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Perry v. Merit Systems Protection Board

United States Supreme Court

June 23, 2017

ANTHONY W. PERRY, PETITIONER
v.
MERIT SYSTEMS PROTECTION BOARD

          Argued April 17, 2017

         ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

         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, 46.

         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 vol- untary, 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 reviewf, which] would be seriously undermined" by "parallel litigation regarding the same agency action." Elgin v. Department of Treasury, 567 U.S. 1, 14. 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.

          OPINION

          GINSBURG JUSTICE

         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. 1.

         I

         A

         The CSRA "establishes a framework for evaluating personnel actions taken against federal employees." Kloeckner v. Soils, 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 dismisses a 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 does an employee seek judicial review when the MSPB dismisses her civil-service case alleging discrimination neither on the merits ...


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