“In Elgin v. Department of Treasury, 567 U.S. 1 (2012), this Court held that, where the Civil Service Reform Act directs a federal employee to the Merit Systems Protection Board in connection with a personnel action, judicial review of that action must occur exclusively in the Federal Circuit. Id. at 10-21. The Court also explained that, ‘in an appeal from agency action within the MSPB’s jurisdiction,’ the Federal Circuit’s “authority to decide particular legal questions’ is not ‘derivative of the MPSB’s authority.’ Id. at 18. The Court thus held that the Federal Circuit may review constitutional challenges to personnel actions within the MSPB’s jurisdiction, whether or not the MSPB has authority to decide those challenges. Ibid.”
“When a career senior executive is removed from the Senior Executive Service (‘SES’) for ‘less than fully successful executive performance,’ the Civil Service Reform Act entitles her to ‘an informal hearing before an official designated by the Merit Systems Protection Board.’ 5 U.S.C. § 3592(a), (a)(2). In the decision below, the Federal Circuit held that the ‘informal hearing’ afforded by § 3592(a) does not permit MSPB review of a career senior executive’s removal from the SES. The court of appeals then held that, because the MSPB cannot decide the legality of such removals, the Federal Circuit cannot do so either—even with respect to constitutional challenges.”
“The question presented is:”
“Whether the Federal Circuit erred in holding that neither it nor the MSPB may review a career senior executive’s removal from the Senior Executive Service under 5 U.S.C. § 3592(a)(2).”
