Fired federal employees have limited route for challenging dismissals

[alp227]

Source: Washington Post

Federal employees who were fired because they did not sign up for the U.S. draft may not challenge the constitutionality of their dismissals in federal district courts, the Supreme Court ruled Monday.

The justices ruled 6 to 3 that Congress has set up a strict method for government employees to appeal their dismissals — first before the Merit Systems Protection Board and then the U.S. Court of Appeals for the Federal District — even if the claim is that the firing was unconstitutional.

Justice Clarence Thomas, writing for the majority, said the Civil Service Reform Act of 1978 was intended to replace a patchwork of statutes and rules that developed when employees had the right to challenge agency actions in district courts across the country.

The system would be undermined, he wrote, if it could be bypassed “simply by alleging that the statutory authorization for such action is unconstitutional.”

Read more: http://www.washingtonpost.com/politics/fired-federal-employees-have-limited-route-for-challenging-dismissals/2012/06/11/gJQAJYVaVV_story.html

[ProgressiveProfessor]

1. Misleading title

There is a process and after the MSPB, the courts are involved.

Interesting to see Thomas on one side and Alito on the other

[happyslug]

2. Actual Opinion of the Court

Last edited Thu Jun 14, 2012, 12:11 AM - Edit history (2)

http://www.supremecourt.gov/opinions/11pdf/11-45.pdf

The dispute between Thomas on and Alito relates to who gets to hear a Constitutional attack on a statute, when Congress made a rule that ALL claims covered by that Statute MUST go through a certain system AND that system can NOT rule on the constitutionality of a Statute UNTIL an appeal if filed.

This involved Civil Service and the law that FORBIDS any male who has NOT filed with the Selective Service System (or otherwise exempt from such registration, men born between March 29, 1957, and December 31, 1959, men born between those two dates would have turned 18 between the ending of the Vietnam era Draft and the Selective Service Act passed under Carter, thus when they turned 18 they was NO Selective Service Act in operation).

Plaintiff's challenged the above rule in Federal District Court. The Civil Service Act of 1978 said ALL claims involving Civil Service MUST go through an administrative process AND if the employee's termination is upheld then to Federal Circuit Court of Appeals (In Washington DC), then to the US Supreme Court. The Civil Service administrative System has NO authority to rule on any FACIAL Constitutional attack on any law. Thus if you go through the Administrative Process, the Administrative Law Judge will first rule they have NO jurisdiction over the Constitutional attack, rule on the FACTS of the case, then if the employee loses, the Employee can THEN file in Federal Circuit Court of Appeals as to BOTH the underlying ruling under the Civil Service Act AND the Constitutional attack.

It is at this point Thomas and Alito diverged. Thomas saw NO problem with the Facial Constitutional attack being adjudicated for the first time by the Federal Circuit Court of Appeals. Alito saw that as a violation of Due Process in that the Appeals court, which has NO jurisdiction to make any findings of facts (That is reserved to the Administrative Agency, just like in Civil and Criminal Cases Factual findings are reserved to a Jury) would be the first time the Constitutional challenge would be heard. At the same time the Appeals court would NOT have a ruling by a Trial Court, which can develop the fact, if it is a non-jury issue, such as Civil Service employment, as to both the Facts and the Law in regards to the Constitutional challenge.

In simple terms, is it a violation of Due Process (Here we are talking of FEDERAL Due Process under the Fifth Amendment NOT the 14th Amendments Due Process clause) for Congress to require anyone attacking the Constitutionally of a law to first go through an Administrative Process that does NOT permit such an attack, WHEN such a Constitutional attack can still be attack on appeals to a Federal Court of Appeals?

Thomas, Chief Justice Roberts, SCALIA, KENNEDY, BREYER, and SOTOMAYOR said yes Congress can make such a requirement. Alito, GINSBURG and KAGAN said NO, not permitting a Direct Attack Constitutional Attack at the finding of facts level is a denial of Due Process and Unconstitutional.

[James48]

5. Interesting.

But I want to know when someone is going to file based on violation of the equal protection clause.

Women don't have to register. Only men do. So only men can get fired, not women.

Where is that pesky 14th Amendment we you need it, and why does it say "No state shall.." when it appears the Federal government can?

[happyslug]

6. The 14th does NOT apply to the Federal Government, only the 5th Amendment's Due Process clause apply

You have to remember the 14th made is a FEDERAL guarantee that each STATE will give people Due Process and Equal Protection of the Laws, it did NOT address FEDERAL DUE PROCESS for that was already covered by the Fifth Amendment.

Article [V]
No person shall ... deprived of life, liberty, or property, without due process of law;... .

The 14th:

nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
http://constitutionus.com/

Given that Selective Service is a FEDERAL ACTION, any attack is via the FIFTH AMENDMENT NOT the 14th. The problem with such an attack is the US Supreme Court has UPHELD previous drafts and Selective Service Acts on the grounds that is a power Congress retains. i.e. Congress has the right to draft whoever it wants (The best example of this was the Doctor's draft of the 1950s and 1960s, even if you had previously served in the Military, any doctor, upon graduation from medical school, could be drafted into the service for the Military needed Doctors (The doctor's draft applied even to women). Thus if you want to attack the present Selective Service System,you have to work around the fact Congress passed drafts of men only during the Civil War, WWI, WWII, Korea and Vietnam. Given that the Equal Rights Amendment was never ratified, it can NOT be used in any constitutional challenge to the draft.

Another problem is the Fifth was passed with the Second, and the Second clearly refers to the "Militia" and under the laws THE SAME CONGRESS THAT PASSED THE BILL OF RIGHTS ALSO PASSED THE MILITIA ACT OF 1792 (and was repassed in 1795. with some corrections, but no actual changes, after the Bill of Rights was adopted).

The 1792 Militia Act clearly required "ALL WHITE MALES" to serve in the Militia (The post Civil War Amendments clearly made the Term "White" to mean "ALL" thus including the then newly freed African Americans in the Militia of the US). Thus ALL MALES were subject to military service under the Fifth Amendment at the time the Fifth was adopted and that has been good enough argument for the Supreme Court ever since.

Side Comment. I see Scalia supporting a draft of men only, I have my questions as to Roberts and Alito (Thomas position is unclear in my mind, he more often then note a lap dog to Scalia, but has at times dissented from Scalia over odd things, thus makes him a question mark as to the draft). Scalia is an older conservative who tends to support National Unity over Individual rights, thus would tend to support a draft of men only, given in combat, if a draft is needed, it will be for infantrymen (i.e. boots on the ground).

Robert and Alito is of the post-Reagan Conservatives, Individual right is supreme to them, even at making the country worse (i.e. more important to leave individuals to have the freedom to pollute, then to protect the majority of people from such pollution). Thus Roberts and Alito may very well oppose a draft for it restricts individual "freedom" i.e. the right to run away while the rest of the country is destroyed (A position old fashion conservatives like Scalia would reject). Thus Alito's dissent may very while reflect his attitude to the draft, i.e. economic drafts are acceptable (i.e. only job is to join is the Army is alright to them) on the other hand FORCING people to fight is an attack on freedom, even if the only way to save the country is to draft people to defend the country (i.e. it is better for the country to be destroyed then to draft the rich).

[24601]

7. Did the numbers add up in your post? It was 6-3. From the Washington Post article:

"Thomas, joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, Stephen G. Breyer and Sonia Sotomayor, said the law was clear that the only avenue for Elgin was the federal circuit court." (The 6)

"The court’s dissenters said Elgin’s constitutional challenge was “a far cry from the type of claim that Congress intended to channel through” the MSPB. Such an administrative tribunal lacks the expertise and authority to decide constitutional claims, wrote Justice Samuel A. Alito Jr., who was joined by Justices Ruth Bader Ginsburg and Elena Kagan." (The 3)

http://www.washingtonpost.com/politics/fired-federal-employees-have-limited-route-for-challenging-dismissals/2012/06/11/gJQAJYVaVV_story.html

[happyslug]

8. Bad sentence construction by me

I ended up merging Alito's, Ginsburg's and Kagan's names with the name of the five Justices that agreed with Thomas.

[benld74]

3. He knows how to write???????

[Occulus]

4. Knock me over with a feather.