The U.S. Supreme Court handed down a 6-3 decision this week in Elgin v. Department of Treasury, a case involving the Civil Service Reform Act of 1978.

In that case, Michael Elgin and three other male petitioners were federal employees who failed to register for the Selective Service, as required by law. Elgin’s employer, the Department of Treasury, found out and terminated him in 2007. Elgin then filed an appeal with the Merit Systems Protection Board, arguing that the law requiring registration for Selective Service was unconstitutional.

The Administrative Judge dismissed the appeal based on lack of jurisdiction to decide such a question. Here is the AJ’s opinion.

District Court Diversion. Rather than appealing the decision to the full Board and then the Court of Appeals for the Federal Circuit, Elgin joined the other petitioners by filing suit in federal district court with the same argument of unconstitutionality. The district court judge held that he had jurisdiction to hear the case but ruled against Elgin on the merits.

On appeal at the First Circuit, the court held the federal district judge had no jurisdiction to hear the case and remanded back with instructions. Elgin then appealed to the Supreme Court.

In a majority opinion written by Justice Thomas and joined by Justices Roberts, Kennedy, Scalia, Breyer, and Sotomayor, the Supreme Court decided that Elgin could not challenge the unconstitutionality of a law responsible for his termination in federal district court. Instead, the Civil Service Reform Act of 1978 proscribes his legal route for such challenges through the MSPB/Federal Circuit.

Justice Alito wrote the dissent, which was joined by Justices Ginsburg and Kagan. He argued that the 1978 Congress would have been very surprised to learn that the CSRA foreclosed federal district court review of constitutional questions such as this one.

Picking Inferences. This case is remarkable for the fact that both opinions make a number of inferences about what the CSRA does not say.

Inference #1: From the majority’s point of view, the CSRA is a comprehensive scheme for judicial review of employees’ claims that channels claims to the MSPB and the Federal Circuit. If Congress wanted federal employees to have court access, it would have said so. Indeed it did say so with regards to EEO discrimination matters.

Inference#2: The fact that it provided court access for one CSRA matter (EEO) but not another (constitutionality of statutes) shows it intended to provide court access for the former but not the latter.

Inference #3: Moreover, there is nothing in the CSRA to support petitioners’ claim that the CSRA excludes facial constitutional challenges from its review scheme.

Inference #4: “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.”

The dissenters’, for their part, rely on a number of inferences to support the opposite conclusion:

Inference #1: Given the fact that the MSPB has no authority to hear decide the constitutionality of statutes, it is doubtful that “Congress intended to channel petitioners’ constitutional claims into an administrative tribunal that is powerless to decide them.”

Inference #2: In light of

• 28 U.S.C. § 1331, the statute that generally grants federal district courts “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States,” and
• the fact that the CSRA is silent regarding revocation of district court review over facial constitutional challenges,

it cannot be said that Congress has “expressly curtailed the jurisdiction of the federal courts to consider facial constitutional claims relating to federal employment.”

Inference #3: Similarly, other statutes are explicit when exempting a statute from the reaches of 28 U.S.C. § 1331 (see, e.g., the Social Security Act, 42 U.S.C. § 405(h)). Because the CSRA does not include such an exemption, federal district court review still applies for facial constitutional challenges.

Pinball Wizards. What’s more remarkable is that the jurists in the highest court in the land cannot agree where employees raising constitutional questions ought to go.

The majority claims that allowing district court review is improper because it would “seriously undermine” the CSRA’s “objective of creating an integrated scheme of review” if employees could challenge a covered employment action in district court and then in a court of appeals simply by alleging an unconstitutionality.

Doing so would “reintroduce the very potential for inconsistent decision making and duplicative judicial review that the CSRA was designed to avoid.” This would open the door to “simultaneous proceedings.”

(As an aside, the CSRA when passed in 1978 allowed access to all the judicial circuits, but Congress limited appellate review to the then-brand new Court of Appeals for the Federal Circuit, in 1982.)

Dissenters point out that “the majority’s holding sets up an odd sequence of procedural hoops for petitioners to jump through.” Because the Board is “powerless to adjudicate facial constitutional claims, . . . 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 fact finding at the administrative level.”

Thus, future petitioners will “pinball” between the MSPB and the Federal Circuit, First, they will be required to “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 [for constitutional fact-finding], which must then develop the record and send the case back to the Federal Circuit, which can only then consider the constitutional issues.”

The Value of Nothing. Nothing played as much of a role in this case as what Congress did not say when it passed the Civil Service Reform Act. Nothing was utilized by both sides to support their positions, pointing to what Congress did in other contexts or what it could have done but apparently chose not to do. Background rules, like 28 U.S.C. § 1331, matter only if they’re brought into the analysis. If not, it’s virtually a blank slate for the Justices to project their biases and predilections onto. Did Congress have this or that in mind in 1978? Or, is the Supreme Court reading into things?

The bottom line is that this is the bread-and-butter of statutory interpretation, and how judges frame the issues – what background norms they assume – largely determines the outcome. Nevertheless, the Supreme Court had to pick between two choices, regardless what Congress silently intended 35 years ago.