Perry v. Merit Sys. Prot. Bd.

• Decision Date: 23 June 2017
• Docket Number: No. 16–399.,16–399.
• Parties: Anthony W. PERRY, Petitioner v. MERIT SYSTEMS PROTECTION BOARD.
• Court: U.S. Supreme Court

137 S.Ct. 1975

198 L.Ed.2d 527

Anthony W. PERRY, Petitioner

v.MERIT SYSTEMS PROTECTION BOARD.

No. 16–399.

Supreme Court of the United States

Argued April 17, 2017.

Decided June 23, 2017.

Christopher Landau, Washington, DC, for Petitioner.

Brian H. Fletcher for Respondent.

Christopher Landau, P.C., Devin S. Anderson, Kirkland & Ellis LLP, Washington, DC, for Petitioner.

Jeffrey B. Wall, Acting Solicitor General, Chad A. Readler, Acting Assistant Attorney General, Malcolm L. Stewart, Deputy Solicitor General, Eric J. Feigin, Assistant to the Solicitor General, Marleigh D. Dover, Stephanie R. Marcus, Attorneys, Department of Justice, Washington, DC, for Respondent.

Michael Foreman, Joseph V. Kaplan, Andrew J. Perlmutter, Erik D. Snyder, Rosa Koppel, and Alan R. Kabat, for Metropolitan Washington Employment Lawyers Association.

Justice GINSBURG delivered the opinion of the Court.

This case concerns the proper forum for judicial review when a federal employee complains of a serious adverse employment action taken against him, one falling within the compass of the Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. § 1101 et seq., and attributes the action, in whole or in part, to bias based on race, gender, age, or disability, in violation of federal antidiscrimination laws. We refer to complaints of that order, descriptively, as "mixed cases."

In the CSRA, Congress created the Merit Systems Protection Board (MSPB or Board) to review certain serious personnel actions against federal employees. If an employee asserts rights under the CSRA only, MSPB decisions, all agree, are subject to judicial review exclusively in the Federal Circuit. § 7703(b)(1). If the employee asserts no civil-service rights, invoking only federal antidiscrimination law, the proper forum for judicial review, again all agree, is a federal district court, see Kloeckner v. Solis, 568 U.S. 41, 46, 133 S.Ct. 596, 184 L.Ed.2d 433 (2012) ; the Federal Circuit, while empowered to review MSPB decisions on civil-service claims, § 7703(b)(1)(A), lacks authority over claims arising under antidiscrimination laws, see § 7703(c).

When a complaint presents a mixed case, and the MSPB dismisses it, must the employee resort to the Federal Circuit for review of any civil-service issue, reserving claims under federal antidiscrimination law for discrete district court adjudication? If the MSPB dismisses a mixed case on the merits, the parties agree, review authority lies in district court, not in the Federal Circuit. In Kloeckner, 568 U.S., at 50, 56, 133 S.Ct. 596, we held, the proper review forum is also the district court when the MSPB dismisses a mixed case on procedural grounds, in Kloeckner itself, failure to meet a deadline for Board review set by the MSPB. We hold today that the review route remains the same when the MSPB types its dismissal of a mixed case as "jurisdictional." As in Kloeckner, we are mindful that review rights should be read not to protract proceedings, increase costs, and stymie employees,¹ but to secure expeditious resolution of the claims employees present. See Elgin v. Department of Treasury, 567 U.S. 1, 15, 132 S.Ct. 2126, 183 L.Ed.2d 1 (2012) (emphasizing need for "clear guidance about the proper forum for [an] employee's [CSRA] claims"). Cf. Fed. Rule Civ. Proc. l.

I

A

The CSRA "establishes a framework for evaluating personnel actions taken against federal employees." Kloeckner v. Solis, 568 U.S. 41, 44, 133 S.Ct. 596, 184 L.Ed.2d 433 (2012). For "particularly serious" actions, "for example, a removal from employment or a reduction in grade or pay," "the affected employee has a right to appeal the agency's decision to the MSPB." Ibid. (citing §§ 1204, 7512, 7701 ). Such an appeal may present a civil-service claim only. Typically, the employee may allege that "the agency had insufficient cause for taking the action under the CSRA." Id., at 44, 133 S.Ct. 596. An appeal to the MSPB, however, may also complain of adverse action taken, in whole or in part, because of discrimination prohibited by another federal statute, for example, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., or the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. See 5 U.S.C. § 7702(a)(1) ; Kloeckner, 568 U.S., at 44, 133 S.Ct. 596.

In Kloeckner, we explained, "[w]hen an employee complains of a personnel action serious enough to appeal to the MSPB and alleges that the action was based on discrimination, she is said (by pertinent regulation) to have brought a ‘mixed case.’ " Ibid. (quoting 29 C.F.R. § 1614.302 (2012) ). See also § 1614.302(a)(2) (2016) (defining "mixed case appeal" as one in which an employee "alleges that an appealable agency action was effected, in whole or in part, because of discrimination"). For mixed cases, "[t]he CSRA and regulations of the MSPB and Equal Employment Opportunity Commission (EEOC) set out special procedures ... different from those used when the employee either challenges a serious personnel action under the CSRA alone or attacks a less serious action as discriminatory." Kloeckner, 568 U.S., at 44–45, 133 S.Ct. 596.

As Kloeckner detailed, the CSRA provides diverse procedural routes for an employee's pursuit of a mixed case. The employee "may first file a discrimination complaint with the agency itself," in the agency's equal employment opportunity (EEO) office, "much as an employee challenging a personnel practice not appealable to the MSPB could do." Id., at 45, 133 S.Ct. 596 (citing 5 C.F.R. § 1201.154(a) (2012) ; 29 C.F.R. § 1614.302(b) (2012) ); see § 7702(a)(2). "If the agency [EEO office] decides against her, the employee may then either take the matter to the MSPB or bypass further administrative review by suing the agency in district court." Kloeckner, 568 U.S., at 45, 133 S.Ct. 596 (citing 5 C.F.R. § 1201.154(b) ; 29 C.F.R. § 1614.302(d)(1)(i) ); see § 7702(a)(2). "Alternatively, the employee may initiate the process by bringing her case directly to the MSPB, forgoing the agency's own system for evaluating discrimination charges."

Kloeckner, 568 U.S., at 45, 133 S.Ct. 596 (citing 5 C.F.R. § 1201.154(a) ; 29 C.F.R. § 1614.302(b) ); see § 7702(a)(1).

Section 7702 prescribes appellate proceedings in actions involving discrimination. Defining the MSPB's jurisdiction in mixed-case appeals that bypass an agency's EEO office, § 7702(a)(1) states in relevant part:

"[I]n the case of any employee ... who—

"(A) has been affected by an action which the employee ... may appeal to the [MSPB], and

"(B) alleges that a basis for the action was discrimination prohibited by [specified antidiscrimination statutes], ...

"the Board shall, within 120 days of the filing of the appeal, decide both the issue of discrimination and the appealable action in accordance with the Board's appellate procedures...."²

Section 7702(a)(2) similarly authorizes a mixed-case appeal to the MSPB from an agency EEO office's decision. Then, "[i]f the MSPB upholds the personnel action (whether in the first instance or after the agency has done so), the employee again has a choice: She may request additional administrative process, this time with the EEOC, or else she may seek judicial review." Kloeckner, 568 U.S., at 45, 133 S.Ct. 596 (citing § 7702(a)(3), (b) ; 5 C.F.R. § 1201.161 ; 29 C.F.R. § 1614.303 ).

Section 7703(b) designates the proper forum for judicial review of MSPB decisions. Section 7703(b)(1)(A) provides the general rule: "[A] petition to review a ... final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit." Section 7703(b)(2) states the exception here relevant, governing "[c]ases of discrimination subject to the provisions of [§ ]7702." See Kloeckner, 568 U.S., at 46, 133 S.Ct. 596 ("The ‘cases of discrimination’ in § 7703(b)(2)'s exception ... are mixed cases, in which an employee challenges as discriminatory a personnel action appealable to the MSPB."). Such cases "shall be filed under [the enforcement sections of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. ], as applicable." § 7703(b)(2). Those enforcement provisions "all authorize suit in federal district court." Kloeckner, 568 U.S., at 46, 133 S.Ct. 596 (citing, inter alia, 42 U.S.C. §§ 2000e–16(c), 2000e–5(f) ; 29 U.S.C. § 633a(c) ; § 216(b)). Thus, if the MSPB decides against the employee on the merits of a mixed case, the statute instructs her to seek review in federal district court under the enforcement provision of the relevant antidiscrimination laws. § 7703(b)(2) ; see Kloeckner, 568 U.S., at 56, n. 4, 133 S.Ct. 596.³

Federal district court is also the proper forum for judicial review, we held in Kloeckner, when the MSPB dismisses a mixed case on procedural grounds. Id ., at 50, 56, 133 S.Ct. 596. We rested that conclusion on this syllogism: "Under § 7703(b)(2), ‘cases of discrimination subject to [ § 7702 ]’ shall be filed in district court." Id., at 50, 133 S.Ct. 596 (alteration in original). Further, "[u]nder § 7702(a)(1), [mixed cases qualify as] ‘cases of discrimination subject to [ § 7702 ].’ " Ibid. (third alteration in original). Thus, "mixed cases shall be filed in district court." Ibid. That syllogism, we held, holds true whether the dismissal rests on procedural grounds or on the merits, for "nowhere in the [CSRA's] provisions on judicial review" is a distinction drawn between MSPB merits decisions and procedural rulings. Id., at 51, 133 S.Ct. 596.

The instant case presents this question: Where does an employee seek judicial review when the MSPB dismisses her civil-service case alleging discrimination neither on the merits nor on a procedural ground, but for lack of jurisdiction?

B

Anthony Perry worked at the U.S. Census Bureau until 2012. 829 F.3d 760, 762 (C.A.D.C.2016). In 2011, Perry received notice that he would be terminated because of spotty attendance. Ibid. Later that year, Perry and...