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Opinion analysis: A brand-new (and “absolutely weird”) theory of judicial review

The following Opinion Analysis is written by Stephen I. Vladeck, Professor of Law at American University Washington College of Law. His teaching and research focus on federal jurisdiction, constitutional law (especially the separation of powers), national security law, and international criminal law.

Since the dawn of the modern administrative state, it has been understood – if not always accepted – that Congress may channel certain legal claims away from the district courts as an original matter and into administrative agencies, with the courts of appeals providing appellate review on the back end.  At its core, this model of judicial review is built on the understanding that, other concerns aside, it is more efficient from virtually every perspective to commit initial (and often fact-intensive) determinations to federal agencies with expertise on the relevant subject-matter, rather than the generalist judges of the federal district courts. To that end, the model is based on two assumptions: that Congress clearly intends to displace the district courts’ jurisdiction in favor of administrative review (lest such review constitute executive arrogation of the legislative and judicial powers); and that the agency tasked with such responsibility is in a position meaningfully to play its role (lest the underlying purpose of the scheme be thwarted).

In its six-to-three decision in Elgin v. Department of the Treasury on Monday, the Supreme Court backtracked from both of those assumptions, appearing to endorse a new theory of administrative review in the process. Whether Elgin is the beginning of a new trend or merely an outlier case about an outlier statute remains to be seen. But if it is the beginning of something new, the (unprecedented) battle lines have certainly been drawn.


As we summarized in our argument preview, Elgin arose out of a 1985 federal statute that categorically bars from federal civil service employment any individual born after 1959 who, despite being required to register for the Selective Service, knowingly and willfully declined to do so. Former government employees who were fired or forced to resign because of the bar sued to enjoin the provision in federal district court, claiming that (1) Section 3328 is an unconstitutional bill of attainder; and (2) it unconstitutionally discriminates on the basis of sex because, thanks to the exclusion of women from the Selective Service, it can only apply to men.

In the Civil Service Reform Act, however, Congress created an alternative procedure for most legal claims arising out of federal civil service employment.  Under the CSRA, “covered” employees may first pursue relief of “covered” claims before a federal agency – the Merit Systems Protection Board (MSPB) – with the Federal Circuit empowered to review adverse decisions thereof. And although the CSRA nowhere provides that such administrative relief is meant to be exclusive, the Supreme Court had previously hinted – and some lower courts had squarely held – that in cases in which such review is available under the CSRA, the removed government employee must first seek review before the MSPB. Complicating matters in Elgin, the MSPB has specifically held (as it did in Elgin’s case) that it lacks the authority to review claims arising out of an “absolute statutory prohibition” to government employment, and the Office of Personnel Management’s internal regulations are to similar effect. In short, the MSPB can’t decide whether a statute barring an entire class of individuals from the civil service is constitutional on its face; it can only decide whether the statute has been applied by government employers consistently with the Constitution and laws of the United States.


Thus, in Elgin, the Court was tasked with answering two distinct, but related, questions: First, does the CSRA in fact displace original actions in the district courts in cases in which it applies? Second, is that true even when, as here, the MSPB lacks the authority to adjudicate the underlying claim?

In an opinion by Justice Thomas, the Court answered both questions in the affirmative. With regard to whether the CSRA displaces district court jurisdiction, the majority began by noting that the question was not whether Congress had provided the clear statement that the Court has typically required in order to displace federal jurisdiction over colorable constitutional claims. Previewing the answer to the second question, the Court explained that, since Congress had merely “channeled” judicial review into the administrative process (rather than foreclosing it altogether), the question for the Court was only whether it was “fairly discernible” from the CSRA that Congress intended such a result. And although the text of the CSRA says nothing at all about displacing other forms of judicial review, the majority reasoned that “[t]he 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 covered employment action first in a district court.” Thus, for the first time, the Elgin Court held that the CSRA’s administrative review process is in fact exclusive in all cases to which it applies – a holding of broad significance for future CSRA litigation, and one that may well prompt Congress (which has already allowed litigants with certain discrimination claims to bypass the Federal Circuit’s jurisdiction in favor of collateral district court litigation) to revisit the issue.

But the far more significant aspect of the majority’s opinion was its answer to the second question – that is, whether litigants could be compelled to bring their constitutional claims before an agency that lacked the power to adjudicate them. Indeed, although the parties agreed that the MSPB could not decide the underlying constitutional claims at issue, the Court ducked the issue, noting only that “[w]e 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 unconstitutional is truly a matter of jurisdiction.” Instead, the Court assumed without deciding that the MSPB lacked such authority, and held that it wouldn’t matter in any event, because the Federal Circuit could exercise plenary review on appeal – even as to the very fact finding justifying administrative review in the first place. As the majority explained,

Even without factfinding capabilities, the Federal Circuit may take judicial notice of facts relevant to the constitutional question. And, if resolution of a constitutional claim requires the development of facts beyond those that the Federal Circuit may judicially notice, the CSRA empowers the MSPB to take evidence and find facts for Federal Circuit review. 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.

Thus, the Court concluded, the Federal Circuit’s jurisdiction on appeal necessarily vitiated any defects in the MSPB’s original administrative authority, along with any argument that the CSRA review scheme deprives plaintiffs like the former government employees in Elgin of their due process right to a judicial forum for resolution of colorable constitutional claims.

Writing for himself and Justices Ginsburg and Kagan (the first dissent featuring this trio), Justice Alito objected to both of the majority’s conclusions. Taking the Court’s second holding first, he criticized the majority for endorsing a scheme in which “petitioners should file their claims with the [MSPB], which must then kick the claims up to the Federal Circuit, which must then remand the claims back to the [MSPB], which must then develop the record and send the case back to the Federal Circuit, which can only then consider the constitutional issues.” Although such judicial review may well satisfy constitutional due process standards, it would be, in Justice Alito’s words, “needlessly vexing.”

For that reason, the dissent continued, it is incredibly difficult to believe that Congress in the CSRA intended such a result, whatever its merits. Thus, even if the first question asked only whether it was “fairly discernible” that Congress meant for administrative review of such constitutional claims to be exclusive, the dissenters would have answered that question in the negative, given the “very weak set of inferences” on which the majority relied to divest the district courts of jurisdiction, inferences that become that much weaker in light of the anomalous judicial review such a displacement would thereby precipitate.


It remains to be seen whether such an approach to administrative review will be endorsed with regard to statutes other than the CSRA – and, if so, whether the Alito-Ginsburg-Kagan trio might become a common lineup in administrative review cases. But if nothing else, the one thing that Monday’s decision drives home is the danger of relying on oral argument as an accurate barometer of the individual Justices’ disposition toward a particular case. After all, Justice Scalia spent much of the February 27 argument in Elgin decrying the government’s position as an “absolutely weird” theory of judicial review. On Monday, he joined the majority opinion embracing such an approach in its entirety, and without comment.

Plain English summary

With a few exceptions, federal law requires all male U.S. citizens between the ages of eighteen and twenty-five to register for the draft. A different federal law bars from the civil service (which encompasses most of the jobs within the executive branch) anyone who knowingly refused to do so. The lead petitioner in this case was Michael Elgin, a former federal employee who was fired when the government discovered that he failed to register for the draft.  Elgin tried to challenge the law in court, arguing among other things that the law violates the Constitution because women are not required to register for the draft – and therefore can never be fired for failing to do so.  At issue before the Court was not whether Elgin is correct, but instead how he gets to raise his challenge. By a vote of six to three, the Court sided with the federal government, which argued that a former federal employee like Elgin must first bring his claims to a federal agency (the Merit Systems Protection Board, or MSPB), rather than a court – even if the MSPB isn’t allowed to decide constitutional claims like his. The Court reasoned that, even if the MSPB can’t decide Elgin’s claims, the federal appeals court that reviews the MSPB’s decisions – the U.S. Court of Appeals for the Federal Circuit – can.  Therefore, there is no reason to believe that Congress meant to allow litigants like Elgin to bypass the procedure it created for most other employment-related claims.

Recommended Citation: Steve Vladeck, Opinion analysis: A brand-new (and “absolutely weird”) theory of judicial review, SCOTUSblog (Jun. 12, 2012, 10:54 AM),