Perry v. Merit Systems Protection

LII note: The U.S. Supreme Court has now decided Perry v. Merit Systems Protection .


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?

Oral argument: 
April 17, 2017

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. In the mid-2000s, Perry developed osteoarthritis. To help relieve the pain, Perry’s supervisor allowed him to take walking breaks during working hours that could be made up after hours. In 2011, the Bureau sent notice for termination because Perry was frequently absent from his desk. Perry explained that his supervisor had allowed him to take walking breaks to relieve his osteoarthritis pains; he subsequently filed discrimination claims with the Equal Employment Opportunity (“EEO”) Commission. Perry eventually settled with the Bureau: Perry would dismiss his discrimination claims against the agency, serve a 30-day suspension, and retire early in exchange for the agency dropping its disciplinary action against him.

After serving his suspension and retiring, Perry appealed the settlement terms to the MSPB, which is a federal board where federal employees may bring challenges against a federal agency’s “significant adverse employment action[s].” Here, Perry alleged that the initial performance complaints had been based on his race, age, and disability. Perry also alleged that the settlement had been coerced, and thus involuntary, because of discrimination and because his employer had incorrectly explained his appeal rights to him.

An administrative law judge responded that actions such as retirement were considered voluntary, and that he lacked jurisdiction to review voluntary actions. Perry appealed to the Board which then remanded the case; the administrative law judge affirmed the decision. Perry appealed once more to the U.S. Court of Appeals for the D.C. Circuit, which everyone (including Perry) agreed was the wrong court jurisdictionally. The U.S. Court of Appeals for the D.C. Circuit transferred the case to the U.S. Court of Appeals for the Federal Circuit on the basis of lack of jurisdiction. The Federal Circuit has suspended proceedings per Perry’s motion so that the Supreme Court may decide which court should hear the case: the U.S. Court of Appeals for the Federal Circuit or a federal district court.

If the MSPB decides a case against an employee, the employee may appeal to either the U.S. Court of Appeals for the Federal Circuit or a federal district court. The appeal will generally go to the U.S. Court of Appeals for the Federal Circuit unless the case is a mixed case where the employee challenges both the adverse employment action and alleges discrimination. In such mixed cases, if the MSPB rules against the employee on the merits of the discrimination claim, the appeal goes to a district court. If the MSPB dismisses the mixed claim on jurisdictional grounds without reaching the merits of the discrimination claim, the appeal may go to the Federal Circuit. On the other hand, if the MSPB dismisses the claim on a procedural ground and without reaching the merits, the case would go to the district court. Here, Perry’s case was dismissed on basis of lack of jurisdiction before any judgments were made and was thus sent to the U.S. Court of Appeals for the Federal Circuit.



Perry argues that when the MSPB dismisses mixed cases, these cases are reviewed in federal district court. Perry turns to the statutory framework of the Civil Service Reform Act (“CSRA”) and anti-discrimination laws, to pinpoint provisions granting judicial review in district court. Examining the statutory text, Perry highlights how civil service laws (like the CSRA) are limited in application to certain serious personnel actions, while discrimination laws apply broadly to all personnel actions that impact employees. . Procedurally, Perry maintains, a federal employee must first bring her claim to the Equal Employment Opportunity Office and may, thereafter, appeal an adverse decisions to the EEO Commission. Once these routes have been exhausted, Perry adds, the employee may then file a discrimination complaint in federal district court. Perry identifies several available avenues for employees to pursue mixed cases containing complaints against a personnel action serious enough to appeal to the MSPB and alleging discrimination as the foundation for that action. . Where an employee files a mixed case complaint with her employment agency, Perry claims that her remedies are not exhausted should she receive an adverse decision. If that employee receives an adverse decision, Perry argues she may then take the matter to the MSPB or file suit against her agency in district court. An alternative route, Perry notes, is for the harmed employee to bring her mixed case directly to the MSPB. .

MSPB views Perry’s approach as contrary to the statutory text. , . Citing the CSRA, the MSPB claims that a MSPB decision is only reviewable in district court where, (1) an employee is affected by an action appealable to the Board, and (2) the employee alleges that discrimination, prohibited by a listed anti-discrimination law, provided the basis for his action. The MSPB maintains that, based on the statute’s language, Perry’s allegation may be sufficient as to discrimination but not appealability. Turning to legislative history, the MSPB cites Sebelius v. Cloer and Bates v. United States as cases proving that where Congress includes particular language in one section but leaves the language out of another section of the same statute, it is presumed that Congress’ exclusion was purposeful. The MSPB contends that when it makes a finding that an employee’s suit is not appealable to the MSPB, the case no longer counts as a mixed case. Rather, the MSPB maintains that when an employee seeks to appeal the MSPB’s determination that it will not reconsider its adverse finding in a case, that employee may not rely on Section 7702, but instead is subject to Section 7703's default rule for judicial review of Board decisions by the Federal Circuit. This is because the MSPB contends that only in cases of pure discrimination, not mixed cases, can an employee challenge a personnel practice in federal district court when it is not appealable to the MSPB. Procedurally, the MSPB claims that relevant EEOC regulations provide that when the MSPB denies appeal to an underlying action in a discrimination case, that employee should be able to pursue a pure discrimination case or seek judicial review of the MSPB determination in the Federal Circuit, but not district court. Moreover, the MSPB argues that employees may ultimately have their discrimination claims heard in district court, but that the proper forum for judicial review of an MSPB decision that finds an employment action non-appealable is the Federal Circuit. Under this view, if a reviewing court affirms the Board’s non-appealability holding, and the employee thereafter exhausts discrimination claims through an EEO complaint, the employee may then seek trial de novo on their claims in district court.


Perry cites Kloeckner as supporting the position that a district court is the proper forum for reviewing mixed cases, regardless of whether the MSPB reaches the merits of a discrimination claim. Perry points to the plain language of the CSRA Sections 7702 and 7703 to support his view that cases alleging discrimination must be filed in district court, including pure and mixed discrimination cases. Perry adds that the reservation of pure civil-service case, which lack a discrimination component, to federal circuits supports the view that cases with a discrimination component should be appealed in the district courts. Perry explains these judicial review procedures underlie the CSRA’s purpose of preserving federal employees’ right to have discrimination claims tried de novo in district court.

The MSPB argues that the Federal Circuit has exclusive review of MSPB divisions. . The MSPB claims that the exception for mixed cases is inapplicable in the case at hand, which is not a mixed case under the CSRA. The MSPB argues that Perry’s case was not mixed because there was no valid adverse employment action for the facially-voluntary act of retirement. The MSPB argues that where it has held that the relevant personnel action is not appealable to the MSPB, the matters should not be deemed mixed case for judicial review purposes. The MSPB points to CSRA Sections 7702 and 7703 to evidence it’s claim that for a discrimination case to be mixed, it must be also be appealable to the Board. The MSPB further argues that no statute explicitly allows employees to appeal facially voluntary acts, such as retirement, to the MSPB without a showing that the act was actually involuntary. The MSPB argues that Perry did not make such a showing. Because Kloeckner involved a mixed case, the MSPB views Perry’s reliance on this case for evidence that district court is the proper forum as flawed. According to the MSPB, Kloeckner involved both an action appealable to the MSPB and an alleged discrimination prohibited by a federal law, factors which it argues are both lacking in Perry’s case. Moreover, the MSPB believes that treating this case as mixed, despite the MSPB’s showing that the case lacked an appealable action, would be inconsistent with inherent principles of administrative deference. Because of the need to protect agencies’ authority to determine their own jurisdiction, the MSPB argues that its decision regarding appealability should be viewed as presumptively valid even where an employee seeks judicial review.


Perry claims that the D.C. Circuit’s jurisdiction/procedure distinction is unworkable in practice. Perry claims that there is nothing “jurisdictional” about claims at issue, and if Congress intended to send jurisdictional dismissals to the Federal Circuit and procedural dismissals to the district court, it would have made that distinction explicit. Moreover, Perry claims that the basis of forum denominations should be the nature of an employee’s claim, rather than the reasoning of the MSPB’s decisions.

The MSPB deems Perry’s jurisdiction/procedure distinction as flawed. . The MSPB notes that this distinction is an unnecessarily complicated variation of the non-appealability/procedural standard that Kloeckner actually suggests. The MSPB suggests that the non-appealability/procedure standard is more workable. The MSPB notes that by looking at the language of its written opinion, a determination can be made on whether the grounds for dismissing an appeal was the non-appealability of the personnel action, which would validate judicial review by the Federal Circuit, or a different ground (procedural etc.), in which case judicial review would go to district court. The MSPB claims that the court in Kloeckner correctly considered the proper forum for judicial review of an MSPB decision when it dismissed an appeal to the Board on procedural grounds. In the case at hand, however, the grounds for dismissing the appeal was the non-appealability of the personnel action, thus, the MSPB holds that the Federal Circuit remains the proper venue for judicial review.



Perry explains that Kloeckner v. Solis created a simple guideline that clearly divided judicial review of MSPB decisions: decisions regarding “significant adverse employment actions” would be reviewed by the U.S. Court of Appeals for the Federal Circuit, and “mixed” cases that included issues under federal anti-discrimination laws would go to a federal district court. Perry argues that the delineation should have held true for this case as well, given its coherence and clarity. Perry argues that the D.C. Circuit’s jurisdiction/procedure distinction has no basis in statutory text and “plunges” an otherwise clear distinction into “a morass of complexity.” It is wasteful, Perry adds, to litigate about the proper court in which to litigate.

The MSPB argues that the CSRA emphasized the importance of a nationwide uniformity of the law in allowing exclusive jurisdiction to the Federal Circuit for determining the appealability of MSPB decisions. The MSPB acknowledges that there is an exception for mixed cases wherein an employee claims both an adverse employment action by the agency and discriminatory offenses, but maintains that Perry’s case should not be treated as a mixed case. The MSPB explains that consolidating review jurisdiction in the Federal encourages consistency in judicial decisions, enables unitary Executive Branch positions on personnel matters, and avoids an “unnecessary layer of judicial review” in district courts. Allowing district courts to decide on MSPB decision appealability, continues the MSPB, would frustrate Congressional intent to harmonize the law as per the CSRA.


The Metropolitan Washington Employment Lawyers Association (“MWELA”) claims that a federal employee, after having his or her case heard by the MSPB, has the right to de novo review of discrimination claims in federal district court, and that this right is supported by Congress in the CSRA and its subsequent amendments. . This is an important right, MWELA argues, because district courts have the necessary expertise in fact-finding and in dealing with civil rights matters which the Federal Circuit lacks. MWELA also maintains that denial of the right of de novo review would deter the use of the MSPB process altogether. . If employees could no longer access trial de novo if their claims were dismissed by the MSPB on jurisdictional grounds, explains MWELA, it would encourage employees to forego utilizing the MSPB for fear that they would be denied a merits hearing at a district court and be forced into the Federal Circuit.

The MSPB counters that Perry still maintains the right to pursue the discrimination claims de novo in district court through an EEO complaint after he has exhausted other venues. The MSPB explains that if it determines that an appeal is not available in a federal employee’s discrimination case, such a determination should be given deference. The employee may then either start a pure discrimination case in district court, or otherwise seek a judicial reversal of the determination at the Federal Circuit. If the employee chooses to start a pure discrimination claim at a district court, the case is considered distinct, and the employee may do so as if she had not tried to appeal the case to the MSPB. If the employee seeks judicial review and the reviewing court determines that the employee has a valid adverse employment action claim and thus a mixed case, the employee may then exhaust the discrimination claim by filing an EEO complaint and then seek a de novo trial on those claims.

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