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SUPREME COURT OF THE UNITED STATES
_________________
No. 16–399
_________________
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 v.
Solis, 568 U. S. 41, 46 (2012) ;
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, 15 (2012) (emphasizing need for “clear guidance about
the proper forum for [an] employee’s [CSRA] claims”). Cf. Fed. Rule
Civ. Proc. l.
I
A
The CSRA “establishes a framework for
evaluating personnel actions taken against federal employees.”
Kloeckner v.
Solis, 568 U. S. 41, 44 (2012) .
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. See 5 U. S. C. §7702(a)(1);
Kloeckner, 568 U. S., at 44.
In
Kloeckner, 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.
As
Kloeckner 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?
B
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).
II
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, 537 (1995) . 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.
A
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 v.
Hood, 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.,
Downey v.
Runyon, 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.
B
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 v.
Russell, 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.,
Davenport 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.,
Donahue 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
v.
Fausto, 484 U. S. 439 –445 (1988).[
12] 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.