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Argument recap: When is “an action subject to judicial review” not a “judicially reviewable action”?

The following recap is written by Howard M. Wasserman, Professor of Law, FIU College of Law

Sometimes everyone – attorneys and justices –  has trouble keeping up with a detailed oral argument on a complicated statute. That was the upshot of an exchange between Chief Justice Roberts and Sarah E. Harrington, an Assistant to the Solicitor General, early in the government’s argument yesterday in Kloeckner v. Solis. When Harrington introduced her “linchpin” statutory distinction between an “action subject to judicial review” and a “judicially reviewable action,” the Chief responded by asking her to “say that again . . . .  A little more slowly.” Less than a minute later, the Chief tried to summarize the argument, to which Harrington said, “Say it again? I’m sorry?” And the Chief promised to do it “[m]ore slowly.” Laughter followed.

As Harrington put it, “This is going to happen a lot” in a case involving the parsing of a statute, the Civil Service Reform Act, that everyone long has agreed is “very complicated.”

At issue was whether the Federal Circuit or a federal district court had jurisdiction over an appeal from a decision of the Merit Systems Protection Board (MSPB) in a “mixed case” containing claims of both wrongful termination (under the Civil Service Reform Act) and employment discrimination (in this case under Title VII and the Rehabilitation Act), where the MSPB rejected the administrative appeal as untimely and did not reach the merits of the discrimination claim.

Arguing for the petitioner, University of Washington law professor Eric Schnapper offered what he insisted was a clear and simple rule: “All mixed cases go to the district court,” regardless of the basis on which the MSPB resolved the case. Schnapper drove the point home in his rebuttal, calling back to the Chief’s suggestion in Monday’s argument in Lozman v. City of Riviera Beach that subject matter jurisdiction rules should be clear. The petitioner’s rule, Schnapper insisted, is “demonstrably clearer.” In trying to figure out which mixed cases go to the district court, the answer is “all.” Justice Alito questioned how a nondiscrimination claim could be filed as part of a Title VII claim; Schnapper described it as a bit like supplemental jurisdiction, in which state claims bootstrap federal claims; “[s]o long as the plaintiff is asserting a discrimination claim, the CSRA claim comes along with it.” Both discrimination and nondiscrimination claims are treated as one in the administrative proceeding; in response to separate questions from Justices Alito and Sotomayor, Schnapper therefore insisted that it would be “highly peculiar” to split them in half for judicial review. Instead, he told Justice Kagan, an employee with a mixed case is in the same position as an employee who has a straight anti-discrimination case – both go to district court.

The Justices at several points wanted Schnapper to educate them about the overall administrative structure. Schnapper told Justice Alito that a discrimination claim could not go to the Federal Circuit; a party who chooses to appeal the MSPB’s decision on termination to the Federal Circuit must waive the discrimination claim. He explained to the Chief and Justice Ginsburg why an employee with a potential mixed case would ever go to the MSPB:  the chance of success on the CSRA claim is much higher at the Board, which would eliminate the need to pursue the discrimination claim.

Arguing for the government, Harrington faced a far more skeptical bench. Her careful textual argument required her to repeatedly quote statutory language to the Court. The Chief called her statutory argument “tough,” to which Harrington responded that “[i]t’s a tough statute.” Justice Breyer further captured that skepticism when, after summarizing Kloeckner’s argument for district court jurisdiction, he described it as “just so simple.” Harrington acknowledged that Kloeckner’s rule was indeed a simple one, and she agreed that if the Justices were empowered to make the rules, they might adopt that view. But, she emphasized, here the goal was to figure out how much of an exception Congress wanted to make to the Federal Circuit’s exclusive jurisdiction over MSPB decisions.

The key to the government’s argument was the phrase “judicially reviewable action.” This was, she insisted, a term of art, one appearing nowhere else in the U.S. Code; this, she suggested, meant the term carried a different, narrower meaning than other, more routine board “actions subject to judicial review.” The latter includes a procedural dismissal, such as the one by the MSPB in this case. But the former only includes orders in which the Board “decide[s] both the issue of discrimination and the appealable action in accordance with the board’s appellate procedures”; the Board does not decide the issue of discrimination when it follows its own procedures and dismisses the appeal as untimely. Admitting that the argument sounds “a little strange,” Harrington offered an analogy – the DMV will have complied with its directive to “issue a license in accordance with its procedures” by not issuing a license if the applicant failed to comply with rules requiring her to pay a fee or submit to an eye exam. Similarly, by not deciding the issue of discrimination, the MSPB followed its procedures, but did not create a judicially reviewable action.

Several Justices took turns questioning, if not casting doubt on, that argument. Justice Breyer suggested that courts do indeed “decide the issue” raised in court in deciding that a claim is untimely or barred. Harrington responded that a dismissal based on untimeliness is usually not thought of as “deciding the issue.” This suggested a further distinction between an “issue” of discrimination (the term used in the statute) and an allegation or claim or part of the case of discrimination; the statute demanded that the Board decide the “issue,” a more limited determination. Nevertheless, Justice Breyer wondered why the Court should “jump over 14 hurdles to give this narrow interpretation to that word.” The Chief similarly described the argument as an “odd, backhanded way” to get at a reading of the statute. Justice Kagan called it a “remarkably strange” and a “extremely complicated and backhanded way” for Congress to achieve its goal, in having so much turn on it having used the word “decide” rather than “dispose.” Congress, Justice Kagan said, could have found a much easier way to say that procedural determinations should not go to district court.

Harrington’s answer was that this did accomplish the simple statutory goal of directing procedural decisions into the Federal Circuit; it did so by making Federal Circuit review the background rule, subject to an exception that should not be read more broadly than necessary to accommodate employees’ rights to bring discrimination claims to district court. Where judicial review would have focused on timeliness of the Board appeal and the correctness of the Board decision on its internal procedures, Congress would not have wanted that decision to be reviewed anywhere other than the Federal Circuit. Justices Sotomayor and Kagan both pointed out that the Federal Circuit was created after the relevant statutory language was enacted, meaning Congress could not have had any intent with respect to the Federal Circuit’s jurisdiction. Harrington responded that, even before the Federal Circuit was created, procedural issues still were excluded from district court jurisdiction and sent to the regional courts of appeals. No matter what, Congress did not want district courts considering MSPB procedural issues.

Finally, the Court and the parties sought to narrow the case on several issues. Both sides agreed that if the MSPB decides the merits of the discrimination issue, the discrimination and CSRA issues, as well as some potential MSPB procedural issues, all could go to the district court. Schnapper also emphasized that the petitioner had not pursued the CSRA claim in the district court. Thus, to the extent some issues related to the non-discrimination claim in a mixed case might be more properly in the Federal Circuit in some cases, they did not affect the outcome in this action and the Court need not resolve them.

Recommended Citation: Howard M. Wasserman, Argument recap: When is “an action subject to judicial review” not a “judicially reviewable action”?, SCOTUSblog (Oct. 3, 2012, 3:03 PM),