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Perry v. Merit Systems Protection Board

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Supreme Court of the United States
Perry v. Merit Systems Protection Board
Reference: 16-399
Issue: Employment discrimination
Term: 2016
Important Dates
Argued: April 17, 2017
Decided: June 23, 2017
Outcome
D.C. Circuit Court of Appeals reversed and remanded
Vote
7-2 to reverse and remand
Majority
Chief Justice John G. Roberts • Anthony Kennedy • Ruth Bader Ginsburg • Stephen Breyer • Samuel Alito • Sonia Sotomayor • Elena Kagan
Dissenting
Clarence Thomas • Neil Gorsuch


Perry v. Merit Systems Protection Board is a case argued during the October 2016 term of the U.S. Supreme Court. Argument in the case was held on April 17, 2017. The case came on a writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit. On June 23, 2017, in an opinion by Justice Ruth Bader Ginsburg, the court reversed and remanded the judgment of the D.C. Circuit. Justice Neil Gorsuch authored his first dissenting opinion as a Supreme Court justice in this case. His dissent was joined by Justice Clarence Thomas.

In this case, the court held that when the Merit Systems Protection Board (MSPB) dismisses a mixed case on jurisdictional grounds, the proper venue for review of the MSPB's decision is in federal district court and not the United States Court of Appeals for the Federal Circuit. Mixed cases are those in which a federal employee raises a claim of discrimination as the rationale for an adverse employment action.

HIGHLIGHTS
  • The case: While most appeals from decisions of the Merit Systems Protection Board (Board) go to the United States Court of Appeals for the Federal Circuit, federal law provides that appeals based on a claim of discrimination must be heard in a federal district court. Perry argued that his appeal, which carried a discrimination claim, should be heard in district court based on the U.S. Supreme Court's 2012 decision in Kloeckner v. Solis. The D.C. Circuit, based on its 1998 holding in Powell v. Department of Defense, disagreed, noting that the Board dismissed Perry's action for lack of jurisdiction and that all jurisdictional challenges from the Board's actions must be further litigated before the Federal Circuit.
  • The issue: To which court must a jurisdictional challenge to a decision by the Merit Systems Protection Board be presented: a federal district court or the United States Court of Appeals for the Federal Circuit?
  • The outcome: On June 23, 2017, the court reversed and remanded the judgment of the D.C. Circuit in holding that appeals of dismissals by the Merit Systems Protection Board on jurisdictional grounds must be litigated in federal district court.


    • In brief: Federal employees can appeal significant adverse employment actions to the Merit Systems Protection Board (Board). In most instances, appeals of the Board's actions are heard by the Federal Circuit. When an appeal attends a claim of discrimination under federal law, however, those appeals must be heard in federal district court. Here, a former federal employee sought to have his appeal of an adverse Board action transferred to a federal district court based on the U.S. Supreme Court's 2012 decision in Kloeckner v. Solis. The D.C. Circuit, based on its 1998 holding in Powell v. Department of Defense, disagreed, noting that the Board dismissed Perry's action for lack of jurisdiction and that all jurisdictional challenges from the Board's actions must be further litigated before the Federal Circuit. Argument in the case was held on April 17, 2017.[1]

    You can review the D.C. Circuit's opinion here.[2]

    Click on the tabs below to learn more about this Supreme Court case.

    Case

    Background

    This was a case about the appropriate venue to challenge decisions made by the Merit Systems Protection Board (Board) when the Board dismisses an appeal for lack of jurisdiction.[3]

    When a federal agency takes a significant adverse employment action against an employee, either through terminating the employee or suspending the employee for longer than 14 days, the employee may appeal the agency's decision to the Merit Systems Protection Board (Board). Should the Board rule against the employee, an employee may appeal that decision in federal court. For most appeals, the decision of the Board is subject to review by the United States Court of Appeals for the Federal Circuit. However, federal law provides an exception in cases where an employee alleges the adverse employment action was the result of discrimination; in such a case, the law provides that review of the Board's actions will be adjudicated in a federal district court. Cases falling within the exception apply to an employee who claims discrimination under the Civil Rights Act, the Age Discrimination in Employment Act, or the Fair Labor Standards Act of 1938.[4] Cases involving both an adverse employment action and a claim of discrimination under federal law are referred to as mixed cases.[3]

    Anthony Perry was a federal employee until 2012. In 2011, the federal agency for whom Perry worked, the Census Bureau, and Perry entered into a settlement agreement. The disciplinary action pending against Perry for various attendance and timekeeping documentation issues was to be dismissed in exchange for Perry taking early retirement after completing a 30-day suspension. The settlement also required Perry to dismiss separate discrimination claims which he filed with the Equal Employment Opportunity Commission. Perry retired in 2012 per the settlement agreement. Perry subsequently challenged his suspension and retirement. An administrative law judge (ALJ) found that the settlement between Perry and the Census Bureau was reached voluntarily and that Perry's claims of coercion were without merit. Perry appealed to the Board. The Board, which generally under federal law does not have jurisdiction to review employment actions reached voluntarily between an agency and an employee, dismissed Perry's appeal for lack of jurisdiction.[3]

    Filing as pro se plaintiff, Perry filed an appeal for review of the Board's action with the D.C. Circuit. Perry filed under a federal law giving any federal court of appeals jurisdiction over adverse employment actions related to whistleblower claims. Perry was afforded amicus curiae to serve as counsel on appeal. Subsequently, all parties agreed that the whistleblower provisions were not applicable in Perry's case. The D.C. Circuit had authority under federal law, however, to transfer Perry's case to a court in which his appeal of the Board's decision could be heard. The Board claimed that the appropriate venue for transfer under 5 U.S.C. §7703 was the United States Court of Appeals for the Federal Circuit. Perry, claiming a mixed case exception under §7703, argued his appeal of the Board's action should be transferred to a federal district court instead.[3]

    Perry argued that the U.S. Supreme Court's 2012 decision in Kloeckner v. Solis governed transfer in this case. In Kloeckner, the Supreme Court held that a federal employee who presents a mixed case to the Board must subsequently challenge an adverse Board decision in federal district court, regardless of the basis for the Board's adverse decision. The D.C. Circuit, however, held that the circuit's own 1998 precedent, Powell v. Department of Defense, governed in this case. In Powell, the circuit court held that a mixed case dismissal by the Board on procedural grounds was subject to review in federal district court, but that a similar dismissal by the Board on jurisdictional grounds required review by the Federal Circuit. Here, Perry's appeal was dismissed by the Board for lack of jurisdiction. Based on Powell, the D.C. Circuit ruled that the jurisdictional dismissal by the Board of Perry's mixed case appeal must be further litigated before the Federal Circuit and not in federal district court.[3]

    Petitioner's challenge

    Anthony Perry, the petitioner, challenged the holding of the United States Court of Appeals for the District of Columbia Circuit that a review of the Merit Systems Protection Board's decision to dismiss Perry's mixed case claim for lack of jurisdiction must be further litigated before the United States Court of Appeals for the Federal Circuit and not in a federal district court.

    Certiorari granted

    On September 27, 2016, Anthony Perry, the petitioner, initiated proceedings in the Supreme Court of the United States in filing a petition for a writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit. The U.S. Supreme Court granted Perry's certiorari request on January 13, 2017. Argument in the case was held on April 17, 2017.[1]

    Arguments


    Question presented

    Question presented:

    "The Merit Systems Protection Board (MSPB) is authorized to hear challenges by certain federal employees to certain major adverse employment actions. If such a challenge involves a claim under the federal anti-discrimination laws, it is referred to as a "mixed" case. This case presents the following question:
    Whether an MSPB decision disposing of a 'mixed' case on jurisdictional grounds is subject to judicial review in district court or in the U.S. Court of Appeals for the Federal Circuit. "[1]


    Audio

    • Audio of oral argument:[5]



    Transcript

    • Transcript of oral argument:[6]

    Outcome

    Decision

    On June 23, 2017, in an opinion by Justice Ruth Bader Ginsburg, the court reversed and remanded the judgment of the D.C. Circuit. Justice Neil Gorsuch authored his first dissenting opinion as a Supreme Court justice in this case. His dissent was joined by Justice Clarence Thomas.

    In this case, the court held that when the Merit Systems Protection Board (MSPB) dismisses a mixed case on jurisdictional grounds, the proper venue for review of the MSPB's decision is in federal district court and not the United States Court of Appeals for the Federal Circuit. Mixed cases are those in which a federal employee raises a claim of discrimination as the rationale for an adverse employment action.[7]

    Opinion

    After a review of the factual and procedural history of the case, Justice Ginsburg provided the court's rationale that the Civil Service Reform Act (CSRA) does not require litigants like Perry to bring their employment and discrimination claims in separate venues. Ginsburg wrote,[7]

    “

    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 ... the district court alone can resolve his entire complaint, Perry urges; the CSRA, he maintains, forces no bifurcation of his case. ... Perry, we hold, advances the more sensible reading of the statutory prescriptions. ... 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 ...) and 'allege[d] that the [personnel] action was based on discrimination,' he brought a mixed ... Judicial review of such a case lies in district court. ...

    The Government’s attempt to separate jurisdictional dismissals from procedural dismissals is newly devised. ... 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. 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. ...

    Desirable as national uniformity may be, 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.' Perry asks us not to 'tweak' the statute ... but to read it sensibly, i.e., to refrain from reading into it the appeal-splitting bifurcation sought by the Government. [8]

    		”

    Because the D.C. Circuit held differently on the jurisdictional question than the Supreme Court did, the judgment of the D.C. Circuit was reversed and the case was remanded for additional proceedings.

    Concurring opinions

    There were no concurring opinions filed in this case.

    Dissenting opinions

    Justice Neil Gorsuch authored his first dissenting opinion as a Supreme Court justice in this case. His dissent was joined by Justice Clarence Thomas. Justice Gorsuch disagreed with the court's majority, finding that Perry did indeed petition the court to "tweak a congressional statute—just a little—so that it might (he says) work a bit more efficiently." In his view, this was not an appropriate role for the court. He wrote,[7]

    “

    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 ... 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. ... 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.[8]

    		”

    The opinion


    Filings

    The U.S. Supreme Court granted Perry's certiorari request on December 14, 2016.

    Merits filings

    Parties' briefs

    • Anthony Perry, the petitioner, filed a merits brief on February 27, 2017.
    • The Merit Systems Protection Board, the respondent, filed a merits brief on March 29, 2017.

    Amicus curiae briefs

    The following groups filed an amicus curiae brief in support of the petitioner, Anthony Perry:

    • Brief of the Metropolitan Washington Employment Lawyers Association

    Certiorari filings

    Parties' filings

    • Anthony Perry, the petitioner, filed a petition for certiorari on September 27, 2016.
    • The Merit Systems Protection Board, the respondent, filed a brief in opposition to certiorari on December 5, 2016.

    See also

    Footnotes

    1. ↑ 1.0 1.1 1.2 Supreme Court of the United States, Perry v. MSPB, January 13, 2017
    2. ↑ U.S. Court of Appeals for the District of Columbia Circuit, Anthony W. Perry v. Merit Systems Protection Board, decided July 22, 2016
    3. ↑ 3.0 3.1 3.2 3.3 3.4 Cite error: Invalid <ref> tag; no text was provided for refs named D.C.
    4. ↑ Cornell University's Legal Information Institute, "5 U.S. Code § 7703 - Judicial review of decisions of the Merit Systems Protection Board," accessed April 10, 2017
    5. ↑ Supreme Court of the United States, Perry v. Merit Systems Protection Board, argued April 17, 2017
    6. ↑ [https://www.supremecourt.gov/oral_arguments/argument_transcripts/2016/16-399_3f14.pdf Supreme Court of the United States, Perry v. Merit Systems Protection Board, argued April 17, 2017
    7. ↑ 7.0 7.1 7.2 Supreme Court of the United States, Anthony W. Perry v. Merit Systems Protection Board, June 23, 2017
    8. ↑ 8.0 8.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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