shaw bransford & roth case law update

District Courts to Decide “Mixed Case” Appeals

Appeals from Merit System Protection Board jurisdictional dismissals of “mixed cases” are properly appealed to federal district court and not to the U.S. Court of Appeals for the Federal Circuit, the U.S. Supreme Court held last week.

Writing for the 7-member majority in Perry v. Merit Systems Protection Board, Justice Ginsburg acknowledged the complexity of “mixed case” law. “Mixed cases” are those in which a federal employee appeals an adverse personnel action under the Civil Service Reform Act of 1978, which the employee attributes in whole or in part to a violation of federal antidiscrimination laws. Case law was clear prior to Perry, that employee appeals solely under the CSRA and not involving antidiscrimination laws were properly reviewed in the U.S. Court of Appeals for the Federal Circuit. Conversely, employees solely invoking antidiscrimination laws are reviewed in federal district court.

In Perry, the Supreme Court held that the review route for “mixed cases” is the same for MSPB dismissals based on the merits of the case, on procedural grounds, and on jurisdictional grounds, holding that all such cases are properly reviewed by federal district court and not by the Federal Circuit.

Anthony Perry filed a series of Equal Employment Opportunity complaints against his employer, the U.S. Census. Census subsequently proposed Perry’s removal, and in August 2011, the parties entered into a settlement agreement for Perry to accept a 30-day suspension and to then retire, in exchange for releasing the Census of his EEO complaints and other claims.

After he retired, Perry filed a MSPB alleging that Census had coerced him into signing the August 2011 settlement agreement in which he released his claims, and that his proposed removal was not supported on its merits and was the product of EEO discrimination and retaliation against him.

An administrative judge of the MSPB dismissed Perry’s appeal for “lack of jurisdiction,” finding that Perry “failed to prove that he was coerced or detrimentally relied on misinformation when he agreed to settle his appeals.” The MSPB’s presidentially-appointed, Senate-confirmed panel, affirmed the administrative judge’s decision.

Perry then filed a petition for review of the MSPB’s decision, pro se, in the U.S. Court of Appeals for the D.C. Circuit, which determined it lacked jurisdiction over Perry’s appeal, making the issue whether the D.C. Circuit should transfer Perry’s case to the Federal Circuit or to federal district court. The matter was then addressed by the Supreme Court.

The government argued before the Supreme Court that Perry’s appeal must go to the Federal Circuit to review whether the MSPB correctly decided it lacked jurisdiction over Perry’s claim, before Perry’s claim could go to a district court for litigation. Perry disagreed, arguing that his claim should go straight to district court to review the MSPB’s jurisdictional issue and to adjudicate his substantive claims.

Justices expressed frustration at oral argument about the lack of statutory clarity on the matter. Representative of commentary by his colleagues, Justice Alito said, “nobody who is not a lawyer, and no ordinary lawyer could read these statutes and figure out what they are supposed to do,” and subsequently asked, “[w]ho wrote this statute? Somebody who takes pleasure out of pulling the wings off flies?”

Ultimately, the majority of justices held that jurisdictional questions in “mixed cases” are too intimately intertwined with the merits of those cases to require that jurisdictional dismissals by the MSPB be broken apart and addressed first by the Federal Circuit before being addressed by federal district court. In support of this rationale, the majority also acknowledged that the majority of such appeals are pursued by pro se employees, and that it was in the public interest to simplify the appeal process.

Justice Gorsuch and Justice Thomas dissented, siding with the government’s position, insisting their interpretation “just follow[s] the words of the statute as written.”

Read the full case: Perry v. Merit Systems Protection Board


This case law update was written by James G. Heelan, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.




Posted in Case Law Update

Tags: Supreme Court, MSPB, EEO complaint, mixed cases



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