Perry v. Merit Systems Protection Bd. Case Brief

Perry v. Merit Systems Protection Bd.

Full access

Unlock the video and quiz

The written brief is free to read below. Subscribe to watch the video explainer and take the quiz.

Create an account Log in

Takeaway

In short, a federal employee's mixed discrimination-and-CSRA case goes to district court for review even when the MSPB dismisses it for lack of jurisdiction.

Background

Anthony Perry, a Census Bureau employee, received notice that the agency intended to terminate him for attendance problems. He later settled with the Bureau: he accepted a 30-day suspension and early retirement and agreed to dismiss separate discrimination claims pending before the EEOC.

After retiring, Perry appealed to the Merit Systems Protection Board (MSPB). He alleged that the suspension and retirement were tainted by race, age, and disability discrimination, as well as retaliation for prior discrimination complaints. He also contended that the settlement agreement was coerced and therefore invalid. The MSPB found that Perry had not proved coercion. Treating his retirement and settlement as voluntary, the Board held that it lacked jurisdiction because voluntary actions are not appealable adverse actions under the Civil Service Reform Act (CSRA).

The MSPB told Perry that he could seek review in the Federal Circuit. Perry instead petitioned the D.C. Circuit. Bound by its earlier precedent, the D.C. Circuit concluded that an MSPB dismissal of a mixed case for lack of jurisdiction must be reviewed in the Federal Circuit, and it transferred the case there. The Supreme Court reversed.

Issues

Issue #1

Whether judicial review of an MSPB jurisdictional dismissal of a mixed case belongs in federal district court or exclusively in the Federal Circuit.

Holding

Federal district court is the proper forum. A mixed case remains subject to district-court review even when the MSPB dismisses it for lack of jurisdiction.

Reasoning

The CSRA generally sends review of final MSPB decisions to the Federal Circuit. But § 7703(b)(2) creates an exception for "cases of discrimination subject to" § 7702, directing those cases to be filed under the applicable antidiscrimination statutes. Because those statutes authorize suits in federal district court, mixed cases ordinarily go there.

Under Kloeckner v. Solis, a mixed case is one in which an employee claims that an action appealable to the MSPB was taken in whole or in part because of unlawful discrimination. Kloeckner held that these cases go to district court whether the MSPB resolves them on the merits or dismisses them on procedural grounds. The CSRA does not draw a review-forum distinction based on the type of MSPB disposition.

Whether a case falls within § 7702 turns on the employee's nonfrivolous, well-pleaded allegations at the outset, not on the MSPB's ultimate conclusion that it lacks jurisdiction. Perry alleged a suspension exceeding 14 days and an involuntary removal—actions ordinarily appealable to the MSPB—and alleged that discrimination caused them. Those allegations made his appeal a mixed case.

The Court rejected the Government's proposed line between procedural dismissals, which Kloeckner sent to district court, and jurisdictional dismissals, which the Government sought to send to the Federal Circuit. Congress could have expressly created that division but did not. Moreover, the line is unstable: timeliness, jurisdiction, and merits questions can overlap and may be difficult to classify consistently.

Perry's case illustrated that overlap. The MSPB treated the validity of the settlement agreement as a jurisdictional question, reasoning that a valid agreement made his retirement voluntary and thus nonappealable. But whether the agreement was coerced was also central to Perry's underlying claim. Treating that issue as jurisdictional could not justify separating it from the discrimination dispute.

A rule requiring employees to split related claims between the Federal Circuit and district court would impose added cost, delay, and confusion. It would also be difficult to administer when the MSPB relies on alternative grounds or dismisses different parts of a complaint on different grounds. The Court read the CSRA to preserve integrated review rather than compel parallel litigation.

Dissents

Justice Gorsuch

Reasoning

Justice Gorsuch, joined by Justice Thomas, read the CSRA as establishing a straightforward division: civil-service issues generally go to the Federal Circuit for deferential review, while discrimination claims go to district court under the specified antidiscrimination statutes for de novo adjudication. In his view, Congress allowed employees to present discrimination claims to the MSPB without altering that basic allocation of review authority.

Because the MSPB held that Perry had not suffered an appealable adverse action, the dissent viewed Perry's immediate challenge as a civil-service question about the Board's jurisdiction. That question, Justice Gorsuch reasoned, belonged in the Federal Circuit. If Perry prevailed there, he could return to the MSPB; if he lost, he could still pursue his discrimination claim through ordinary agency exhaustion procedures and then seek district-court review.

The dissent rejected the majority's reliance on Kloeckner. It understood Kloeckner to decide only where an employee should seek review of a discrimination claim after the MSPB dismisses a mixed case on procedural grounds or the merits. It did not, in the dissent's view, decide that a challenge to the MSPB's jurisdiction over a civil-service claim could be heard in district court.

Justice Gorsuch warned that the majority's approach effectively rewrote a carefully structured statute in the name of efficiency. Sending civil-service issues to district court creates unresolved questions about the proper standard of review, available remedies, treatment of a failed discrimination claim, and preservation of nationwide uniformity in federal personnel law. Those policy and drafting problems, he concluded, are for Congress rather than the Court to solve.