Legal Update: Scotus and Pinball Litigation

These two cases concern government employees. The first provides the pinball analogy, courtesy of Justice Alito.  The case is Elgin v.  Department of the Treasury, No. 11-45, 6/12/2012. The case concerns four former federal employees who were discharged or constructively discharged because they had not registered for military service. Federal law (5 U.S.C. §3328) bans such people from employment by a federal executive agency.  The challenge to agency action was based on Constitutional grounds: bill of attainder, prohibited by the First Amendment (“attainder” means being tainted and involves loss of civil rights as punishment for a crime; it had been used in British law to cause forfeiture of the property of the attainted to the government or feudal lord and was sometimes used to single out individuals for special punishment); and sex discrimination since the military service requirement applies only to males, based (presumably) on the Fifth Amendment’s guarantee of due process. The Civil Service Reform Act (CSRA) established the U.S. Merit Systems Protection Board (MSPB) to deal with federal employee appeals from agency action; further appeal is to the Federal Circuit Court of Appeals. Only for specified discrimination situations can the employee go to another federal court.

Elgin appealed Treasury’s discharging him to MSPB. An Administrative Law Judge for MSPB dismissed the case for lack of jurisdiction: MSPB could not overturn a clear statutory employment prohibition, nor could it rule on Constitutional issues. Faced with the technicality that MSPB had dismissed the case without a substantive ruling to be appealed to the Federal Circuit, Elgin joined three similarly situated plaintiffs to bring suit in federal district court in Massachusetts. The district court claimed jurisdiction because of the Constitutional issues involved, but then ruled against the plaintiffs on the merits. On appeal to the First Circuit, that court decided that the district court lacked jurisdiction because it was a federal employment case, Constitutional issues notwithstanding.

So who has jurisdiction to do what?  Justice Thomas authored the Supreme Court decision in which five of his brethren joined in affirming the First Circuit decision. MSPB has jurisdiction and should not have punted the case without making a determination. Federal employee cases alleging Constitutional issues have gone through MSPB previously. If MSPB is confronted with a Constitutional issue it can’t handle, it can affirm the agency action, thus clearing the way for an appeal to the Federal Circuit. The rationale is that the CSRA is very clear on the procedure that has to be followed. This preserves uniformity in adjudicating federal employment cases.

The dissent, comprised of Justices Alito, Ginsburg, and Kagan, thought that this was an excessively roundabout way to do business, giving rise to the pinball analogy. MSPB would essentially pass through the case to the Federal Circuit appellate court. Appellate courts deal with review of legal issues on appeal. They are not situated to be the initial triers of fact.

The pinball analogy might also fit the second case, Briscoe v. City of Hartford, No. 11-1024, cert. denied 6/11/2012. Briscoe is the other shoe that dropped in Ricci. Briscoe brought the suit that the city said it was trying to avoid, involving an allegedly invalid test and questionable cut score with adverse impact against African Americans. The district court was sympathetic, but thought that nothing could be done because of the Supreme Court’s action in Ricci. But the Second Circuit held that Briscoe was entitled to his own day in court. The city then appealed to the Supreme Court, arguing that the Supreme Court had compelled it to certify the promotional list that Briscoe was challenging. But the Supreme Court will not get involved in the current fight, so it appears that this case is going to bounce back to district court.

Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.

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About Richard Tonowski

Rich joined EEOC in 2001 as a Psychologist, worked as the assistant HR director for strategic policy and planning from 2003 to 2006, and then became Chief Psychologist. In that role he reviews test validation documentation, conducts statistical analyses regarding employment practices, and consults with EEOC attorneys and investigators. Prior to his time with EEOC, he had over 20 years of experience involving public sector test development and validation, performance appraisal, employee surveys, diversity management, and labor relations. He also had experience in providing written and oral testimony as an expert witness in court cases, and in federal sector hearings conducted by EEOC and the Merit Systems Protection Board. Rich was awarded his Ph.D. in psychology by Rutgers University, and is certified as a Senior Professional in Human Resources by the credentialing affiliate of the Society for Human Resource Management. He is also an Adjunct Associate Professor of Human Resources Management and Development at University of Maryland University College where he teaches a graduate course.

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