NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
ANTHONY W. PERRY, PETITIONER v.
MERIT SYSTEMS PROTECTION BOARD
on writ of certiorari to the united states court of appeals for the district of columbia circuit
[June 23, 2017]
Justice Ginsburg delivered the opinion of the Court.
This case concerns the proper forum for judicial review when a federal employee complains of a serious adverse employment action taken against him, one falling within the compass of the Civil Service Reform Act of 1978 (CSRA),
5 U. S. C. §1101 et seq.
, and attributes the action, in whole or in part, to bias based on race, gender, age, or disability, in violation of federal antidiscrimination laws. We refer to complaints of that order, descriptively, as “mixed cases.”
In the CSRA, Congress created the Merit Systems Protection Board (MSPB or Board) to review certain serious personnel actions against federal employees. If an employee asserts rights under the CSRA only, MSPB decisions, all agree, are subject to judicial review exclusively in the Federal Circuit. §7703(b)(1). If the employee asserts no civil-service rights, invoking only federal antidiscrimination law, the proper forum for judicial review, again all agree, is a federal district court, see Kloeckner
568 U. S. 41,
; the Federal Circuit, while empowered to review MSPB decisions on civil-service claims, §7703(b)(1)(A), lacks authority over claims arising under antidiscrimination laws, see §7703(c).
When a complaint presents a mixed case, and the MSPB dismisses it, must the employee resort to the Federal Circuit for review of any civil-service issue, reserving claims under federal antidiscrimination law for discrete district court adjudication? If the MSPB dismisses a mixed case on the merits, the parties agree, review authority lies in district court, not in the Federal Circuit. In Kloeckner
, 568 U. S., at 50, 56, we held, the proper review forum is also the district court when the MSPB dismisses a mixed case on procedural grounds, in Kloeckner
itself, failure to meet a deadline for Board review set by the MSPB. We hold today that the review route remains the same when the MSPB types its dismissal of a mixed case as “jurisdictional.” As in Kloeckner
, we are mindful that review rights should be read not to protract proceedings, increase costs, and stymie employees,[1
] but to secure expeditious resolution of the claims employees present. See Elgin
v. Department of Treasury
567 U. S. 1,
(emphasizing need for “clear guidance about the proper forum for [an] employee’s [CSRA] claims”). Cf. Fed. Rule Civ. Proc. l.
The CSRA “establishes a framework for evaluating personnel actions taken against federal employees.” Kloeckner
568 U. S. 41,
. For “particularly serious” actions, “for example, a removal from employment or a reduction in grade or pay,” “the affected employee has a right to appeal the agency’s decision to the MSPB.” Ibid.
(citing §§1204, 7512, 7701). Such an appeal may present a civil-service claim only. Typically, the employee may allege that “the agency had insufficient cause for taking the action under the CSRA.” Id.,
at 44. An appeal to the MSPB, however, may also complain of adverse action taken, in whole or in part, because of discrimination prohibited by another federal statute, for example, Title VII of the Civil Rights Act of 1964,
42 U. S. C. §2000e et seq.
, or the Age Discrimination in Employment Act of 1967,
29 U. S. C. §621 et seq.
5 U. S. C. §7702(a)(1); Kloeckner
, 568 U. S., at 44.
, we explained, “[w]hen an employee complains of a personnel action serious enough to appeal to the MSPB and
alleges that the action was based on discrimination, she is said (by pertinent regulation) to have brought a ‘mixed case.’ ” Ibid.
(quoting 29 CFR §1614.302 (2012)). See also §1614.302(a)(2) (2016) (defining “mixed case appeal” as one in which an employee “alleges that an appealable agency action was effected, in whole or in part, because of discrimination”). For mixed cases, “[t]he CSRA and regulations of the MSPB and Equal Employment Opportunity Commission (EEOC) set out special procedures . . . different from those used when the employee either challenges a serious personnel action under the CSRA alone or attacks a less serious action as discriminatory.” Kloeckner
, 568 U. S., at 44–45.
detailed, the CSRA provides diverse procedural routes for an employee’s pursuit of a mixed case. The employee “may first file a discrimination complaint with the agency itself,” in the agency’s equal employment opportunity (EEO) office, “much as an employee challenging a personnel practice not appealable to the MSPB could do.” Id.
, at 45 (citing 5 CFR §1201.154(a) (2012); 29 CFR §1614.302(b) (2012)); see §7702(a)(2). “If the agency [EEO office] decides against her, the employee may then either take the matter to the MSPB or bypass further administrative review by suing the agency in district court.” Kloeckner
, 568 U. S., at 45 (citing 5 CFR §1201.154(b); 29 CFR §1614.302(d)(1)(i)); see §7702(a)(2). “Alternatively, the employee may initiate the process by bringing her case directly to the MSPB, forgoing the agency’s own system for evaluating discrimination charges.” Kloeckner
, 568 U. S., at 45 (citing 5 CFR §1201.154(a); 29 CFR §1614.302(b)); see §7702(a)(1).
Section 7702 prescribes appellate proceedings in actions involving discrimination. Defining the MSPB’s jurisdiction in mixed-case appeals that bypass an agency’s EEO office, §7702(a)(1) states in relevant part:
“[I]n the case of any employee . . . who—
“(A) has been affected by an action which the employee . . . may appeal to the [MSPB], and
“(B) alleges that a basis for the action was discrimination prohibited by [specified antidiscrimination statutes], . . .
“the Board shall, within 120 days of the filing of the appeal, decide both the issue of discrimination and the appealable action in accordance with the Board’s appellate procedures . . . .”[2
Section 7702(a)(2) similarly authorizes a mixed-case appeal to the MSPB from an agency EEO office’s decision. Then, “[i]f the MSPB upholds the personnel action (whether in the first instance or after the agency has done so), the employee again has a choice: She may request additional administrative process, this time with the EEOC, or else she may seek judicial review.” Kloeckner
, 568 U. S., at 45 (citing §7702(a)(3), (b); 5 CFR §1201.161; 29 CFR §1614.303).
Section 7703(b) designates the proper forum for judicial review of MSPB decisions. Section 7703(b)(1)(A) provides the general rule: “[A] petition to review a . . . final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit.” Section 7703(b)(2) states the exception here relevant, governing “[c]ases of discrimination subject to the provisions of [§]7702.” See Kloeckner
, 568 U. S., at 46 (“The ‘cases of discrimination’ in §7703(b)(2)’s exception . . . are mixed cases, in which an employee challenges as discriminatory a personnel action appealable to the MSPB.”). Such cases “shall be filed under [the enforcement sections of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Fair Labor Standards Act of 1938,
29 U. S. C. §201 et seq.
], as applicable.” §7703(b)(2). Those enforcement provisions “all authorize suit in federal district court.” Kloeckner
, 568 U. S., at 46 (citing, inter alia
, 42 U. S. C. §§2000e–16(c), 2000e–5(f);
29 U. S. C. §633a(c); §216(b)). Thus, if the MSPB decides against the employee on the merits of a mixed case, the statute instructs her to seek review in federal district court under the enforcement provision of the relevant antidiscrimination laws. §7703(b)(2); see Kloeckner
, 568 U. S., at 56, n. 4.[3
Federal district court is also the proper forum for judicial review, we held in Kloeckner
, when the MSPB dismissesa mixed case on procedural grounds. Id
., at 50, 56. We rested that conclusion on this syllogism: “Under §7703(b)(2), ‘cases of discrimination subject to [§7702]’ shall be filed in district court.” Id.
, at 50 (alteration in original). Further, “[u]nder §7702(a)(1), [mixed cases qualify as] ‘cases of discrimination subject to [§7702].’ ” Ibid.
(third alteration in original). Thus,
“mixed cases shall be filed in district court.” Ibid.
That syllogism, we held, holds true whether the dismissal rests on procedural grounds or on the merits, for “nowhere in the [CSRA’s] provisions on judicial review” is a distinction drawn between MSPB merits decisions and procedural rulings. Id.
, at 51.
The instant case presents this question: Where doesan employee seek judicial review when the MSPB dis-misses her civil-service case alleging discrimination neither on the merits nor on a procedural ground, but for lack of jurisdiction?
Anthony Perry worked at the U. S. Census Bureau until 2012. 829 F. 3d 760, 762 (CADC 2016). In 2011, Perry received notice that he would be terminated because of spotty attendance. Ibid.
Later that year, Perry and the Bureau reached a settlement in which Perry agreed to a 30-day suspension and early retirement. Ibid.
The agreement required Perry to dismiss discrimination claims he had separately filed with the EEOC. Ibid.
After retiring, Perry appealed his suspension and retirement to the MSPB. Ibid.
He alleged discrimination on grounds of race, age, and disability, as well as retaliation by the Bureau for his prior discrimination complaints. Ibid.
The settlement, he maintained, did not stand in the way, because the Bureau coerced him into signing it. Ibid.
An MSPB administrative law judge (ALJ) eventually determined that Perry had failed to prove that the settlement was coerced. Perry
v. Department of Commerce
, No. DC–0752–12–0486–B–1 etc. (Dec. 23, 2013) (initial decision), App. to Pet. for Cert. 32a, 47a. Presuming Perry’s retirement to be voluntary, the ALJ dismissed his case. Id.
, at 33a, 47a. Voluntary actions are not appealable to the MSPB, the ALJ observed, hence, the ALJ concluded, the Board lacked jurisdiction to entertain Perry’s claims. Id.
, at 51a.
The MSPB affirmed the ALJ’s decision. See Perry
v. Department of Commerce
, 2014 WL 5358308, *1 (Aug. 6, 2014) (final order). The settlement agreement, the Board recounted, provided that Perry would waive his Board appeal rights with respect to his suspension and retirement. Ibid.
Because Perry did not prove that the agreement was involuntary, the Board determined (in accord with the ALJ) that his separation should be deemed voluntary, hence not an adverse action subject to the Board’s jurisdiction under §7702(a)(1). Id.
, at *3–*4. If dissatisfied with the MSPB’s ruling, the Board stated in its decision, Perry could seek judicial review in the Federal Circuit. Id.
, at *4.
Perry instead filed a pro se
petition for review in the D. C. Circuit. 829 F. 3d, at 763. The court ordered jurisdictional briefing and appointed counsel to argue forPerry. Ibid.
By the time the court heard argument, the parties had agreed that the D. C. Circuit lacked jurisdiction, but disagreed on whether the proper forum for judicial review was the Federal Circuit, as the Government contended, or federal district court, as Perry maintained. Ibid.
The D. C. Circuit held that the Federal Circuit had jurisdiction over Perry’s petition and transferred his case to that court under
28 U. S. C. §1631. 829 F. 3d, at 763. The court’s disposition was precedent-bound: In a prior decision, Powell
v. Department of Defense
, 158 F. 3d 597, 598 (1998), the D. C. Circuit had held that the Federal Circuit is the proper forum for judicial review of MSPB decisions dismissing mixed cases “on procedural or threshold grounds.” See 829 F. 3d, at 764, 767–768. Notably, Powell
ranked as a “procedural or threshold matter” “the Board’s view of its jurisdiction.” 158 F. 3d, at 599 (internal quotation marks omitted).
The D. C. Circuit rejected Perry’s argument that Powell
was undermined by this Court’s intervening decision in Kloeckner
, which held MSPB procedural dispositions of mixed cases reviewable in district court. 829 F. 3d, at 764–768. Kloeckner
, the D. C. Circuit observed, repeatedly tied its decision to dismissals on “procedural grounds,” 568 U. S., at 44, 46, 49, 52, 54, 55. See 829 F. 3d, at 765. Jurisdictional dismissals differ from procedural dismissals, the D. C. Circuit concluded, given the CSRA’s reference to mixed cases as those “which the employee . . . may appeal
to the [MSPB].” Id.
, at 766–767 (quoting §7702(a)(1)(A); emphasis added). A jurisdictional dismissal, the court said, rests on the Board’s determination that the employee may not
appeal his case to the MSPB. Id
., at 766–767. In contrast, a dismissal on procedural grounds, e.g.
, untimely resort to the MSPB, leaves the employee still “affected by an action which [she] may appeal tothe MSPB.” Ibid.
(quoting §7702(a)(1)(A); alteration in original).
We granted certiorari to review the D. C. Circuit’s decision, 580 U. S. ___ (2017), which accords with the Federal Circuit’s decision in Conforto
v. Merit Systems Protection Bd.,
713 F. 3d 1111 (2013).
Federal employees, the Government acknowledges, have a right to pursue claims of discrimination in violation of federal law in federal district court. Nor is there any doubt that the Federal Circuit lacks authority to adjudicate such claims. See §7703(c) (preserving “right to have the facts subject to trial de novo by the reviewing court” in any “case of discrimination” brought under §7703(b)(2)). The sole question here disputed: What procedural route may an employee in Perry’s situation take to gain judicial review of the MSPB’s jurisdictional disposition of a complaint that alleges adverse action taken under the CSRA in whole or in part due to discrimination proscribed by federal law?
The Government argues, and the dissent agrees, that employees, situated as Perry is, must split their claims, appealing MSPB nonappealability rulings to the Federal Circuit while repairing to the district court for adjudication of their discrimination claims. As Perry sees it, one stop is all he need make. Exclusively competent to adjudicate “[c]ases of discrimination,” §7703(b)(2), the district court alone can resolve his entire complaint, Perry urges; the CSRA, he maintains, forces no bifurcation of his case.
Section 7702(a)(1), the Government contends, marks a case as mixed only if the employee “has been affected by an action which the employee . . . may appeal to the [MSPB].” Brief for Respondent 15, 17–19, 21. An MSPB finding of nonappealability removes a case from that category, the Government asserts, and hence, from the purview of “[c]ases of discrimination” described in §7703(b)(2). Id
., at 21. Only this reading of the CSRA’s provisions on judicial review—one ordering Federal Circuit review of any and all MSPB appealability determinations—the Government maintains, can ensure nationwide uniformity in answering questions arising under the CSRA. Id.
, at 26–32.
Perry emphasizes in response that §7702(a)(1)(A)’s language, delineating cases in which an employee “has been affected by an action which the employee . . . may appeal to the [MSPB],” is not confined to cases an em-ployee may successfully
appeal to the Board. Brief for Peti-tioner 19. The MSPB’s adverse ruling on the merits of his claim that the settlement was coerced, Perry argues, “did not retroactively divest the MSPB of jurisdiction to render that decision.” Id.
, at 21. The key consideration, according to Perry, is not what the MSPB determined about appealability; it is instead the nature of an employee’s claim
that he had been “affected by an action [appealable] to the [MSPB]” (here, suspension for more than 14 days and involuntary removal, see §7512(1), (2)). See id
., at 11, 23–24. Perry draws support for this argument from our recognition that “a party [may] establish jurisdiction at the outset of a case by means of a nonfrivolous assertion of jurisdictional elements,” Jerome B. Grubart, Inc.
v. Great Lakes Dredge & Dock Co.
513 U. S. 527,
. See Brief for Petitioner 21–22.
Perry, we hold, advances the more sensible reading of the statutory prescriptions. The Government’s procedure-jurisdiction distinction, we conclude, is no more tenable than “the merits-procedure distinction” we rejected in Kloeckner
, 568 U. S., at 51.
As just noted, a nonfrivolous allegation of jurisdiction generally suffices to establish jurisdiction upon initiation of a case. See Jerome B. Grubart, Inc.
, 513 U. S., at 537. See also Bell
327 U. S. 678
–683 (1946) (To invoke federal-question jurisdiction, allegations in a complaint must simply be more than “insubstantial or frivolous,” and “[i]f the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction.”). So too here: whether an employee “has been affected by anaction which [she] may appeal to the [MSPB],” §7702(a) (1)(A), turns on her well-pleaded allegations. Kloeckner
, EEOC regulations, and Courts of Appeals’ decisions are corroborative.
We announced a clear rule in Kloeckner
: “[M]ixed cases shall be filed in district court.” 568 U. S., at 50. An employee brings a mixed case, we explained, when she “complains of a personnel action serious enough to appeal to the MSPB,” e.g.
, suspension for more than 14 days, §7512(2), “and alleges that the action was based on discrimination.” Id.,
at 44 (emphasis deleted). The key to district court review, we said, was the employee’s “clai[m]
that an agency action appealable to the MSPB violates an antidiscrimination statute listed in §7702(a)(1).” Id.
, at 56 (emphasis added).
EEOC regulations, see supra
, at 3, are in accord: The defining feature of a “mixed case appeal,” those regulations instruct, is the employee’s “alleg[ation]
that an appealable agency action was effected, in whole or in part, because of discrimination.” 29 CFR §1614.302(a)(2) (2016) (emphasis added). Several Courts of Appeals have similarly described mixed-case appeals as those alleging
an adverse action subject to MSPB jurisdiction taken, in whole or in part, because of unlawful discrimination. See, e.g.
, 160 F. 3d 139, 143 (CA2 1998) (“Mixed appeals to the MSPB are those appeals alleging
an appealable action affected in whole or in part by prohibited discrimination.” (emphasis added)); Powell
, 158 F. 3d, at 597 (defining mixed-case appeal as “an appeal alleging
both a Board-jurisdictional agency action and a claim of unlawful discrimination” (emphasis added)).See also Conforto
, 713 F. 3d, at 1126–1127, n. 5 (Dyk, J., dissenting).[4
Because Perry “complain[ed] of a personnel action serious enough to appeal to the MSPB” (in his case, a 30-day suspension and involuntary removal, see supra
, at 6; §7512(1), (2)) and “allege[d] that the [personnel] action was based on discrimination,” he brought a mixed case. Kloeckner
, 568 U. S., at 44.[5
] Judicial review of such a case lies in district court. Id.
, at 50, 56.
The Government rests heavily on a distinction between MSPB merits and procedural decisions, on the one hand, and the Board’s jurisdictional rulings, on the other.[6
] The distinction has multiple infirmities.
“If Congress had wanted to [bifurcate judicial review,] send[ing] merits decisions to district court and procedural dismissals to the Federal Circuit,” we observed in Kloeckner
, “it could just have said so.” Id.
, at 52. The same observation could be made about bifurcating judicial review here, sending the MSPB’s merits and procedural decisions to district court, but its jurisdictional dismissals to the Federal Circuit.[7
The Government’s attempt to separate jurisdictional dismissals from procedural dismissals is newly devised. In Kloeckner
, the Government agreed with the employee that there was “no basis” for a procedure-jurisdiction distinction. Brief for Respondent, O. T. 2012, No. 11–184, p. 25, n. 3; see Reply to Brief in Opposition, O. T. 2012, No. 11–184, pp. 1–2 (stating employee’s agreement with the Government that procedural and jurisdictional dismissals should travel together). Issues of both kinds, the Government there urged, should go to the Federal Circuit. Drawing such a distinction, the Government observed, would be “difficult and unpredictable.” Brief in Opposition in Kloeckner
, O. T. 2012, No. 11–184, p. 15 (internal quotation marks omitted). Now, in light of our holding in Kloeckner
that procedural dismissals should go to district court, the Government has changed course, contending that MSPB procedural and jurisdictional dismissals should travel different paths.[8
A procedure-jurisdiction distinction for purposes of determining the court in which judicial review lies, as both parties recognized in Kloeckner
, would be perplexing and elusive. If a 30-day suspension followed by termination becomes nonappealable to the MSPB when the Board credits a release signed by the employee, one may ask why a determination that the employee complained of such adverse actions (suspension and termination) too late, i.e.
, after a Board-set deadline, does not similarly render the complaint nonappealable. In both situations, the Board disassociates itself from the case upon making a threshold determination. This Court, like others, we note, has sometimes wrestled over the proper characterization of timeliness questions. Compare Bowles
551 U. S. 205
–211, 215 (2007) (timely filing of notice of appeal in civil cases is “jurisdictional”), with id.
, at 217–219 (Souter, J., dissenting) (timeliness of notice of appeal is a procedural issue).
Just as the proper characterization of a question as jurisdictional rather than procedural can be slippery, the distinction between jurisdictional and merits issues is not inevitably sharp, for the two inquiries may overlap. See Shoaf
v. Department of Agriculture
, 260 F. 3d 1336, 1341 (CA Fed. 2001) (“recogniz[ing] that the MSPB’s jurisdiction and the merits of an alleged involuntary separation are inextricably intertwined” (internal quotation marks omitted)). This case fits that bill. The MSPB determined that it lacked jurisdiction over Perry’s civil-service claims on the ground that he voluntarily released those claimsby entering into a valid settlement with his employing agency, the Census Bureau. See App. to Pet. for Cert. 27a.[9
] But the validity of the settlement is at the heart of the dispute on the merits
of Perry’s complaint. In essence, the MSPB ruled that it lacked jurisdiction because Perry’s claims fail on the merits. See Shoaf
, 260 F. 3d, at 1341 (If it is established that an employee’s “resignation or retirement was involuntary and thus tantamount to forced removal,” then “not only [does the Board] ha[ve] jurisdiction, but also the employee wins on the merits and is entitled to reinstatement.” (internal quotation marks omitted)). See also Conforto
, 713 F. 3d, at 1126 (Dyk, J., dissenting) (“[I]t cannot be that [the Federal Circuit] lack[s] jurisdiction to review the ‘merits’ of mixed cases but nevertheless may review ‘jurisdictional’ issues that are identical to the merits . . . .”).[10
Distinguishing between MSPB jurisdictional rulings and the Board’s procedural or substantive rulings for purposes of allocating judicial review authority between district court and the Federal Circuit is problematic for a further reason: In practice, the distinction may be unworkable. The MSPB sometimes rules on alternate grounds, one typed “jurisdictional,” another either procedural or substantive. See, e.g.
v. Postal Service
, 97 MSPR 417 (2004) (dismissing “for lack of jurisdiction and
as untimely filed” (emphasis added)). To which court does appeal lie? Or, suppose that the Board addresses a complaint that encompasses multiple claims, dismissing some for want of jurisdiction, others on procedural or substantive grounds. See, e.g.
v. Postal Service
, 2006 WL 859448, *1, *3 (ED Pa., Mar. 31, 2006). Tellingly, the Government is silent on the proper channeling of appeals in such cases.
Desirable as national uniformity may be,[11
] it should not override the expense, delay, and inconvenience of requiring employees to sever inextricably related claims, resorting to two discrete appellate forums, in order to safeguard their rights. Perry’s comprehension of the complex statutory text, we are persuaded, best serves “[t]he CSRA’s objective of creating an integrated scheme of review[, which] would be seriously undermined” by “parallel litigation regarding the same agency action.” Elgin
, 567 U. S., at 14. See also United States
484 U. S. 439
] Perry asks us not to “tweak” the statute, see post
, at 1, but to read it sensibly, i.e.
, to refrain from reading into it the appeal-splitting bifurcation sought by the Government. Accordingly, we hold: (1) the Federal Circuit is the proper review forum when the MSPB disposes of complaints arising solely under the CSRA; and (2) in mixed cases, such as Perry’s, in which the employee (or former employee) complains of serious adverse action prompted, in whole or in part, by the employing agency’s violation of federal antidiscrimination laws, the district court is the proper forum for judicial review.
* * *
For the reasons stated, the judgment of the United States Court of Appeals for the District of Columbia Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.