case law update

Supreme Court to Decide Appellate Jurisdiction in Federal Employee “Mixed Case” Appeals

In the first case argued before Supreme Court Justice Neil Gorsuch, Justices appeared to disagree about how to handle “mixed cases,” alleging both adverse employment actions against federal civil service employees and prohibited discrimination, where the Merit Systems Protection Board concludes it lacks jurisdiction because the employee was not subject to an appealable action.

Anthony Perry began working for the U.S. Census Bureau in 1982, and the mid-2000s, he developed osteoarthritis and began experiencing pain. While Perry’s supervisor worked with him on accommodations to manage the pain, Perry filed a series of Equal Employment Opportunity complaints against the Census. In June 2011, the Census proposed Perry’s removal, and in August 2011, Perry and the Census entered into a settlement agreement for Perry to accept a 30-day suspension and to then retire, in exchange for releasing the Census of all his claims, including his EEO complaints.

After Perry retired from the Census pursuant to the settlement agreement, his filed a pro se appeal to the Merit Systems Protection Board, alleging he was appealing “Involuntary Retirement” and “Suspension for more than 14 days.” As part of that appeal, Perry alleged his proposed removal was not supported on its merits and was the product of EEO discrimination and retaliation against him. Perry further claimed the Census had coerced him into signing the August 2011 settlement agreement in which he released his claims.

An administrative judge of the MSPB subsequently held a hearing and 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.” Perry appealed that determination to the MSPB’s presidentially-appointed, Senate-confirmed panel, which 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 ordered the parties to show cause for why it held jurisdiction over Perry’s appeal. Both parties subsequently agreed the D.C. Circuit lacked jurisdiction, making the issue whether the D.C. Circuit should transfer Perry’s case to the U.S. Court of Appeals for the Federal Circuit or to federal district court. The D.C. Circuit subsequently transferred the case to the Federal Circuit, which held briefing in abeyance while Perry petitioned for a writ of certiorari to the Supreme Court on whether his case should have been transferred to a district court.

At the Supreme Court, the parties agreed the statute governing “mixed cases” was unclear. The government argues Perry’s appeal must go to the Federal Circuit, for that appeals court 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. Justice Kagan summed up the issue at oral argument on Monday, April 17, 2017, asking counsel for the government, as to whether a case is actually mixed and thus whether the MSPB can adjudicate the matter, “who decides that?”

Justice Gorsuch suggested that a district court is only authorized to hear the discrimination portion of Perry’s case, as the Federal Circuit had the exclusive authority to review MSPB decisions. Justice Kagan indicated disagreement, saying that Justice Gorsuch’s approach to split claims like Perry’s “would be a kind of revolution…to the extent that you can have a revolution in this kind of case.”

An area on which the justices did seem to agree, was the confusing nature of the statutory language. Early in the government’s argument, Justice Sotomayor asked for guidance about how the government would suggest she write the majority opinion, adding “which I hope I’m not,” to laughter from her colleagues. Apparently in substantive agreement with his fellow justice, Justice Alito later 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?”

Toward the end of argument, Chief Justice Roberts summed up that is seemed “wiser” to avoid the kind of claim splitting the government’s position would require. And Perry’s counsel ended his brief rebuttal arguing, “the government’s position in this case is just too complicated to be right.”

FedManager will report on the Supreme Court’s decision in this case when it issues.

Read the official transcript for the oral argument before the Supreme Court:  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, EEOC


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