ELGIN ET AL. v. DEPARTMENT OF THE TREASURY ET AL.
No. 11-45
Supreme Court of the United States
Argued February 27, 2012-Decided June 11, 2012
567 U.S. 1
Harvey A. Schwartz argued the cause for petitioners. With him on the briefs were Leah M. Nicholls and Brian Wolfman.
JUSTICE THOMAS delivered the opinion of the Court.
Under the Civil Service Reform Act of 1978 (CSRA),
I
The CSRA “established a comprehensive system for reviewing personnel action taken against federal employees.” United States v. Fausto, 484 U. S. 439, 455 (1988). As relevant here, Subchapter II of Chapter 75 governs review of major adverse actions taken against employees “for such cause as will promote the efficiency of the service.”
*Elaine Mittleman, pro se, filed a brief as amicus curiae urging reversal.
agency actions are removal, suspension for more than 14 days, reduction in grade or pay, or furlough for 30 days or less.
When an employing agency proposes a covered action against a covered employee, the CSRA gives the employee the right to notice, representation by counsel, an opportunity to respond, and a written, reasoned decision from the agency.
An employee who is dissatisfied with the MSPB‘s decision is entitled to judicial review in the United States Court of Appeals for the Federal Circuit. That court “shall review the record and hold unlawful and set aside any agency action, findings, or conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” “obtained without procedures required by law, rule, or regulation having been followed,” or “unsupported by substantial evidence.”
II
Petitioners are former federal competitive service employees who failed to comply with the Military Selective Service
Among petitioners, only Michael Elgin appealed his removal to the MSPB. Elgin argued that Section 3328 is an unconstitutional bill of attainder and unconstitutionally discriminates on the basis of sex when combined with the registration requirement of the Military Selective Service Act. The MSPB referred Elgin‘s appeal to an Administrative Law Judge (ALJ) for an initial decision.2 The ALJ dismissed the appeal for lack of jurisdiction, concluding that an employee is not entitled to MSPB review of agency actiоn that is based on an absolute statutory bar to employment. App. to Pet. for Cert. 100a-101a. The ALJ also held that Elgin‘s constitutional claims could not “confer jurisdiction” on the MSPB because it “lacks authority to determine the constitutionality of a statute.” Id., at 101a.
Elgin neither petitioned for review by the full MSPB nor appealed to the Federal Circuit. Instead, he joined the other petitioners in filing suit in the United States District Court for the District of Massachusetts, raising the same constitutional challenges to Section 3328 and the Military Selective Service Act. App. 4, 26-28, 29. Petitioners sought equitable relief in the form of a declaratory judgment that the challenged statutes are unconstitutional, an injunction prohibiting enforcement of Section 3328, reinstatement to
The District Court rejected respondents’ argument that it lacked jurisdiction and denied petitioners’ constitutional claims on the merits. See Elgin v. United States, 697 F. Supp. 2d 187 (Mass. 2010). The District Court held that the CSRA did not preclude it from hearing petitioners’ claims, because the MSPB had no authority to determine the constitutionality of a federal statute. Id., at 193. Hence, the District Court concluded that it retained jurisdiction under the general grant of federal-quеstion jurisdiction in
The United States Court of Appeals for the First Circuit vacated the judgment and remanded with instructions to dismiss for lack of jurisdiction. See 641 F. 3d 6 (2011). The Court of Appeals held that challenges to a removal are not exempted from the CSRA review scheme simply because the employee argues that the statute authorizing the removal is unconstitutional. Id., at 11-12. According to the Court of Appeals, the CSRA provides a forum-the Federal Circuit-that may adjudicate the constitutionality of a federal statute, and petitioners “were obliged to use it.” Id., at 12-13.
We granted certiorari to decide whether the CSRA precludes district court jurisdiction over petitioners’ claims even though they are constitutional claims for equitable relief. See 565 U. S. 962 (2011). We conclude that it does, and we therefore affirm.
III
We begin with the appropriate standard for determining whether a statutory scheme of administrative and judicial review provides the exclusive means of review for constitutional claims. Petitioners argue that even if they may obtain judicial review of their constitutional claims before the Federal Circuit, they are not precluded from pursuing their claims in federal district court. According to petitioners,
Petitioners’ argument overlooks a necessary predicate to the application of Webster‘s heightened standard: a statute that purports to “deny any judicial forum for a colorable constitutional claim.” 486 U. S., at 603. Webster‘s standard does not apply where Congress simply channels judicial review of a constitutional claim to a particular court. We held as much in Thunder Basin Coal Co. v. Reich, 510 U. S. 200 (1994). In that case, we considered whether a statutory scheme of administrative review followed by judicial review in a federal appellate court precluded district court jurisdiction over a plaintiff‘s statutory and constitutional claims. Id., at 206. We noted that the plaintiff‘s claims could be “meaningfully addressed in the Court of Appeals” and that the case therefore did “not present the ‘serious constitutional question’ that would arise if a federal statute were construed to preclude all judicial review of a constitutional claim.” Id., at 215, and n. 20 (quoting Bowen, supra, at 681, n. 12). Accordingly, we did not require Webster‘s “heightened showing,” but instead asked only whether Congress’ intent to preclude district court jurisdiction was “fairly dis-
Like the statute in Thunder Basin, the CSRA does not foreclose all judicial review of petitioners’ constitutional claims, but merely directs that judicial review shall occur in the Federal Circuit. Moreover, as we explain below, the Federal Circuit is fully capable of providing meaningful review of petitioners’ claims. See infra, at 16-21. Accordingly, the appropriate inquiry is whether it is “fairly discernible” from the CSRA that Congress intended covered employees appealing covered agency actions to proceed exclusively through the statutory review scheme, even in cases in which the employees raise constitutional challenges to federal statutes.
IV
To determine whether it is “fairly discernible” that Congress precluded district court jurisdiction over petitioners’ claims, we examine the CSRA‘s text, structure, and purpose. See Thunder Basin, supra, at 207; Fausto, 484 U. S., at 443.
A
This is not the first time we have addressed the impact оf the CSRA‘s text and structure on the availability of judicial review of a federal employee‘s challenge to an employment decision. In Fausto, we considered whether a so-called “nonpreference excepted service employe[e]” could challenge his suspension in the United States Claims Court, even though the CSRA did not then afford him a right to review in the MSPB or the Federal Circuit. Id., at 440-441, 448. Citing “[t]he comprehensive nature of the CSRA, the attention that it gives throughout to the rights of nonpreference excepted service employees, and the fact that it does not include them in provisions for administrative and judicial
Just as the CSRA‘s “elaborate” framework, 484 U. S., at 443, demonstrates Congress’ intent to entirely foreclose judicial review to employees to whom the CSRA denies statutory review, it similarly indicates that extrastatutory review is not available to those employees to whom the CSRA grants administrative and judicial review. Indeed, in Fausto we expressly assumed that “competitive service employees, who are given review rights by Chapter 75, cannot expand these rights by resort to” judicial review outside of the CSRA scheme. See id., at 450, n. 3. As Fausto explained, the CSRA “prescribes in great detail the protections and remedies applicable to” adverse personnel actions against federal employees. Id., at 443. For example, Subchapter II of Chapter 75, the portion of the CSRA relevant to petitioners, specifically enumerates the major adverse actions and employee classifications to which the CSRA‘s procedural protections and review provisions apply.
Petitioners do not dispute thаt they are employees who suffered adverse actions covered by the foregoing provisions of the CSRA. Nor do they contest that the CSRA‘s text and structure support implied preclusion of district court jurisdiction, at least as a general matter. Petitioners even acknowledge that the MSPB routinely adjudicates some constitutional claims, such as claims that an agency took adverse employment action in violation of an employee‘s First or Fourth Amendment rights, and that these claims must be brought within the CSRA scheme. See Brief for Petitioners 33; Tr. of Oral Arg. 7-11, 15, 21; see also, e. g., Smith v. Department of Transp., 106 MSPR 59, 78-79 (2007) (applying Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968), to an employee‘s claim that he was suspended in retaliation for the exercise of his First Amendment rights); Garrison v. Department of Justice, 67 MSPR 154 (1995) (considering whether an order directing an employee to submit to a drug test was reasonable under the Fourth Amendment). Nevertheless, petitioners seek to carve out an exception to CSRA exclusivity for facial or as-applied constitutional challenges to federal statutes.
The text and structure of the CSRA, however, provide no support for such an exception. The availability of administrative and judicial review under the CSRA generally turns on the type of civil service еmployee and adverse employment action at issue. See, e. g.,
In only one situation does the CSRA expressly exempt a covered employee‘s appeal of a covered action from Federal Circuit review based on the type of claim at issue. When a сovered employee “alleges that a basis for the action was discrimination” prohibited by enumerated federal employment laws,
B
The purpose of the CSRA also supports our conclusion that the statutory review scheme is exclusive, even for employees who bring constitutional challenges to federal statutes. As we have previously explained, the CSRA‘s “integrated scheme of administrative and judicial review” for aggrieved federal employees was designed to replace an “‘outdated patchwork of statutes and rules‘” that afforded
The 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, and then again in one of the courts of appeals, simply by alleging that the statutory authorization for such action is unconstitutional. Such suits would reintroduce the very potential for inconsistent decisionmaking and duplicative judicial review that the CSRA was designed to avoid. Moreover, petitioners’ position would create the possibility of parallel litigation regarding the same agency action before the MSPB and a district court. An employee could challenge the constitutionality of the statute authorizing an agency‘s action in district court, but the MSPB would remain the exclusive forum for other types of challenges to the agency‘s decision. See Tr. of Oral Arg. 4-7, 9, 15-16.
Petitioners counter that doctrines regarding claim splitting and preclusion would bar parallel suits before the MSPB and the district court. But such doctrines would not invariably eliminate the possibility of simultaneous proceedings, for a tribunal generally has discretion to decide whether to dismiss a suit when a similar suit is pending elsewhere. See 18 C. Wright et al., Federal Practice and Procedure § 4406 (2d ed. 2002 and Supp. 2011). In any event, 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.
V
Petitioners raise three additional factors in arguing that their claims are not the type that Congress intended to be reviewed within the CSRA scheme. Specifically, petitioners invoke our “presum[ption] that Congress does not intend to limit [district court] jurisdiction if ‘a finding of preсlusion could foreclose all meaningful judicial review‘; if the suit is ‘wholly collateral to a statute‘s review provisions‘; and if the claims are ‘outside the agency‘s expertise.‘” Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 489 (2010) (quoting Thunder Basin, 510 U. S.,
A
First, petitioners argue that the CSRA review scheme provides no meaningful review of their claims because the MSPB lacks authority to declare a federal statute unconstitutional. Petitioners are correct that the MSPB has repeatedly refused to pass upon the constitutionality of legislation. See, e. g., Malone v. Department of Justice, 13 M. S. P. B. 81, 83 (1983) (“[I]t is well settled that administrative agencies are without authority to determine the constitutionality of statutes“). This Court has also stated that “adjudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies.” Thunder Basin, 510 U. S., at 215 (internal quotation marks and brackets omitted).5
Petitioners insist, however, that the Federal Circuit cannot decide their constitutional claims either. Emphasizing the Federal Circuit‘s holdings that its jurisdiction over employee appeals is coextensive with the MSPB‘s jurisdiction, petitioners argue that the Federal Circuit likewise lacks jurisdiction
As we have explained, the CSRA makes MSPB jurisdiction over an appeal dependent only on the nature of the employee and the employment action at issue. See supra, at 5-6, 12-13; see also
Contrary to petitioners’ suggestion, Elgin‘s case does not illustrate that the MSPB will invariably dismiss an appeal challenging the constitutionality of a federal statute before reaching the factfinding stage. The ALJ dismissed Elgin‘s case on the threshold jurisdictiоnal ground that he was not an “employee” with a right to appeal to the MSPB because his employment was absolutely barred by statute. See App. to Pet. for Cert. 100a-101a. The Government conceded before the First Circuit that this jurisdictional argument was incorrect, see Brief for Respondents 10, and the Court of
In sum, the CSRA grants the MSPB and the Federal Circuit jurisdiction over petitioners’ appeal because they are covered employees challenging a covered adverse employment action. Within the CSRA review scheme, the Federal Circuit has authority to consider and decide petitioners’ constitutional claims. To the extent such challenges require factual development, the CSRA equips the MSPB with tools to create the necessary record. Thus, petitioners’ constitutional claims can receive meaningful review within the CSRA scheme.11
B
Petitioners nеxt contend that the CSRA does not preclude district court jurisdiction over their claims because they are “wholly collateral” to the CSRA scheme. According to peti
As evidenced by their district court complaint, petitioners’ constitutional claims are the vehicle by which they seek to reverse the removal decisions, to return to federal employment, and to receive the compensation they would have earned but for the adverse employment action. See App. 29-30. A challenge to removal is precisely the type of personnel action regularly adjudicated by the MSPB and the Federal Circuit within the CSRA scheme. Likewise, reinstatement, backpay, and attorney‘s fees are precisely the kinds of relief that the CSRA empowers the MSPB and the Federal Circuit to provide. See supra, at 6; see also Heckler v. Ringer, 466 U. S. 602, 614 (1984) (holding that plaintiffs’ claims were not wholly collateral to a statutory scheme of administrative and judicial review of Medicare payment decisions, where plaintiffs’ constitutional and statutory challenge to an agency‘s procedure for reaching payment decisions was “at bottom” an attempt to reverse the agency‘s decision to deny payment). Far from a suit wholly collateral to the CSRA scheme, the case before us is a challenge to CSRA-covered employment action brought by CSRA-covered employees requesting relief that the CSRA routinely affords.
C
Relatedly, petitioners argue that their constitutional claims are not the sort that Congress intended to channel through the MSPB because they are outside the MSPB‘s expertise. But petitioners overlook the many threshold questions that may accompany a constitutional claim and to which the MSPB can apply its expertise. Of particular relevance here, preliminary questions unique to the employment context may obviate the need to address the constitutional
* * *
For the foregoing reasons, we conclude that it is fairly discernible that the CSRA review scheme was intended to preclude district court jurisdiсtion over petitioners’ claims. The judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE ALITO, with whom JUSTICE GINSBURG and JUSTICE KAGAN join, dissenting.
Petitioners are former federal employees who were discharged for failing to register for the military draft as
The Court affirms the dismissal of petitioners’ suit on the ground that the Civil Service Reform Act of 1978 (CSRA) provides an exclusive administrative remedy for claims of wrongful termination brought by covered federal employees. Because the CSRA provides an avenue for employees to pursue their grievances through the Merit Systems Protection Board, the majority concludes, Congress must have intended to remove petitioners’ claims from the ordinary ambit of the federal courts.
The problem with the majority‘s reasoning is that petitioners’ constitutional claims are a far cry from the type of claim that Congress intended to channel thrоugh the Board. The Board‘s mission is to adjudicate fact-specific employment disputes within the existing statutory framework. By contrast, petitioners argue that one key provision of that framework is facially unconstitutional. Not only does the Board lack authority to adjudicate facial constitutional challenges, but such challenges are wholly collateral to the type of claims that the Board is authorized to hear.
The majority attempts to defend its holding by noting that, although the Board cannot consider petitioners’ claims, petitioners may appeal from the Board to the Federal Circuit, which does have authority to address facial constitutional claims. But that does not cure the oddity of requiring such claims to be filed initially before the Board, which can do nothing but pass them along unaddressed, leaving the Federal Circuit to act as a court of first review, but with little capacity for factfinding.
I
As a general matter, federal district courts have “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”
Congress may remove certain claims from the general jurisdiction of the federal courts in order to channel these claims into a system of statutory review. For example, in Shalala v. Illinois Council on Long Term Care, Inc., 529 U. S. 1 (2000), we considered a clause providing that “no action . . . to recover on any claim” arising under the Medicare laws “shall be ‘brought under section 1331 . . . of title 28,‘” id., at 5 (quoting
We have also recognized that preclusion can be implied. When Congress creates an administrative process to handle certain types of claims, it impliedly removes those claims from the ordinary jurisdiction of the federal courts. Under these circumstances, the test is whether “the ‘statutory scheme’ displays a ‘fairly discernible’ intent to limit jurisdiction, and the claims at issue ‘are of the type Congress intended to be reviewed within th[e] statutory structure.‘” Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 489 (2010) (quoting Thunder Basin Coal Co. v. Reich, 510 U. S. 200, 207, 212 (1994); alteration in Free Enterprise). In making this determination, we look to “the statute‘s language, structure, and purpose, its legislative history, and whether the claims can be afforded meaningful review” through the alternative administrative process that Congress has established. Thunder Basin, supra, at 207 (citation omitted).
We have emphasized two important factors for determining whether Congress intended an agency to have exclusive original jurisdiction over a claim. The first is whether the claim falls within the agency‘s area of expertise, which would give the agency a comparative advantage over the courts in resolving the claim. “Generally, when Congress creates procedures ‘designed to permit agency expertise to be brought to bear on particular problems,’ those procedures ‘are to be exclusive.‘” Free Enterprise Fund, supra, at 489 (quoting Whitney Nat. Bank in Jefferson Parish v. Bank of New Orleans & Trust Co., 379 U. S. 411, 420 (1965)).
Second, even if a claim would not benefit from agency expertise, we nonetheless consider whether the claim is legally or factually related to the type of dispute the agency is authorized to hear. If so, the claim mаy be channeled through the administrative process to guard against claim splitting, which could involve redundant analysis of overlapping issues of law and fact. But for claims that fall outside the agency‘s expertise and are “wholly collateral” to the type of dispute the agency is authorized to hear, the interest in requiring unified administrative review is considerably reduced. Thunder Basin, supra, at 212 (internal quotation marks omitted); see also Free Enterprise Fund, supra, at 490-491.
II
The CSRA was enacted to “provide the people of the United States with a competent, honest, and productive Federal work force reflective of the Nation‘s diversity, and to improve the quality of public service.” §3(1), 92 Stat. 1112.
Chapter 75 of Title 5 sets forth detailed procedures for adverse actions taken against certain covered employees “for such cause as will promote the efficiency of the service.”
The Board‘s mission is “to ensure that Federal employees are protected against abuses by agency management, that Executive branch agencies make employment decisions in accordance with the merit system principles, and that Federal merit systems are kept free of prohibited personnel practices.” Merit Systems Protection Board, An Introduction to the Merit Systems Protection Board 5 (1999). The Board adjudicates employment disputes in accordance with applicable federal laws and regulations, including the “[m]erit system principles” and “[p]rohibited personnel principles” identified in
The parties аgree that petitioners are covered employees who may file an appeal to the Board protesting their removal from federal employment. The parties also agree, however, that the Board lacks authority to adjudicate claims like those asserted by petitioners, which attack the validity of a federal statute as a facial matter. As this Court has noted, “[a]dju
III
There is no basis for the majority‘s conclusion that petitioners must file their constitutional challenges before the Board instead of a federal district court. Congress has not expressly curtailed the jurisdiction of the fedеral courts to consider facial constitutional claims relating to federal employment, and no such limitation can be fairly discerned from the CSRA. Not only are petitioners’ claims “wholly collateral to [the CSRA‘s] review provisions and outside the agency‘s expertise,” Thunder Basin, supra, at 212 (internal quotation marks omitted), but the Board itself admits that it is completely powerless to consider the merits of petitioners’ arguments. In short, neither efficiency nor agency expertise can explain why Congress would want the Board to have exclusive jurisdiction over claims like these. To the contrary, imposing a scheme of exclusive administrative review in this context breeds inefficiency and creates a procedural framework that is needlessly vexing.
A
Petitioners argue that registration for the military draft violates the Equal Protection and Bill of Attainder Clauses. These facial constitutional arguments are entirely outside the Board‘s power to decide, and they do not remotely impli
Petitioners’ constitutional claims also have no relation to any of the facts that might be relevant to a proceeding before the Board. The Board typically addresses factual issues pertaining to the specific circumstances in which employee grievances arise. For example: Why was a particular employee removed from federal employment? Does the employer have a sound, nonprohibited basis for the employment action in question? See, e. g., Davis v. Department of Veterans Affairs, 106 MSPR 654, 657-658 (2007).
By contrast, petitioners’ claims involve general factual issues pertaining to the facial constitutionality of the military draft. The equal protection question is whether men and women are sufficiently different to justify disparate treatment under the Military Selective Service Act. Rostker v. Goldberg, 453 U. S. 57, 78 (1981). The factual record that petitioners wish to develop would address issues of gender difference that might be considered relevant to military service. See Brief for Petitioners 48 (alleging that “women‘s role in the military has changed dramatically in the past thirty years“). Likewise, under the Bill of Attainder Clause, the key question is whether requiring draft registration as a сondition of federal employment amounts to the singling out of a particular person or group for punishment without trial. See Nixon v. Administrator of General Services, 433 U. S. 425, 468-469 (1977). Whatever the relevant facts may be on either claim, it is clear that they can have no conceivable bearing on any matter the Board is authorized to address.
B
Administrative agencies typically do not adjudicate facial constitutional challenges to the laws that they administer. Such challenges not only lie outside the realm of special
Several other cases confirm this basic principle. In Free Enterprise Fund, for example, the plaintiffs were not required to pursue their constitutional claims through the Public Accounting Company Oversight Board, because they were challenging the very existence of the Board itself. 561 U. S., at 490-491. Likewise, in Johnson v. Robison, 415 U. S. 361, 373-374 (1974), where petitioners brought claims “challеnging the constitutionality of laws providing benefits,” the Court held that these claims were not precluded by a statute creating exclusive administrative review over how those benefits were administered. And in Mathews v. Eldridge, 424 U. S. 319, 327-332 (1976), we held that although a party challenging the denial of statutory benefits was generally required to proceed through the statutory process of administrative review, a constitutional challenge to the administrative process itself could still be brought directly in federal court.
The present case follows the same pattern: Petitioners are challenging the facial validity of a law that the Board is bound to apply to them, and so it makes little sense for them to seek review before the Board.
The wholly collateral nature of petitioners’ claims makes them readily distinguishable from claims that this Court has held to be impliedly excluded from the original jurisdiction of the federal courts. In Fausto, for example, we held that the CSRA precluded a statutory Back Pay Act claim involving a dispute over whether an employee had engaged in unauthorized use of a Government vehicle. 484 U. S., at 455.
Similarly, in Bush v. Lucas, 462 U. S. 367 (1983), we declined to allow a claim under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), brought by an employee seeking money damages for an alleged “retaliatory demotion or discharge because he ha[d] exercised his First Amendment rights.” 462 U. S., at 381. Although the claim was constitutional in nature, we noted that it “ar[o]se out of an employment relationship that is governed by comprehensive procedural and substantive provisions” that had been enacted by Congress. Id., at 368. The employee was pursuing an as-applied challenge that depended on the case-specific facts of why he had been fired. The gravamen of the employee‘s claim was that he had been “unfairly disciplined for making critical comments about [his agency].” Id., at 386. Under the statutory scheme that Congress had created, the employee could have pursued a very similar statutory claim for wrongful removal within the administrative process. Id., at 386-388. Under these circumstances, we found that Congress did not intend to allow a duplicative nonstatutory claim for damages based on the same set of underlying facts.
Finally, the majority‘s reliance on Thunder Basin is entirely misplaced. See ante, at 16-17. In that case, we found that a statutory scheme impliedly precluded a preenforcement challenge brought by a mining company seeking to enjoin an order issued by the Mine Safety and Health Administration. 510 U. S., at 205. Importantly, the plaintiff com
C
By requiring facial constitutional claims to be filed before the Board, the majority‘s holding sets up an odd sequence of procedural hoops for petitioners to jump through. As the
The Government admits that the absence of first-tier factfinding might very well result in “the initial record” being “insufficient to permit meaningful consideration of a constitutional claim,” but suggests that the court could always “remand the case to the [Board] for further factual development.” Brief for Respondents 41. The majority accepts this solution, ante, at 19, but it is hard to see how it will work in practice. Without any authority to decide merits issues, the Board may find it difficult to adjudicate disputes about the relevancy of evidence sought in discovery. Nor will the Board find it easy to figure out which facts it must find before sending the case back to the Federal Circuit.
Even if these problems can be overcome, that will not resolve the needless complexity of the majority‘s approach. According to the majority, petitioners should 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, which must then develop the record and send the case back to the Federal Circuit, which can only then consider the constitutional issues.
To be sure, this might be sufficient to afford “meaningful review” of petitioners’ claims, ante, at 21, but that is not the only consideration. The question is whether it is “fairly discernible” that Congress intended to impose these pinball
To the extent that there is some need to prevent claim splitting, that purpose is already served by ordinary principles of claim preclusion. Plaintiffs generally must bring all claims arising out of a common set of facts in a single lawsuit, and federal district courts have discretion to enforce that requirement as necessary “to avoid duplicative litigation.” Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976); Stone v. Department of Aviation, 453 F. 3d 1271, 1278 (CA10 2006) (“A plaintiff‘s obligation to bring all related claims together in the same аction arises under the common law rule of claim preclusion prohibiting the splitting of actions“). See also 18 C. Wright et al., Federal Practice and Procedure § 4406, p. 40 (2d ed. 2002, Supp. 2011) (discussing “principles of ‘claim splitting’ that are similar to claim preclusion, but that do not require a prior judgment“). Thus, if an aggrieved employee goes to a district court with claims that would duplicate the factfinding or legal analysis of a separate Board proceeding, the district court would be free to dismiss the case.
The majority suggests that its approach will allow the Board to resolve some cases on nonconstitutional grounds,
Finally, the majority contends that channeling facial constitutional claims through the Board is necessary to provide “clear guidance about the proper forum for the employee‘s claims at the outset of the case.” Ante, at 15. Because it can be hard to tell the difference between facial and as-applied challenges, the majority argues, it is less confusing simply to require that all claims must be brought before the Board. This is a red herring. Labels aside, the most sensible rule would be to allow initial judicial review of constitutional claims that attack the validity of a statute based on its inherent characteristics, not as a result of how the statute has been applied. That line is bright enough, and the distinction is already one that the Board must draw based on its own determination that it can hear some as-applied challenges but lacks “authority to determine the constitutionality of statutes.” Malone, 13 M. S. P. B., at 83.
IV
The presumptive power of the federal courts to hear constitutional challenges is well established. In this case, however, the majority relies on a very weak set of inferences to