Jurisdiction Question in MSPB Mixed Case Appeals Must Be Decided by Federal Circuit, Not District Court | Practical Law

Jurisdiction Question in MSPB Mixed Case Appeals Must Be Decided by Federal Circuit, Not District Court | Practical Law

In Perry v. MSPB, the US Court of Appeals for the District of Columbia Circuit held that in a presumed "mixed case appeal" where the Merit Systems Protection Board (MSPB) dismisses an employee's appeal based on lack of jurisdiction, employee appeals of that dismissal are heard by the Federal Circuit, not by a US district court.

Jurisdiction Question in MSPB Mixed Case Appeals Must Be Decided by Federal Circuit, Not District Court

by Practical Law Labor & Employment
Published on 27 Jul 2016 • USA (National/Federal)
In Perry v. MSPB, the US Court of Appeals for the District of Columbia Circuit held that in a presumed "mixed case appeal" where the Merit Systems Protection Board (MSPB) dismisses an employee's appeal based on lack of jurisdiction, employee appeals of that dismissal are heard by the Federal Circuit, not by a US district court.
On July 22, 2015, in Perry v. MSPB, the US Court of Appeals for the District of Columbia Circuit (DC Circuit) held that in a presumed "mixed case appeal" (a federal employee's appeal of an agency's adverse action before the MSPB that also alleges the adverse action was motivated by discrimination) where the MSPB dismisses the employee's appeal for lack of jurisdiction without reaching the merits of the discrimination claim, judicial review of that dismissal lies in the Federal Circuit, not a US district court. A 2012 US Supreme Court decision held that US district courts will hear cases where the MSPB dismissed a mixed case on procedural grounds (like untimeliness) and did not reach the merits of the discrimination claim. However, the DC Circuit decided that the Supreme Court's decision that "pre-merits procedural dismissals" are heard in US district court did not overrule the DC Circuit's earlier decision that "pre-merits jurisdictional dismissals" are heard by the Federal Circuit. ( (D.C. Cir. Jul. 22, 2015).)

Background

Anthony Perry, a Census Bureau employee, entered into a settlement agreement with the Bureau in August 2011 intended to resolve disciplinary action brought against him. In the settlement agreement Perry agreed to:
  • Retire early.
  • Serve a 30-day suspension.
  • Voluntarily dismiss discrimination claims he had filed against the Bureau with the EEOC.
Following Perry's retirement in April 2012, he appealed his suspension and retirement to the MSPB, claiming that:
  • The Bureau discriminated against him based on race, age, and disability, and retaliated against him for bringing discrimination claims.
  • The settlement agreement was coerced because the Bureau misrepresented Perry's appeal rights.
MSPB jurisdiction depended on Perry's claim that the settlement agreement was involuntary. An administrative judge found that the settlement agreement was voluntary and dismissed the case for lack of jurisdiction. The MSPB affirmed the dismissal based on lack of jurisdiction.
Perry filed a petition for review with the DC Circuit, but while the petition was pending:
  • Acknowledged that the DC Circuit did not have jurisdiction to review the MSPB's dismissal of his case.
  • Argued that the case should be heard by a US district court.
The MSPB argued that the case should be heard in the Federal Circuit.

Outcome

The DC Circuit held that in a presumed mixed case appeal, the Federal Circuit, not a US district court, will hear petitions for review of an MSPB decision dismissing the employee's action based on lack of MSPB jurisdiction.
The DC Circuit noted that:
  • The Civil Service Reform Act (CSRA) provides that the Federal Circuit generally reviews MSPB decisions (5 U.S.C. § 7703(b)(1)(A)).
  • An exception to Federal Circuit review occurs in certain discrimination cases, where review lies with US district courts. In those "mixed cases" an employee:
    • may appeal an agency action to the MSPB; and
    • is alleging that discrimination prohibited by federal law was a basis for the agency's action.
    (5 U.S.C. § 7703(b)(2); 5 U.S.C. § 7702(a)(1); Kloeckner v. Solis, 133 S. Ct. 596, 604 (2012).)
  • In Powell v. Department of Defense, the DC Circuit held that the Federal Circuit, not a US district court, is the proper forum in a case that, although assumed to be a mixed case, was not a true mixed case because the MSPB had dismissed it for lack of jurisdiction. Those cases involve only a discrimination claim and not a claim appealable to the MSPB. (158 F.3d 597, 598-600 (1998).)
  • In Kloeckner v. Solis, the US Supreme Court held that a US district court has jurisdiction in a mixed case which the MSPB dismissed on "procedural grounds" (in that case, untimeliness) (133 S. Ct. at 603).
The DC Circuit determined that the US Supreme Court's 2012 decision in Kloeckner did not overrule the DC Circuit's earlier decision in Powell, noting that:
  • Powell was "materially indistinguishable" from Perry's case in that both cases involved a presumed mixed case appeal which the MSPB dismissed on jurisdictional grounds.
  • The Federal Circuit held that Kloeckner did not overrule its own pre-Kloeckner decisions holding that the Federal Circuit should review MSPB jurisdictional dismissals (Conforto v. MSPB, 713 F.3d 1111, 1116-19 (Fed. Cir. 2013)).
  • The CSRA's description of a mixed case appeal as one in which the employee alleges discrimination and also "has been affected by an action which [she] may appeal" to the MSPB suggests that there is a difference between the MSPB's jurisdictional dismissals in this case and Powell and the MSPB's procedural dismissal in Kloeckner (5 U.S.C. § 7702(a)(1)(A)).
  • When the MSPB dismisses an appeal based on jurisdictional grounds, the MSPB is determining that:
    • the employee was affected by an agency action that the employee may not appeal to the MSPB; and
    • the case is not really a mixed case and the jurisdictional question should be heard by the Federal Circuit.
  • When the MSPB dismisses a case based on procedural grounds, the MSPB is determining that:
    • the employee was affected by an agency action that the employee may appeal to the MSPB; and
    • the case is a true mixed case and therefore should be heard in a US district court.

Practical Implications

The DC Circuit's decision in Perry signals that federal employees should:
  • Be careful about where they elect to file a claim that could be a mixed case.
  • Fully understand the various options for review of mixed cases.
After the MSPB dismissed Perry’s appeal for lack of jurisdiction, he could have pursued his discrimination claims through the federal sector equal employment opportunity process, which would have given him rights to appeal to the EEOC and file a lawsuit in federal district court. Because Perry elected to go straight to court to review the MSPB's decision, his only option was to file in the Federal Circuit. This case is still in progress, but if the Federal Circuit agrees the MSPB had no jurisdiction over Perry's appeal, he may have no further options.