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

Annotate this Case



No. 16–399



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

[June 23, 2017]

Justice Gorsuch, with whom Justice Thomas joins, dissenting.

Anthony Perry asks us to tweak a congressional statute—just a little—so that it might (he says) work a bit more efficiently. No doubt his invitation is well meaning. But it’s one we should decline all the same. Not only is the business of enacting statutory fixes one that belongs to Congress and not this Court, but taking up Mr. Perry’s invitation also seems sure to spell trouble. Look no further than the lower court decisions that have already ventured where Mr. Perry says we should follow. For every statutory “fix” they have offered, more problems have emerged, problems that have only led to more “fixes” still. New challenges come up just as fast as the old ones can be gaveled down. Respectfully, I would decline Mr. Perry’s invitation and would instead just follow the words of the statute as written.

Our case concerns the right of federal employees to pursue their employment grievances under the Civil Service Reform Act. Really, it concerns but a small aspect of that right. Everyone agrees that employees may contest certain adverse employment actions—generally serious ones like dismissals—before the Merit Systems Protection Board. See 5 U. S. C. §§7701–7702, 7512–7513. Everyone agrees, too, that employees are generally entitled to seek judicial review of the Board’s decisions. See §7703. The only question we face today is where. And on that question, the Act provides clear directions.

First, the rule. The Act says that an employee’s appeal usually “shall be filed in . . . the Federal Circuit,” §7703(b)(1)(A), which then applies a deferential, APA-style standard of review familiar to administrative law, §7703(c). No doubt this makes sense, too, for Congress established the Federal Circuit in no small part to ensure a uniform case law governs Executive Branch personnel actions and guarantees the equal treatment of civil servants without regard to geography. See United States v. Fausto, 484 U. S. 439, 449 (1988) .

Second, the exception. Congress recognized that sometimes agencies taking adverse employment actions against employees violate not just federal civil service laws, but also federal antidiscrimination laws. Usually, of course, employees who wish to pursue discrimination claims in federal district court must first exhaust those claims in proceedings before their employing agency. See, e.g., 42 U. S. C. §2000e–16(c). But the Act provides another option. Employees affected by adverse employment actions that trigger the Act’s jurisdiction may (but need not) elect to exhaust their discrimination claims before the Board. See 5 U. S. C. §7702(a). They also may ask the Board to review discrimination claims already exhausted before their employing agencies, and in this way obtain an additional layer of administrative review. See ibid. In §7702 of the Act, Congress proceeded to set forth the rules the Board must apply in reviewing these cases of discrimination. And it then said that “[c]ases of discrimination subject to the provisions of section 7702” are exempt from the default rule of Federal Circuit review and instead “shall be filed” in district court “under” specified antidiscrimination statutes like Title VII or the ADEA. §7703(b)(2). At that point, district courts are instructed to engage in de novo factfinding, §7703(c), not APA-style judicial review, just as they would in any other discrimination lawsuit.

Putting these directions together, the statutory scheme is plain. Disputes arising under the civil service laws head to the Federal Circuit for deferential review; discrimination cases go to district court for de novo review. Congress allowed employees an elective option to bring their discrimination claims to the Board, but didn’t allow this option to destroy the framework it established for the resolution of civil service questions. These rules provide straightforward direction to courts and guidance to federal employees who often proceed pro se.

These rules also tell us all we need to know to resolve our case. Construing his pro se filings liberally, Mr. Perry pursued civil service and discrimination claims before the Board without first exhausting his discrimination claim before his own agency. The Board held that it couldn’t hear Mr. Perry’s claims because he hadn’t suffered an adverse employment action sufficient to trigger its jurisdiction under the Act. Mr. Perry now seeks to contest the Board’s assessment of its jurisdiction and win a review there that so far he’s been denied. See, e.g., Brief for Petitioner 24. No doubt, too, he wants the chance to proceed on the merits before the Board for good reason: A victory there is largely unappealable by the government. See 5 U. S. C. §§7701, 7703(d); see also Brief for Respondent 34. And because the scope of the Board’s jurisdiction is a question of civil service law, Mr. Perry must go to the Federal Circuit for his answer. If that court agrees with Mr. Perry about the scope of the Board’s authority, he can return to the Board and argue the merits of his two claims. If instead the court agrees with the Board’s assessment of its powers, then Mr. Perry still hasn’t lost his chance to pursue his remaining discrimination claim, for he may seek to exhaust that claim in the normal agency channels and proceed to district court.

Mr. Perry, though, invites us to adopt a very different regime, one that would have the district court review the Board’s ruling on the scope of its jurisdiction. Having to contest Board rulings on civil service and discrimination issues in different courts, he says, is a hassle. So, he submits, we should fix the problem by allowing civil service law questions to proceed to district court whenever an employee pursues a case of discrimination before the Board. In support of his proposal, he points us to a line of lower court cases associated with Williams v. Department of Army. And there, indeed, the Federal Circuit adopted a fix much like what Mr. Perry now proposes: allowing civil service claims to tag along to district court with discrimination claims because, in its judgment, “[f]rom the standpoint of judicial economy, consideration of all issues by a single tribunal is clearly preferable.” 715 F. 2d 1485, 1490 (1983) (en banc).

Mr. Perry’s is an invitation I would run from fast. If a statute needs repair, there’s a constitutionally prescribed way to do it. It’s called legislation. To be sure, the demands of bicameralism and presentment are real and the process can be protracted. But the difficulty of making new laws isn’t some bug in the constitutional design: it’s the point of the design, the better to preserve liberty. Besides, the law of unintended consequences being what it is, judicial tinkering with legislation is sure only to invite trouble. Just consider the line of lower court authority Mr. Perry asks us to begin replicating now in the U. S. Reports. Having said that district courts should sometimes adjudicate civil service disputes, these courts have quickly and necessarily faced questions about how and when they should do so. And without any guidance from Congress on these subjects, the lower courts’ solutions have only wound up departing further and further from statutory text—and invited yet more and more questions still. A sort of rolling, case-by-case process of legislative amendment.

Take this one. Recall that the statute says that de novo standard of review applies to cases filed in district court. See 5 U. S. C. §7703(c). But everyone agrees that standard is poorly adapted to the review of administrative civil service decisions. So what’s to be done with civil service disputes that tag along to district court? Rather than see the problem as a clue things have gone awry, lower courts following Williams have suggested that maybe civil service claims should be assessed under deferential standards of review the Act prescribes only for (yes) Federal Circuit cases. And today Mr. Perry encourages us to follow suit too. See Brief for Petitioner 17, n.; Sher v. Department of Veterans Affairs, 488 F. 3d 489, 499 (CA1 2007), cert. denied, 552 U. S. 1309 (2008) .

But that’s just the beginning. The statute allows only cases “filed under” certain specified federal antidiscrimination statutes to proceed to district court. Those laws (of course) prescribe remedies to vindicate harms associated with discrimination, including equitable relief and damages. See, e.g., 29 U. S. C. §633a(c). But what remedies canor should a district court afford a plaintiff in a run-of-the-mill civil service dispute that lands there? Might a plaintiff be forced to litigate in the district court only to be told at the end that no remedial authority exists? May a district court fashion some remedy in the absence of a statutory mandate to do so? Should it only adopt APA-style remedies prescribed by the Act for (again) the Federal Circuit? Who knows.

Answer all those questions and still more arise. What happens if the Board fully remedies an employee’s discrimination claim, but rejects his simultaneously litigated civil service dispute? Should the employee go to district court with a stand-alone civil service complaint, to be nominally “filed” and adjudicated “under” a federal antidiscrimination statute? Or has by this point the case somehow transformed into one that should be sent to the Federal Circuit? Williams itself anticipated these particular problems but (notably) declined to take any stab at answering them. See 715 F. 2d, at 1491.

Still more and even curiouser questions follow. In some cases a district court will find the employee’s discrimination claim meritless. When that happens, what should the district court do with a tag along civil service claim? Some lower courts after Williams have suggested that cases like these should be transferred back to the Federal Circuit in the “interests of judicial economy.” Nater v. Riley, 114 F. Supp. 2d 17, 29 (PR 2000). But isn’t it more than a little strange that an employee (often proceeding pro se, no less) should be sent to district court only to be bounced back to the Federal Circuit—with each trip undertaken in the name of “judicial economy”?

And speaking of judicial economy, you might wonder what happened to the (no doubt efficient) policy Congress itself articulated when it declared that civil service issues should be decided by the Federal Circuit so they might be subject to a uniform body of appellate case law. See Fausto, 484 U. S., at 449; see also Elgin v. Department of Treasury, 567 U. S. 1 –14 (2012). In an effort to achieve a simulacrum of that statutory command, one Federal Circuit judge has suggested that the regional circuits hearing tag along civil service issues should defer to Federal Circuit interpretations of civil service laws, much as federal courts defer to state courts on matters of state law when sitting in diversity. See Williams, supra, at 1492–1493 (Nichols, J., concurring). Call it a sort of Erie doctrine for the Federal Circuit—if, of course, one lacking any basis in federalism, not to mention the statutory text.

By this point, you might wonder too if accepting Mr. Perry’s invitation will even wind up saving him (or those like him) any hassle at all. Not only because of all the complications that arise from accepting his invitation. But also because, regardless which court hears his case, Mr. Perry should wind up in the same place anyway. If the reviewing court (whichever court that may be) finds that the Board was wrong and it actually possessed jurisdiction over his civil service and discrimination claims, presum-ably the court will seek to send Mr. Perry back to the Board to adjudicate those claims. See Reply Brief 18 (agreeing with this point). Meanwhile, if the reviewing court concludes that the Board was right and it lacked jurisdiction over Mr. Perry’s claims, presumably the court will require him to exhaust his remaining discrimination claim in normal agency channels before litigating it in court. So even if we take up Mr. Perry’s ambitious invitation to overhaul the statute, is it even clear that we would save him and those like him any hassle at all? Or might future courts respond to this development with a yet further statutory rewrite, suggesting next that claimants should be allowed to proceed in district court on the merits of both their civil service and discrimination claims? Even where (as here) the discrimination claim remains unexhausted before any agency and the civil service claim isn’t one even the Board could hear?

Mr. Perry’s proposal for us may be seriously atextual and practically unattractive, but perhaps it has one thing going for it, he says. While we of course owe no fealty to Williams or other lower court opinions, and are free to learn from, rather than repeat, their misadventures, Mr. Perry suggests our decision in Kloeckner v. Solis, 568 U. S. 41 (2012) , requires us to rule for him. Whatever we think about the statute’s plain terms, he says, we are bound by precedent to send him to district court all the same.

But I just don’t see in Kloeckner what Mr. Perry would have us find there. This Court was not asked to decide—and did not decide—whether issues arising under the civil service laws go to district court. Rather, we were askedto answer the much more prosaic question where an employee seeking to pursue only a discrimination claim should proceed. See Pet. for Cert. in Kloeckner v. Solis, O. T. 2012, No. 11–184, p. i (“If the [Board] decides a mixed case without determining the merits of the discrimination claim, is the court with jurisdiction over that claim the Court of Appeals for the Federal Circuit or a district court?” (emphasis added)). And this Court simply (and quite rightly) responded to that question by holding that “[a] federal employee who claims that an agency action appealable to the [Board] violates an antidiscrimination statute . . . should seek judicial review in district court, not in the Federal Circuit . . . whether the [Board] decided her case on procedural grounds or instead on the merits.” Kloeckner, 568 U. S., at 56 (emphasis added). Nothing about the question presented or holding suggests that a claimant wishing to challenge a Board ruling under the civil service laws may also proceed in district court.

Mr. Perry replies that Kloeckner endorsed the idea that something called “mixed cases” should go to district court. But that term does not mean what he thinks it means. The phrase “mixed case” appears nowhere in the statute. Instead, it is but “lingo [from] the applicable regulations.” Id., at 50. And even those regulations don’t say that civil service questions may go to district court. Instead, the regulations use the term “mixed cases” to describe administrative challenges where the employee both “complains of a personnel action serious enough to appeal to [the Board] and alleges that the action was based on discrimination.Id., at 44 (second emphasis added); see also 29 CFR §1614.302(a)(2) (2016). The regulations thus simply acknowledge that some administrative matters are both sufficient to trigger the Board’s authority and raise questions addressed by federal antidiscrimination statutes. They say nothing about what goes to district court.

Neither did Kloeckner redefine the term “mixed case” in some novel way. After discussing the regulatory definition of “mixed cases,” the decision proceeds to say just this:

“Under §7703(b)(2), ‘cases of discrimination subject to [§7702]’ shall be filed in district court. Under §7702(a)(1), the ‘cases of discrimination subject to [§7702]’ are mixed cases—those appealable to the [Board] and alleging discrimination. Ergo, mixedcases shall be filed in district court.” 568 U. S., at 50 (some brackets in original; emphasis added).

In context, it seems clear that this passage only seeks to restate the statute, using the term “mixed cases” as shorthand for cases that go to district court under §7703(b)(2). And from that statute we know that only “cases of discrimination . . . filed under” certain specified federal antidiscrimination statutes go to district court—no more, no less. Nothing in this passage suggests the Court meant to rewrite a regulatory term as a tool to undo a statute.

Now, admittedly, a footnote in Kloeckner did seem to go a step farther and assume Williams’ view that civil service claims may tag along with discrimination claims to district court. Kloeckner, 568 U. S., at 55–56, n. 4. But even by its terms such an assumption wouldn’t help Mr. Perry, for he isn’t seeking to pursue a discrimination claim in district court. By his own telling, he is seeking to overturn the Board’s holding that it lacked jurisdiction to hear his administrative appeal so he might seek relief there in the first instance. And that, of course, raises only a question of civil service law. What’s more, the footnote’s discussion about Williams is no more than dicta. The footnote addressed only a policy argument from the government and said that argument failed both under Williams and for other reasons “[i]n any event.” 568 U. S., at 56, n. 4. As near as I can tell, then, Mr. Perry would have us upend a carefully crafted statutory scheme on the strength of a comment in one sentence of one footnote offered in reply to a policy argument that failed for other reasons anyway. Full respect for stare decisis does not demand so much from us. To the contrary, this Court has long made clear that where, as here, we have not “squarely addressed [an] issue, and have at most assumed [one side of it to be correct], we are free to address the issue on the merits.” Brecht v. Abrahamson, 507 U. S. 619, 631 (1993) ; see also Legal Services Corporation v. Valazquez, 531 U. S. 533, 537 (2001) (Scalia, J., dissenting) (“Judicial decisions do not stand as binding ‘precedent’ for points that were not raised, not argued, and hence not analyzed”).

Notably, even the Court today doesn’t read Kloeckner as holding that all civil service claims and issues must proceed to district court after a discrimination claim is presented to the Board. Instead, the Court says that result is justified in large measure because it will “best serv[e]” the statute’s “ ‘objective of creating an integrated scheme of review[, which] would be seriously undermined’ by ‘parallel litigation.’ ” Ante at 16 (quoting Elgin, 567 U. S., at 14). Yet, the very case the Court quotes for its account about the statute’s purpose (Elgin which, in turn, quotes Fausto) speaks of Congress’ desire to provide an “ ‘integrated scheme of administrative and judicial review’ ” for civil service disputes that “would be seriously undermined” if “employees [had] the right to challenge employing agency actions in district court across the country,” and regional district and circuit courts could pass on such matters. Elgin, supra, at 13–14 (quoting Fausto, 484 U. S., at 445). And, respectfully, the result Elgin and Fausto warned against is exactly the result the Court’s opinion seems sure to guarantee. Rather than pursue the congressional policy discussed in those cases, the Court seems more nearly headed in the opposite direction.

Beyond its claim about the statute’s purpose, the Court offers little in the way of a traditional statutory interpretation. It does not explain how the result it reaches squares with the statute’s text and structure, or grapple with the arguments presented here on those counts. The Court does not explain, for example, how exactly a civil service dispute might be said to be “filed under” a federal antidiscrimination statute, what the standard of review might apply in such a matter (nowhere discussed in the statute), or what the remedial powers of the district court could be in these circumstances. And it remains far from obvious whether the Court’s eventual answers to questions like these will wind up yielding a regime better for employees, or instead one just different or even a good deal worse.

Indeed, the only answer the Court supplies to any of the questions raised above lies in a footnote and seems telling. There, the Court instructs that Mr. Perry will not be able to pursue his discrimination claim if the district court agrees with the Board that it lacked jurisdiction over his claim. Ante, at 15, n. 10. But this will surely come as a surprise to Mr. Perry, who tells us he wants to pursue a federal discrimination claim even if it isn’t one the Board has jurisdiction to hear. And it comes as a surprise to me too, for as I’ve described and the government concedes, nothing in the statute would prevent Mr. Perry from trying to bring a discrimination claim in district court after seeking to exhaust it before his employing agency. See, e.g., Brief for Petitioner 11, 16–17, 28; Brief for Respondent 25; Tr. of Oral Arg. 17.

At the end of a long day, I just cannot find anything preventing us from applying the statute as written—or heard any good reason for deviating from its terms. Indeed, it’s not even clear how overhauling the statute as Mr. Perry wishes would advance the efficiency rationale he touts. The only thing that seems sure to follow from accepting his invitation is all the time and money litigants will spend, and all the ink courts will spill, as they work their way to a wholly remodeled statutory regime. Respectfully, Congress already wrote a perfectly good law. I would follow it.

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