Perry v. Merit Systems Protection Board,
582 U.S. ___ (2017)

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Justia Opinion Summary

Under the Civil Service Reform Act, the Merit Systems Protection Board (MSPB) has the power to review certain personnel actions against federal employees. If an employee asserts rights under the CSRA only, MSPB decisions are subject to judicial review exclusively in the Federal Circuit, 5 U.S.C. 7703(b)(1). If the employee invokes only federal antidiscrimination law, the proper forum is federal district court. An employee who complains of a serious adverse employment action and attributes the action, in whole or in part, to bias based on race, gender, age, or disability brings a “mixed case.” When the MSPB dismisses a mixed case on the merits or on procedural grounds, review authority lies in district court, not the Federal Circuit. Perry received notice that he would be terminated from his Census Bureau employment for spotty attendance. Perry agreed to early retirement. The settlement required Perry to dismiss discrimination claims he had filed separately with the EEOC. After retiring, Perry appealed to the MSPB, alleging discrimination based on race, age, and disability, and retaliation for his discrimination complaints. He claimed the settlement had been coerced. Presuming Perry’s retirement to be voluntary, an ALJ dismissed his case for lack of jurisdiction. The MSPB affirmed, stating that Perry could seek review in the Federal Circuit. Perry instead sought review in the D.C. Circuit, which transferred the case to the Federal Circuit. The Supreme Court reversed. The proper review forum when the MSPB dismisses a mixed case on jurisdictional grounds is district court. A nonfrivolous claim that an agency action appealable to the MSPB violates an antidiscrimination statute listed in section 7702(a)(1) suffices to establish district court jurisdiction. Had Congress wanted to bifurcate judicial review, sending merits and procedural decisions to district court and jurisdictional dismissals to the Federal Circuit, it could have said so.

Prior History
  • Syllabus  | 
  • Opinion (Ruth Bader Ginsburg)  | 
  • Dissent (Gorsuch)

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 .

SUPREME COURT OF THE UNITED STATES

Syllabus

PERRY v. MERIT SYSTEMS PROTECTION BOARD

certiorari to the united states court of appeals for the district of columbia circuit

No. 16–399. Argued April 17, 2017—Decided June 23, 2017

Under the Civil Service Reform Act of 1978 (CSRA), the Merit Systems Protection Board (MSPB or Board) has the power to review certain serious personnel actions against federal employees. If an employee asserts rights under the CSRA only, MSPB decisions are subject to judicial review exclusively in the Federal Circuit. 5 U. S. C. §7703(b)(1). If the employee invokes only federal antidiscrimination law, the proper forum for judicial review is federal district court. See Kloeckner v. Solis, 568 U. S. 41 .

An employee who complains of a serious adverse employment action and attributes the action, in whole or in part, to bias based on race, gender, age, or disability brings a “mixed case.” When the MSPB dismisses a mixed case on the merits or on procedural grounds, review authority lies in district court, not the Federal Circuit. Id., at 50, 56. This case concerns the proper forum for judicial review when the MSPB dismisses such a case for lack of jurisdiction.

Anthony Perry received notice that he would be terminated from his employment at the U. S. Census Bureau for spotty attendance. Perry and the Bureau reached a settlement in which Perry agreed to a 30-day suspension and early retirement. The settlement also required Perry to dismiss discrimination claims he had filed separately with the Equal Employment Opportunity Commission (EEOC). After retiring, Perry appealed his suspension and retirement to the MSPB, alleging discrimination based on race, age, and disability, as well as retaliation by the Bureau for his prior discrimination complaints. The settlement, he maintained, did not stand in the way, because the Bureau had coerced him into signing it. But an MSPB administrative law judge (ALJ) determined that Perry had failed to prove that the settlement was coerced. Presuming Perry’s retirement to be voluntary, the ALJ dismissed his case. Because voluntary actions are not appealable to the MSPB, the ALJ observed, the Board lacked jurisdiction to entertain Perry’s claims. The MSPB affirmed, deeming Perry’s separation voluntary and therefore not subject to the Board’s jurisdiction. If dissatisfied with the MSPB’s ruling, the Board stated, Perry could seek judicial review in the Federal Circuit. Perry instead sought review in the D. C. Circuit, which, the parties later agreed, lacked jurisdiction. The D. C. Circuit held that the proper forum was the Federal Circuit and transferred the case there. Kloeckner did not control, the court concluded, because it addressed dismissals on procedural grounds, not jurisdictional grounds.

Held: The proper review forum when the MSPB dismisses a mixed case on jurisdictional grounds is district court. Pp. 9–17.

(a) The Government argues that employees must split their mixed claims, appealing MSPB nonappealability rulings to the Federal Circuit while repairing to the district court to adjudicate their discrimination claims. Perry counters that the district court alone can resolve his entire complaint. Perry advances the more sensible reading of the statutory prescriptions.

Kloeckner announced a clear rule: “[M]ixed cases shall be filed in district court.” 568 U. S., at 50; see id., at 56. The key to district court review is 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). Such a nonfrivolous allegation of jurisdiction suffices to establish district court jurisdiction. EEOC regulations are in accord, and 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. Perry, who “complain[ed] of a personnel action serious enough to appeal to the MSPB” and “allege[d] that the [personnel] action was based on discrimination,” brought a mixed case, and district court jurisdiction was therefore proper. Pp. 9–12.

(b) The Government’s proposed distinction—between MSPB merits and procedural decisions, on the one hand, and the Board’s jurisdictional rulings, on the other—has multiple infirmities. Had Congress wanted to bifurcate judicial review, sending merits and procedural decisions to district court and jurisdictional dismissals to the Federal Circuit, it could have said so. See Kloeckner, 568 U. S., at 52. The Government’s newly devised attempt to distinguish jurisdictional dismissals from procedural dismissals is a departure from its position in Kloeckner. Such a distinction, as both parties recognized in Kloeckner, would be perplexing and elusive. The distinction between jurisdiction and the merits is also not inevitably sharp, for the two inquiries may overlap. And because the MSPB may issue rulings on alternate or multiple grounds, some “jurisdictional,” others procedural or substantive, allocating judicial review authority based on a separate rule for jurisdictional rulings may prove unworkable in practice. Perry’s comprehension of the complex statutory text, in contrast, 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 v. Department of Treasury, 567 U. S. 1 . Pp. 12–17.

829 F. 3d 760, reversed and remanded.

Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, Alito, Sotomayor, and Kagan, JJ., joined. Gorsuch, J., filed a dissenting opinion, in which Thomas, J., joined.

Primary Holding

A federal district court has the authority to review the dismissal of a case by the Merit Systems Protection Board that involves a mixture of federal anti-discrimination and Civil Service Reform Act claims.

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