federal laws and regulations,
including the “[m]erit system principles” and “[p]rohibited
personnel principles” identified in §§2301, 2302. After
the Board renders a decision, the United States Court of
Appeals for the Federal Circuit has exclusive jurisdiction
on appeal. See §§7703(a)(1), (b)(1); 28 U. S. C. §1295(a)(9).
The parties agree that petitioners are covered employees
who may file an appeal to the Board protesting their re-
moval from federal employment. The parties also agree,
however, that the Board lacks authority to adjudicate
claims like those asserted by petitioners, which attack the
validity of a federal statute as a facial matter. As this
Court has noted, “[a]djudication of the constitutionality
of congressional enactments has generally been thought
beyond the jurisdiction of administrative agencies.” Thun-
der Basin, supra, at 214 (alteration in original; inter-
nal quotation marks omitted). The Board itself has
consistently taken the position that it lacks “authority to
determine the constitutionality of statutes.” Malone v.
Department of Justice, 14 MSPR 403, 406 (1983) (citing
Montana Ch. of Assn. of Civilian Technicians, Inc. v.
Young, 514 F. 2d 1165, 1167 (CA9 1975)). Thus, the
Board’s own self-described role in the administrative
process is simply to apply the relevant statutes as written,
6 ELGIN v. DEPARTMENT OF TREASURY
ALITO, J., dissenting
without addressing any facial challenges to the validity of
those statutes.
III
There is no basis for the majority’s conclusion that
petitioners must file their constitutional challenges be-
fore the Board instead of a federal district court. Congress
has not expressly curtailed the jurisdiction of the federal
courts to consider facial constitutional claims relating to
federal employment, and no such limitation can be fairly
discerned from the CSRA. Not only are petitioners’ claims
“wholly collateral to [the CSRA’s] review provisions and
outside the agency’s expertise,” Thunder Basin, 510 U. S.,
at 212 (internal quotation marks omitted), but the Board
itself admits that it is completely powerless to consider the
merits of petitioners’ arguments. In short, neither effi-
ciency nor agency expertise can explain why Congress
would want the Board to have exclusive jurisdiction over
claims like these. To the contrary, imposing a scheme of
exclusive administrative review in this context breeds
inefficiency and creates a procedural framework that is
needlessly vexing.
A
Petitioners argue that registration for the military
draft violates the Equal Protection and Bill of Attainder
Clauses. These facial constitutional arguments are entirely
outside the Board’s power to decide, and they do not re-
motely implicate the Board’s administrative expertise.
They have nothing to do with the statutory rules of federal
employment, and nothing to do with any application of the
“merit system principles” or the “prohibited personnel
practices” that the Board administers.
Petitioners’ constitutional claims also have no relation
to any of the facts that might be relevant to a proceeding
before the Board. The Board typically addresses factual
Cite as: 567 U. S. ____ (2012) 7
ALITO, J., dissenting
issues pertaining to the specific circumstances in which
employee grievances arise. For example: Why was a
particular employee removed from federal employment?
Does the employer have a sound, nonprohibited basis for
the employment action in question? See, e.g., Davis v.
Department of Veterans Affairs, 106 MSPR 654, 657–658
(2007).
By contrast, petitioners’ claims involve general factual
issues pertaining to the facial constitutionality of the
military draft. The equal protection question is whether
men and women are sufficiently different to justify dispar-
ate treatment under the Selective Service Act. Rostker v.
Goldberg, 453 U. S. 57, 78 (1981). The factual record that
petitioners wish to develop would address issues of gender
difference that might be considered relevant to military
service. See Brief for Petitioners 48 (alleging that “wom-
en’s role in the military has changed dramatically in the
past thirty years”). Likewise, under the Bill of Attainder
Clause, the key question is whether requiring draft regis-
tration as a condition of federal employment amounts to
the singling out of a particular person or group for pun-
ishment without trial. See Nixon v. Administrator of
General Services, 433 U. S. 425, 468–469. Whatever the
relevant facts may be on either claim, it is clear that they
can have no conceivable bearing on any matter the Board
is authorized to address.
B
Administrative agencies typically do not adjudicate
facial constitutional challenges to the laws that they ad-
minister. Such challenges not only lie outside the realm of
special agency expertise, but they are also wholly collat-
eral to other types of claims that the agency is empowered
to consider. When “the administrative appeals process
does not address the kind of . . . constitutional claims” at
issue, we cannot infer that Congress intended to “limit[t]
8 ELGIN v. DEPARTMENT OF TREASURY
ALITO, J., dissenting
judicial review of these claims to the procedures set forth
in [the statutory scheme].” McNary v. Haitian Refugee
Center, Inc., 498 U. S. 479, 493 (1991).
Several other cases confirm this basic principle. In Free
Enterprise Fund, for example, the plaintiffs were not
required to pursue their constitutional claims through the
Public Accounting Company Oversight Board, because
they were challenging the very existence of the Board it-
self. 561 U. S., at ___ – ___ (slip op., at 8–10). Likewise,
in Johnson v. Robison, 415 U. S. 361, 373–374 (1974).
Where petitioners brought claims “challenging the consti-
tutionality of laws providing benefits,” the Court held that
these claims were not precluded by a statute creating
exclusive administrative review over how those benefits
were administered. And in Mathews v. Eldridge, 424 U. S.
319, 327–332 (1976), we held that although a party chal-
lenging the denial of statutory benefits was generally
required to proceed through the statutory process of ad-
ministrative review, a constitutional challenge to the ad-
ministrative process itself could still be brought directly
in federal court.
The present case follows the same pattern: Petitioners
are challenging the facial validity of a law that the Board
is bound to apply to them, and so it makes little sense for
them to seek review before the Board.
The wholly collateral nature of petitioners’ claims
makes them readily distinguishable from claims that this
Court has held to be impliedly excluded from the original
jurisdiction of the federal courts. In Fausto, for example,
we held that the CSRA precluded a statutory Back Pay
Act claim involving a dispute over whether an employee
had engaged in unauthorized use of a Government vehicle.
484 U. S., at 455. The plaintiff in that case did not chal-
lenge the constitutional validity of the applicable legal
framework, but argued instead that the framework had
been improperly applied to him. He argued that he had
Cite as: 567 U. S. ____ (2012) 9
ALITO, J., dissenting
been wrongfully suspended from work, and that he was
entitled to backpay as a result. Id., at 440. For that type
of fact-specific personnel dispute, we determined, Con-
gress had intended for the CSRA’s comprehensive admin-
istrative scheme to provide the exclusive avenue of relief.
Id., at 455.
Similarly, in Bush v. Lucas, 462 U. S. 367 (1983), we
declined to allow a claim under Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U. S. 388 (1971), brought by an
employee seeking money damages for an alleged “retalia-
tory demotion or discharge because he ha[d] exercised his
First Amendment rights.” 462 U. S., at 381. Although
the claim was constitutional in nature, we noted that it
“ar[o]se out of an employment relationship that is gov-
erned by comprehensive procedural and substantive provi-
sions” that had been enacted by Congress. Id., at 368.
The employee was pursuing an as-applied challenge that
depended on the case-specific facts of why he had been
fired. The gravamen of the employee’s claim was that he
had been “unfairly disciplined for making critical com-
ments about [his agency].” Id., at 386. Under the statu-
tory scheme that Congress had created, the employee could
have pursued a very similar statutory claim for wrongful
removal within the administrative process. Id., at 386–
388. Under these circumstances, we found that Congress
did not intend to allow a duplicative nonstatutory claim
for damages based on the same set of underlying facts.
Finally, the majority’s reliance on Thunder Basin is
entirely misplaced. See ante, at 13. In that case, we
found that a statutory scheme impliedly precluded a
pre-enforcement challenge brought by a mining company
seeking to enjoin an order issued by the Mine Safety and
Health Administration. 510 U. S., at 205. Importantly,
the plaintiff company was seeking review of purely statu-
tory claims that were reviewable in the first instance by
the administrative commission that Congress had estab-
10 ELGIN v. DEPARTMENT OF TREASURY
ALITO, J., dissenting
lished. The only constitutional issue was a matter of
timing: The company argued that it had a due process
right to immediate judicial review of its statutory claims,
because it would suffer irreparable harm if it were forced
to wait until after the agency initiated an enforcement
action. Ibid. The Court disagreed, holding that the statu-
tory scheme was “consistent with due process” even
though it provided for only postenforcement review. Id.,
at 218. Thus, the Court rejected the company’s constitu-
tional claim “not on preclusion grounds but on the merits.”
Id., at 219 (SCALIA, J., concurring in part and concurring
in judgment). The heart of the preclusion analysis was
that the company could not use a preenforcement chal-
lenge to obtain judicial review of statutory claims that
Congress had clearly intended to channel into administra-
tive review.*
C
By requiring facial constitutional claims to be filed
before the Board, the majority’s holding sets up an odd
sequence of procedural hoops for petitioners to jump
——————
* The majority contends that the petitioner in Thunder Basin really
had two distinct constitutional claims. The primary constitutional
claim was a “due process challenge to a statute that permitted a regula-
tory agency, before a hearing, to immediately fine the petitioner for
noncompliance with the statute.” Ante, at 14, n. 6. On top of this,
according to the majority, the petitioner also had a separate constitu-
tional claim, which asserted that precluding initial judicial review of
the first constitutional claim would violate due process. In the major-
ity’s view, only the latter claim was rejected on the merits. But this
hairsplitting makes no difference. The entire thrust of the petitioner’s
constitutional argument was simply that proceeding through the stat-
utory scheme would make meaningful judicial review impossible.
The Court rejected that argument, effectively disposing of any constitu-
tional infirmity that the petitioner alleged. Unlike in the present case,
there was no freestanding constitutional claim attacking the validity
of the statutory framework on substantive rather than procedural
grounds.
Cite as: 567 U. S. ____ (2012) 11
ALITO, J., dissenting
through. As the Government concedes, the Board is pow-
erless to adjudicate facial constitutional claims, and so
these claims cannot be addressed on the merits until they
reach the Federal Circuit on appeal. As a result, the
Federal Circuit will be forced to address the claims in the
first instance, without the benefit of any relevant factfind-
ing at the administrative level. This is a strange result,
because “statutes that provide for only a single level of
judicial review in the courts of appeals are traditionally
viewed as warranted only in circumstances where district
court factfinding would unnecessarily duplicate an ade-
quate administrative record.” McNary, 498 U. S., at 497(internal quotation marks omitted).
The Government admits that the absence of first-tier
factfinding might very well result in “the initial record”
being “insufficient to permit meaningful consideration of
a constitutional claim,” but suggests that the court could
always “remand the case to the [Board] for further factual
development.” Brief for Respondents 41. The majority
accepts this solution, ante, at 15, but it is hard to see how
it will work in practice. Without any authority to decide
merits issues, the Board may find it difficult to adjudicate
disputes about the relevancy of evidence sought in discov-
ery. Nor will the Board find it easy to figure out which
facts it must find before sending the case back to the
Federal Circuit.
Even if these problems can be overcome, that will not
resolve the needless complexity of the majority’s approach.
According to the majority, petitioners should file their
claims with the Board, which must then kick the claims
up to the Federal Circuit, which must then remand the
claims back to the Board, which must then develop the
record and send the case back to the Federal Circuit,
which can only then consider the constitutional issues.
To be sure, this might be sufficient to afford “meaningful
review” of petitioners’ claims, ante, at 16–17, but that is
12 ELGIN v. DEPARTMENT OF TREASURY
ALITO, J., dissenting
not the only consideration. The question is whether it
is “fairly discernible” that Congress intended to impose
these pinball procedural requirements instead of permitting
petitioners’ claims to be decided in a regular lawsuit in
federal district court. And why would it? As already
noted, the benefits of preventing claim-splitting are con-
siderably reduced with respect to facial constitutional
claims that are wholly collateral to an administrative
proceeding. Because collateral constitutional claims have
no overlap with the issues of law and fact that will pertain
to the administrative proceeding, allowing the constitu-
tional claims to be adjudicated separately before a district
court does not invite wasteful or duplicative review. It
simply allows the district court to develop the factual
record and then provide a first-tier legal analysis, thereby
enhancing both the quality and efficiency of appellate
review.
To the extent that there is some need to prevent claim-
splitting, that purpose is already served by ordinary prin-
ciples of claim preclusion. Plaintiffs generally must bring
all claims arising out of a common set of facts in a single
lawsuit, and federal district courts have discretion to
enforce that requirement as necessary “to avoid duplica-
tive litigation.” Colorado River Water Conservation Dist.
v. United States, 424 U. S. 800, 817 (1976); Stone v. De-
partment of Aviation, 453 F. 3d 1271, 1278 (CA10 2006)
(“A plaintiff ’s obligation to bring all related claims together
in the same action arises under the common-law rule of
claim preclusion prohibiting the splitting of actions”). See
also 18 C. Wright et al., Federal Practice and Procedure
§4406, p. 40 (2d ed. 2002, Supp. 2011) (discussing “princi-
ples of ‘claim splitting’ that are similar to claim preclusion,
but that do not require prior judgment”). Thus, if an
aggrieved employee goes to a district court with claims
that would duplicate the factfinding or legal analysis of a
separate Board proceeding, the district court would be free
Cite as: 567 U. S. ____ (2012) 13
ALITO, J., dissenting
to dismiss the case.
The majority suggests that its approach will allow the
Board to resolve some cases on nonconstitutional grounds,
thus avoiding needless adjudication of constitutional is-
sues. See ante, at 18. But achieving that goal does not
require the blunt instrument of jurisdictional preclusion.
District courts have broad discretion to manage their
dockets, including the power to refrain from reviewing a
constitutional claim pending adjudication of a nonconsti-
tutional claim that might moot the case. See Kerotest Mfg.
Co. v. C-O-Two Fire Equipment Co., 342 U. S. 180, 183
(1952) (acknowledging the equitable discretion of courts,
in furtherance of “[w]ise judicial administration” and
“conservation of judicial resources,” to stay proceedings to
prevent “two litigations where one will suffice” (internal
quotation marks omitted)). In short, the district courts
are well equipped to guard against piecemeal litigation
without any help from the majority’s holding.
Finally, the majority contends that channeling facial
constitutional claims through the Board is necessary to
provide “clear guidance about the proper forum for the
employee’s claims at the outset of the case.” Ante, at 11.
Because it can be hard to tell the difference between facial
and as-applied challenges, the majority argues, it is less
confusing simply to require that all claims must be
brought before the Board. This is a red herring. Labels
aside, the most sensible rule would be to allow initial
judicial review of constitutional claims that attack the
validity of a statute based on its inherent characteristics,
not as a result of how the statute has been applied. That
line is bright enough, and the distinction is already one
that the Board must draw based on its own determination
that it can hear some as-applied challenges but lacks
“authority to determine the constitutionality of statutes.”
Malone, 14 MSPR, at 406.
14 ELGIN v. DEPARTMENT OF TREASURY
ALITO, J., dissenting
IV
The presumptive power of the federal courts to hear
constitutional challenges is well established. In this case,
however, the majority relies on a very weak set of infer-
ences to strip the courts of their original jurisdiction over
petitioners’ claims. Because I believe Congress would
have been very surprised to learn that it implied this
result when it passed the CSRA, I respectfully dissent.