On June 23, 2017 the U.S. Supreme Court decided Perry v. Merit Systems Protection Board, holding that when the Merit Systems Protection Board dismisses a government employee’s “mixed case” (a case where the employee claims that an adverse employment action violated both the Civil Service Reform Act and federal anti-discrimination laws) for lack of jurisdiction, the employee must appeal the Board’s decision to federal district court, and not the Federal Circuit.
The Merit Systems Protection Board reviews certain serious personnel actions against federal employees. Different courts review the Board’s decision, depending on the claim(s) that the employee raised. 1) If an employee asserts a claim only under the Civil Service Reform Act (CSRA), the Board’s decision is reviewable exclusively by the Federal Circuit. 2) If the employee asserts a claim only under federal anti-discrimination laws (and not under the CSRA), the Board’s decision is reviewable in federal district court. 3) If the employee asserts claims under both the CSRA and anti-discrimination laws, it is called a “mixed case,” and the Board dismisses the claim either on the merits or on procedural grounds, the decision is reviewable in federal district court.
The question in this case was what court reviews the Board’s decision to dismiss an employee’s “mixed case” for lack of jurisdiction, as opposed to dismissal on the merits or on procedural grounds. Anthony Perry claimed he was improperly forced out of his job at the Census Bureau on several discriminatory grounds. But the Board concluded that Perry left his job voluntarily, and because voluntary departure from a job is not appealable to the Board, the Board decided that it lacked jurisdiction over Perry’s claim. Perry sought review in the D.C. Circuit, which all agreed was the wrong court, and the D.C. Circuit transferred the case to the Federal Circuit, holding that it, and not district court, was the proper forum for review of the Board’s dismissal on jurisdictional grounds.
The Supreme Court reversed, holding the Board’s jurisdictional dismissal of Perry’s claim is reviewable in federal district court, not the Federal Circuit. The Court began with the general rule that federal employees have a right to pursue claims of discrimination in federal district court, even if their discrimination claims are joined with claims under the CSRA. The Court then explained that its 2012 decision in Kloeckner v. Solis, 568 U.S. 41 (2012), rejected any distinction between Board dismissals based on merits and dismissals based on procedure, and held that either kind of dismissal in a “mixed case” is reviewed in district court, not the Federal Circuit. The Court concluded that dismissals of “mixed cases” on jurisdictional grounds should be treated no differently. The Court observed that if Congress had wanted to send “merits” and “procedural” decisions to the district court for review, but send “jurisdictional” decisions to the Federal Circuit, it could have just said so, but did not. The Court also remarked that “[a] procedure-jurisdiction distinction for purposes of determining the court in which judicial review lies … would be perplexing and elusive.”
Justice Ginsburg delivered the opinion of the Court, in which Chief Justice Roberts and Justices Kennedy, Breyer, Alito, Sotomayor, and Kagan joined. Justice Gorsuch filed a dissenting opinion, in which Justice Thomas joined.