Answering the 'Serious Constitutional Question': Ensuring Meaningful Review of All Constitutional Claims

Abstract

In 2012, the Supreme Court in Elgin v. Department of the Treasury clarified the standard that should apply when a federal statute purports to remove judicial review of all constitutional claims. The Court confirmed that, if a statute only channels judicial review of a constitutional claim into a specific avenue (for example, through administrative review and then the Federal Circuit Court of Appeals), then Congressional intent to do so need only be “fairly discernible.” Alternatively, if a statute precludes all judicial review of a constitutional claim, there must be “clear Congressional intent.” The Court explained that the reason for these differing standards is to avoid the “serious constitutional question that would arise if an agency statute were construed to preclude all judicial review of a constitutional claim.” Courts have a duty to protect and interpret the Constitution and claimants have a right to meaningful review of their constitutional claims.

That serious constitutional question does arise when probationary federal public employees, who are not fully covered by Civil Service Reform Act (“CSRA”) protections, allege constitutional violations related to their employment. For example, the CSRA right to directly petition the Merit Systems Protection Board (“MSPB”) and to appeal to the Federal Circuit Court of Appeals is unavailable to probationary federal public employees. Instead, probationary federal employees who allege that their employment was terminated in violation of the U.S. Constitution may only petition the U.S. Office of Special Counsel. If the Office of Special Counsel denies an employee’s claim, that claim is terminated without any further administrative or judicial review.

This result raises the serious constitutional question, one that dates back to Marbury v. Madison, about the judicial duty of review of constitutional claims, particularly those involving individual rights. Given the lack of meaningful review of constitutional claims brought by federal probationary employees, a judicial remedy must be provided to ensure deterrence of unconstitutional acts by federal employers. That remedy should be extending a cause of action from Bivens v. Six Unknown Federal Agents to probationary federal employees who otherwise will not receive meaningful review of their constitutional claims.

Keywords: Bivens, Elgin, Judicial Review