On the contrary, that court has said that if a colorable constitutional claim were presented, it would have to address the issue. See Riggin v. Office of Senate Fair Emp't Practices, 61 F.3d 1563, 1570 (Fed. Cir. 1995) (discussing Webster v. Doe, 486 U.S. 592, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988)); Brockmann v. Deft of the Air Force, 27 F.3d 544, 5467 (Fed. Cir. 1994) (same). And if it mistakenly held otherwise, the remedy would be on certiorari to the Supreme Court.
Capitol Police officers are law enforcement officers. See Riggin v. Office of Senate Fair Employment Practices, 61 F.3d 1563, 1568 (D.C. Cir 1995) (concluding that "[i]t would make no sense" to distinguish Capitol Police from "other law enforcement officers" for purposes of the age discrimination statute). Maximum age limits for federal law enforcement personnel are a recognized exception to the ADEA's prohibition on age discrimination.
It often is presumed that agencies do not have such power. Id. See also Cooper v. Eugene School District No. 4J, 301 Or. 358, 363-65, 723 P.2d 298 (1986) (reviewing authorities); Riggin v. Office of Senate Fair Employment Practices, 61 F.3d 1563, 1569-70 (Fed. Cir. 1995). The issue sometimes arises in the context or whether judicial review of agency action is foreclosed entirely; the courts have held that where the claim presents constitutional issues the right to judicial review is presumed notwithstanding that the matter has otherwise been committed to an agency or there is no express right to judicial review.
And permitting the hearing board to address constitutional claims that arise in the course of the board's performance of its statutory duties does not foreclose subsequent judicial review of those claims. Riggin v. Office of Senate Fair Employment Practices, 61 F.3d 1563, 1569-1570 (Fed. Cir. 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 773, 133 L.Ed.2d 726 (1996). PERC cannot shut its eyes to constitutional issues that arise in the course of administrative proceedings it conducts.
Under Supreme Court and circuit precedent, agencies generally do not have authority to declare a statute unconstitutional. See Oestereich v. Selective Serv. Sys. Local Bd. No. 11 , 393 U.S. 233, 242, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968) (Harlan, J., concurring in result) ("Adjudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies."); Thunder Basin Coal Co. v. Reich , 510 U.S. 200, 215, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994) (agreeing with Justice Harlan's statement in Oestereich ); Riggin v. Off. of Senate Fair Emp. Pracs. , 61 F.3d 1563, 1569 (Fed. Cir. 1995) (noting the "general rule that administrative agencies do not have jurisdiction to decide the constitutionality of congressional enactments"). It follows that constitutional challenges to the statute under which the agency operates need not be raised before the agency.
However, § 1301 does not refer to the Covenant or to FICA taxation. Appellants' argument is in essence an assertion that § 1301 repealed by implication express terms of the Covenant, including the application of FICA to the CNMI. Construing a statute as a repeal by implication is generally disfavored, Riggin v. Office of Senate Fair Emp't Practices, 61 F.3d 1563, 1566 (Fed. Cir. 1995), and "where two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective,'" Cathedral Candle Co. v. U.S. Int'l Trade Comm'n, 400 F.3d 1352, 1365 (Fed. Cir. 2005) (quoting Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984)). Because Appellants have not identified a "clearly expressed congressional intention" to alter the substitution of the CNMI for Guam in the Covenant, we conclude that the amendments to 42 U.S.C. § 1301 are not pertinent to FICA tax policy in the CNMI.
We agree with Ingalls and can resolve this "straight forward and simple" legal issue without remand. See Riggin v. Office of Senate Fair Employment Practices, 61 F.3d 1563, 1571 (Fed. Cir. 1995), cert. denied, 116 S.Ct. 773 (1996) (holding that this court may resolve questions of law within our jurisdiction that have been presented to, but not decided by, the board). As we recently stated in connection with the corresponding DAR provision: "By its terms, DAR Section(s) 15-205.
First, judicial economy would be undermined, rather than promoted, if this court were to require the agency to revisit the issue. See Riggin v. Office of Senate Fair Emp't Practices, 61 F.3d 1563, 1571 (Fed.Cir.1995) (concluding that remand of a “straightforward” constitutional issue “would not justify the time and effort involved ...”). Second, judicial review would not be aided by any additional development of the factual record, as the question presented is primarily a legal one that can be answered by the record already developed.
The Library Police do not have a mandatory retirement age, but a longstanding statutory provision mandates that all members of the Capitol Police "be separated from the service" upon reaching age fifty-seven with a possibility of extension to age sixty. 5 U.S.C. § 8335(c); see also Riggin v. Office of Senate Fair Employment Practices, 61 F.3d 1563 (Fed. Cir. 1995) (describing the history of mandatory retirement for federal law enforcement officers and noting that the current provision regarding Capitol Police officers was enacted in 1994 (citing Pub.L. No. 103-283, § 307, 108 Stat. 1423, 1441-42 (1994))). A Library Police officer who becomes a civilian employee, rather than an officer, of the Capitol Police may continue to serve past the mandatory retirement age if he is not eligible for a retirement annuity upon reaching it. Merger Act § 2(b)(2), 121 Stat. at 2547.
The Library Police do not have a mandatory retirement age, but a longstanding statutory provision mandates that all members of the Capitol Police "be separated from the service" upon reaching age fifty-seven with a possibility of extension to age sixty. 5 U.S.C. § 8335(c); see also Riggin v. Office of Senate Fair Employment Practices, 61 F.3d 1563 (Fed. Cir. 1995) (describing the history of mandatory retirement for federal law enforcement officers and noting that the current provision regarding Capitol Police officers was enacted in 1994 (citing Pub.L. No. 103-283, § 307, 108 Stat. 1423, 1441-42 (1994))). A Library Police officer who becomes a civilian employee, rather than an officer, of the Capitol Police may continue to serve past the mandatory retirement age if he is not eligible for a retirement annuity upon reaching that age.