In this case, however, the majority relies on a very weak set of inferences to strip the courts of their original jurisdiction overpetitioners’ claims. Because I believe Congress would have been very surprised to learn that it implied thisresult when it passed the CSRA, I respectfully dissent.
.Justice Alito, joined (in a curious lineup) by Justices Ginsburg and Kagan in dissent in Elgin v. Dept. of Treasury. Not a fan of implied jurisdiction stripping.
Finally, the majority contends that channeling facial constitutional claims through the Board is necessary toprovide “clear guidance about the proper forum for theemployee’s claims at the outset of the case.” Ante, at 11. 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 bebrought 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, 14 MSPR, at 406.