Perry v. Merit Sys. Prot. Bd., 14–1155

• Decision Date: 22 July 2016
• Docket Number: No. 14–1155,14–1155
• Citation: 32 A.D. Cases 1641,829 F.3d 760
• Parties: Anthony W. Perry, Petitioner v. Merit Systems Protection Board, Respondent
• Court: U.S. Court of Appeals — District of Columbia Circuit

829 F.3d 760

32 A.D. Cases 1641

Anthony W. Perry, Petitioner

v.Merit Systems Protection Board, Respondent

No. 14–1155

United States Court of Appeals, District of Columbia Circuit.

Argued November 18, 2015

Decided July 22, 2016

Rebecca Taibleson, Washington, DC, appointed by the court, argued the cause for petitioner. With her on the briefs were Devin S. Anderson and Christopher Landau, Washington, DC, all appointed by the court.

Anthony W. Perry, pro se, filed the brief for petitioner.

Stephen W. Fung, Attorney, Merit Systems Protection Board, argued the cause and filed the brief for respondent.

Before: Griffith, Srinivasan and Millett, Circuit Judges.

Srinivasan, Circuit Judge:

When a federal agency takes a significant adverse employment action against an employee, the employee can appeal to the Merit Systems Protection Board. If the Board then rules against the employee, she can seek review of the Board's decision in a federal court. But which federal court? That is the question we confront in this case. There are two possible answers: the Federal Circuit or a federal district court.

As a general matter, Board decisions are reviewed in the Federal Circuit. An exception to that default rule arises with so-called “mixed cases.” Mixed cases are ones in which an employee not only challenges an adverse action within the Board's jurisdiction but also alleges discrimination in violation of certain federal statutes. If the Board in a mixed case rules against the employee on the merits of her discrimination claim, she must seek review in district court, not the Federal Circuit.

Our court has held, though, that the mixed-case exception does not apply if the Board dismisses the employee's appeal for lack of jurisdiction without reaching the merits of her discrimination claim. In that circumstance, review lies in the Federal Circuit rather than district court. Powell v. Dep't of Def. , 158 F.3d 597 (D.C. Cir. 1998). This case involves exactly that situation. So in the normal course, our precedent in Powell would straightforwardly dictate transferring this case to the Federal Circuit.

It turns out the path is not so straightforward because of the Supreme Court's intervening decision in Kloeckner v. Solis , ––– U.S. ––––, 133 S.Ct. 596, 184 L.Ed.2d 433 (2012). In Kloeckner , the Court held that when the Board dismisses a mixed-case appeal without reaching the merits on a procedural ground—there, untimeliness—judicial review resides in district court (as when the Board reaches the merits), not the Federal Circuit. The question we now address is whether Kloeckner effectively overruled our decision in Powell . That is, does Kloeckner 's result for pre-merits procedural dismissals eviscerate Powell 's contrary result for pre-merits jurisdictional dismissals?

We find that the answer is no, and that we remain bound by our precedent in Powell . We therefore transfer this case to the Federal Circuit.

I.

Anthony Perry, the appellant in this case, worked for the Census Bureau until 2012. In 2011, the Bureau sent Perry a memorandum notifying him that he would be terminated because of problems with his attendance. The Bureau alleged that Perry had refused to document his hours properly and had been absent from his desk for hours at a time. Perry responded, explaining that he had an informal agreement with his supervisor allowing him to take walking breaks during the workday due to his osteoarthritis

.

In August 2011, Perry entered into a settlement agreement with the Bureau. The agreement settled the disciplinary action in exchange for Perry's early retirement and his completion of a thirty-day suspension. It also required Perry to dismiss discrimination claims he had separately filed with the Equal Employment Opportunity Commission. Although Perry later expressed his desire to continue working, he retired in April 2012 per the settlement agreement.

Perry then appealed his suspension and retirement to the MSPB. He alleged that the Bureau's complaints about his performance resulted from discrimination based on his race, age, and disability, and also constituted retaliation against him for bringing his discrimination claims. Perry further claimed that, because of the discrimination and because the Bureau had misrepresented his appeal rights, his settlement agreement with the Bureau had been coerced.

The MSPB's jurisdiction hinged on Perry's claim that the settlement had been involuntary: because the Board generally lacks jurisdiction to review voluntarily accepted actions, see 5 U.S.C. § 7512(1) –(5) ; 5 C.F.R. § 752.401(b)(9) ; Garcia v. Dep't of Homeland Sec. , 437 F.3d 1322, 1328 (Fed. Cir. 2006), its jurisdiction in this case depended on the validity of Perry's contention that the settlement—and hence, the resulting suspension and retirement—had been involuntary. An administrative law judge rejected Perry's claims of coercion, finding that the retirement and suspension had been imposed pursuant to a voluntary agreement. The judge thus dismissed the case for lack of jurisdiction. The MSPB, after remanding the case once for reasons not relevant here, affirmed the dismissal for lack of jurisdiction.

Perry, proceeding pro se, filed a petition for review of the Board's dismissal in this court. We appointed an amicus curiae to present argument on whether this court has jurisdiction, and, if not, whether the case should be transferred to the Federal Circuit or a federal district court. Because Perry has fully joined amicus's arguments on those issues, we will refer to them collectively as Perry.

II.

The question we confront is which federal court has jurisdiction to review the Board's dismissal of Perry's case. We can quickly rule out one court—ours. Although Perry initially petitioned for review in this court, he now acknowledges that this court lacks jurisdiction. The Board agrees, and so do we. The statute under which Perry initially brought the case to us, 5 U.S.C. § 7703(b)(1)(B), allows for jurisdiction in any court of appeals over cases in which the employee exclusively makes whistleblower claims. That provision, as all parties agree, has no application to this case.

Although this court lacks jurisdiction, we can transfer the case to a court in which it could have been brought originally. See 28 U.S.C. § 1631. And while the parties agree that the case should be transferred from here, they disagree about where it should go. Perry contends that jurisdiction to review the Board's decision lies in federal district court. The Board argues that the case instead belongs in the Federal Circuit. We conclude that our precedent requires transferring the case to the Federal Circuit.

Before turning to which court has jurisdiction to review the MSPB's decision, we briefly set out which cases can go to the Board in the first place. Not every type of adverse employment action can be appealed to the Board. Rather, to come within the Board's jurisdiction, the action must be sufficiently serious—e.g., a termination or a suspension of longer than fourteen days. See 5 U.S.C. §§ 7512, 7513(d). Additionally, as explained, the contested action generally cannot have been voluntarily undertaken by the employee.

Let's assume the employee brings to the Board a case that meets those criteria and thus lies within the MSPB's jurisdiction. If the Board renders a decision against her, she may seek judicial review pursuant to the Civil Service Reform Act, 5 U.S.C. § 1101 et seq. As a general matter, review of Board decisions lies in the Federal Circuit. 5 U.S.C. § 7703(b)(1)(A). There is an exception to that rule for certain “[c]ases of discrimination,” as to which review lies in federal district court. Id. § 7703(b)(2).

The statute defines the cases falling within that exception as ones in which an employee “(A) has been affected by an action which [she] may appeal to the Merits Systems Protection Board, and (B) alleges that a basis for the action was discrimination prohibited by” enumerated federal laws. Id. § 7702(a)(1). Such cases have come to be known as “mixed cases.”

E.g. , Kloeckner , 133 S.Ct. at 602, 604. The upshot is that, whereas review of MSPB decisions normally resides in the Federal Circuit, “mixed cases—those appealable to the MSPB and alleging discrimination”—“shall be filed in district court.” Id. at 604.

But where should an employee seek judicial review in a situation in which she brought to the MSPB what she believed was a mixed case, but the Board dismissed her appeal for lack of jurisdiction upon deciding that the case was not in fact “appealable to the MSPB”? Id. That happened here: Perry sought review in the MSPB of a case in which he “alleg[ed] discrimination,” id. but the Board dismissed his appeal for lack of jurisdiction based on a conclusion that his retirement and suspension had been voluntary.

We previously faced the same situation in Powell v. Department of Defense , 158 F.3d 597. There, after concerns had been raised about Lawana Powell's absences from work, she agreed to a transfer to a temporary position which expired soon thereafter. Id. at 597. Powell appealed to the MSPB, arguing that her separation had been involuntary and that the agency had discriminated against her. Id. The Board dismissed her appeal for lack of jurisdiction upon finding that her acceptance of the transfer had been voluntary. Id. at 597–98. She sought review in district court on the assumption that her case was a mixed case. But the district court “ruled that Powell's case was not a true mixed case because it included only a discrimination claim and not a Board-jurisdictional claim.” Id. at 598. We agreed, holding that the Federal Circuit—not the district court—was the proper forum for Powell's appeal. Id. at 599–600.

Powell is materially indistinguishable from this case. Like Powell, Perry resolved a disciplinary issue by agreeing to a significant employment action that could be appealed to the Board if involuntary (in this case, mandatory retirement and a thirty-day...