Perry v. Merit Systems Protection
Issues
What is the proper test for determining whether a case is a “mixed case,” and what is the proper forum for judicial review of the MSPB’s dismissal of a mixed case for lack of jurisdiction?
This case will allow the Supreme Court to decide the proper forum in which a federal employee may seek judicial review of a U.S. Merit Systems Protection Board (“MSPB” or “Board”) dismissal of their mixed case. A federal employee has a mixed case where they bring a claim based on both “significant adverse employment action[s]” and discrimination. The U.S. Court of Appeals for the District of Columbia (“D.C. Circuit”) previously held that a mixed-case appeal should be reviewed in the Federal Circuit if the MSPB’s dismissal is based on both a lack of jurisdiction and a failure to reach the merits of the discrimination claim. However, the Supreme Court later held in Kloeckner v. Solis that a U.S. district court would hear mixed cases if the MSPB dismissal is based on procedural (as opposed to jurisdictional) grounds, and the dismissal failed to decide the merits of the underlying discrimination claim. Here, the D.C. Circuit held that Kloeckner did not apply because the MSPB had dismissed the appeal based on a lack of jurisdiction. In addition to legal analysis, the Supreme Court might consider the arguments for and against providing a uniform court for judicial review for federal agency claims as well as a federal employee’s right to de novo review of discrimination claims in determining this case.
Questions as Framed for the Court by the Parties
Whether a Merit Systems Protection Board decision disposing of a “mixed” case (one which challenges certain adverse employment actions and also involves a claim under the federal anti-discrimination laws) on jurisdictional grounds is subject to judicial review in district court or in the U.S. Court of Appeals for the Federal Circuit.
Anthony Perry is a former employee of the Census Bureau where he remained employed until his early retirement in April 2012. See Perry v. MSPB, 829 F.3d 760, 762 (D.C. Cir. 2016). In the mid-2000s, Perry developed osteoarthritis. See Petition for Writ of Certiorari at 5.
Edited by
Additional Resources
- Matthew Bultman, Merit Board Appeal Precedent Stands, DC Circ. Finds, Law 360 (July 25, 2016).
- U.S. High Court Will Decide Where Review Of MSPB Mixed Case Should Occur, Lexis Legal News (Jan. 17, 2017).
- Jurisdiction Question in MSPB Mixed Case Appeals Must Be Decided by Federal Circuit, Not District Court, Practical Law Labor and Employment, Westlaw (July 27, 2016).