Perry v. Merit Systems Protection Bd.
Perry v. Merit Systems Protection Bd.
Opinion
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),
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,
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,
I
A
The CSRA "establishes a framework for evaluating personnel actions taken against federal employees."
Kloeckner v. Solis,
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.' "
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."
*1981
Kloeckner,
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,
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,
*1982
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,
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.
After retiring, Perry appealed his suspension and retirement to the MSPB.
An MSPB administrative law judge (ALJ) eventually determined that Perry had failed to prove that the settlement was coerced.
Perry v. Department of Commerce,
No. DC-0752-12-0486-B-1 etc. (Dec. 23, 2013) (initial decision), App. to Pet. for Cert. 32a, 47a. Presuming Perry's retirement to be voluntary, the ALJ dismissed his case.
The MSPB affirmed the ALJ's decision. See
Perry v. Department of Commerce,
Perry instead filed a
pro se
petition for review in the D.C. Circuit.
*1983
The D.C. Circuit held that the Federal Circuit had jurisdiction over Perry's petition and transferred his case to that court under
The D.C. Circuit rejected Perry's argument that
Powell
was undermined by this Court's intervening decision in
Kloeckner,
which held MSPB procedural dispositions of mixed cases reviewable in district court.
We granted certiorari to review the D.C. Circuit's decision, 580 U.S. ----,
II
Federal employees, the Government acknowledges, have a right to pursue claims of discrimination in violation of federal law in federal district court. Nor is there any doubt that the Federal Circuit lacks authority to adjudicate such claims. See § 7703(c) (preserving "right to have the facts subject to trial de novo by the reviewing court" in any "case of discrimination" brought under § 7703(b)(2) ). The sole question here disputed: What procedural route may an employee in Perry's situation take to gain judicial review of the MSPB's jurisdictional disposition of a complaint that alleges adverse action taken under the CSRA in whole or in part due to discrimination proscribed by federal law?
The Government argues, and the dissent agrees, that employees, situated as Perry is, must split their claims, appealing MSPB nonappealability rulings to the Federal Circuit while repairing to the district court for adjudication of their discrimination claims. As Perry sees it, one stop is all he need make. Exclusively competent to adjudicate "[c]ases of discrimination," § 7703(b)(2), the district court alone can resolve his entire complaint, Perry urges; the CSRA, he maintains, forces no bifurcation of his case.
Section 7702(a)(1), the Government contends, marks a case as mixed only if the employee "has been affected by an action which the employee ... may appeal to the [MSPB]." Brief for Respondent 15, 17-19, 21. An MSPB finding of nonappealability removes a case from that category, the Government asserts, and hence, from the purview of "[c]ases of discrimination" described in § 7703(b)(2). Id ., at 21. Only this reading of the CSRA's provisions on judicial review-one ordering Federal Circuit *1984 review of any and all MSPB appealability determinations-the Government maintains, can ensure nationwide uniformity in answering questions arising under the CSRA. Id., at 26-32.
Perry emphasizes in response that § 7702(a)(1)(A)'s language, delineating cases in which an employee "has been affected by an action which the employee ... may appeal to the [MSPB]," is not confined to cases an employee may
successfully
appeal to the Board. Brief for Petitioner 19. The MSPB's adverse ruling on the merits of his claim that the settlement was coerced, Perry argues, "did not retroactively divest the MSPB of jurisdiction to render that decision."
Id.,
at 21. The key consideration, according to Perry, is not what the MSPB determined about appealability; it is instead the nature of an employee's
claim
that he had been "affected by an action [appealable] to the [MSPB]" (here, suspension for more than 14 days and involuntary removal, see § 7512(1), (2) ). See
id
., at 11, 23-24. Perry draws support for this argument from our recognition that "a party [may] establish jurisdiction at the outset of a case by means of a nonfrivolous assertion of jurisdictional elements,"
Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.,
Perry, we hold, advances the more sensible reading of the statutory prescriptions. The Government's procedure-jurisdiction distinction, we conclude, is no more tenable than "the merits-procedure distinction" we rejected in
Kloeckner,
A
As just noted, a nonfrivolous allegation of jurisdiction generally suffices to establish jurisdiction upon initiation of a case. See
Jerome B. Grubart, Inc.,
We announced a clear rule in
Kloeckner
: "[M]ixed cases shall be filed in district court."
EEOC regulations, see
supra,
at 1980, are in accord: The defining feature of a "mixed case appeal," those regulations instruct, is the employee's "
alleg [ation]
that an appealable agency action was effected, in whole or in part, because of discrimination."
*1985
See,
e.g.,
Downey v. Runyon,
Because Perry "complain[ed] of a personnel action serious enough to appeal to the MSPB" (in his case, a 30-day suspension and involuntary removal, see
supra,
at 1982; § 7512(1), (2) ) and "allege[d] that the [personnel] action was based on discrimination," he brought a mixed case.
Kloeckner,
B
The Government rests heavily on a distinction between MSPB merits and procedural decisions, on the one hand, and the Board's jurisdictional rulings, on the other. 6 The distinction has multiple infirmities.
"If Congress had wanted to [bifurcate judicial review,] send[ing] merits decisions to district court and procedural dismissals to the Federal Circuit," we observed in
Kloeckner,
"it could just have said so."
The Government's attempt to separate jurisdictional dismissals from procedural dismissals is newly devised. In Kloeckner, the Government agreed with the employee that there was "no basis" for a procedure-jurisdiction distinction. Brief for Respondent, O.T. 2012, No. 11-184, p. 25, n. 3; see Reply to Brief in Opposition, O.T. 2012, No. 11-184, pp. 1-2 (stating employee's *1986 agreement with the Government that procedural and jurisdictional dismissals should travel together). Issues of both kinds, the Government there urged, should go to the Federal Circuit. Drawing such a distinction, the Government observed, would be "difficult and unpredictable." Brief in Opposition in Kloeckner, O.T. 2012, No. 11-184, p. 15 (internal quotation marks omitted). Now, in light of our holding in Kloeckner that procedural dismissals should go to district court, the Government has changed course, contending that MSPB procedural and jurisdictional dismissals should travel different paths. 8
A procedure-jurisdiction distinction for purposes of determining the court in which judicial review lies, as both parties recognized in
Kloeckner,
would be perplexing and elusive. If a 30-day suspension followed by termination becomes nonappealable to the MSPB when the Board credits a release signed by the employee, one may ask why a determination that the employee complained of such adverse actions (suspension and termination) too late,
i.e.,
after a Board-set deadline, does not similarly render the complaint nonappealable. In both situations, the Board disassociates itself from the case upon making a threshold determination. This Court, like others, we note, has sometimes wrestled over the proper characterization of timeliness questions. Compare
Bowles v. Russell,
Just as the proper characterization of a question as jurisdictional rather than procedural can be slippery, the distinction between jurisdictional and merits issues is not inevitably sharp, for the two inquiries may overlap. See
Shoaf v. Department of Agriculture,
Distinguishing between MSPB jurisdictional rulings and the Board's procedural or substantive rulings for purposes of allocating judicial review authority between district court and the Federal Circuit is problematic for a further reason: In practice, the distinction may be unworkable. The MSPB sometimes rules on alternate grounds, one typed "jurisdictional," another either procedural or substantive. See,
e.g.,
Davenport v. Postal Service,
Desirable as national uniformity may be,
11
it should not override the expense, delay, and inconvenience of requiring employees to sever inextricably related claims, resorting to two discrete appellate forums, in order to safeguard their rights. Perry's comprehension of the complex statutory text, we are persuaded, best serves "[t]he CSRA's objective of creating an integrated scheme of review[, which] would be seriously undermined" by "parallel litigation regarding the same agency action."
Elgin,
For the reasons stated, the judgment of the United States Court of Appeals for the District of Columbia Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice GORSUCH, with whom Justice THOMAS joins, dissenting.
Anthony Perry asks us to tweak a congressional statute-just a little-so that it might (he says) work a bit more efficiently. No doubt his invitation is well meaning. But it's one we should decline all the same. Not only is the business of enacting statutory fixes one that belongs to Congress and not this Court, but taking up Mr. Perry's invitation also seems sure to spell trouble. Look no further than the lower court decisions that have already ventured where Mr. Perry says we should follow. For every statutory "fix" they have offered, more problems have emerged, problems that have only led to more "fixes" still. New challenges come up just as fast as the old ones can be gaveled down. Respectfully, I would decline Mr. Perry's invitation and would instead just follow the words of the statute as written.
Our case concerns the right of federal employees to pursue their employment grievances under the Civil Service Reform Act. Really, it concerns but a small aspect of that right. Everyone agrees that employees may contest certain adverse employment actions-generally serious ones like dismissals-before the Merit Systems Protection Board. See
First, the rule. The Act says that an employee's appeal usually "shall be filed in ... the Federal Circuit," § 7703(b)(1)(A), which then applies a deferential, APA-style standard of review familiar to administrative law, § 7703(c). No doubt this makes sense, too, for Congress established the Federal Circuit in no small part to ensure a uniform case law governs Executive Branch personnel actions and guarantees the equal treatment of civil servants without regard to geography. See
United
*1989
States v. Fausto,
Second, the exception. Congress recognized that sometimes agencies taking adverse employment actions against employees violate not just federal civil service laws, but also federal antidiscrimination laws. Usually, of course, employees who wish to pursue discrimination claims in federal district court must first exhaust those claims in proceedings before their employing agency. See,
e.g.,
42 U.S.C. § 2000e-16(c). But the Act provides another option. Employees affected by adverse employment actions that trigger the Act's jurisdiction may (but need not) elect to exhaust their discrimination claims before the Board. See
Putting these directions together, the statutory scheme is plain. Disputes arising under the civil service laws head to the Federal Circuit for deferential review; discrimination cases go to district court for de novo review. Congress allowed employees an elective option to bring their discrimination claims to the Board, but didn't allow this option to destroy the framework it established for the resolution of civil service questions. These rules provide straightforward direction to courts and guidance to federal employees who often proceed pro se .
These rules also tell us all we need to know to resolve our case. Construing his
pro se
filings liberally, Mr. Perry pursued civil service and discrimination claims before the Board without first exhausting his discrimination claim before his own agency. The Board held that it couldn't hear Mr. Perry's claims because he hadn't suffered an adverse employment action sufficient to trigger its jurisdiction under the Act. Mr. Perry now seeks to contest the Board's assessment of its jurisdiction and win a review there that so far he's been denied. See,
e.g.,
Brief for Petitioner 24. No doubt, too, he wants the chance to proceed on the merits before the Board for good reason: A victory there is largely unappealable by the government. See
Mr. Perry, though, invites us to adopt a very different regime, one that would have the
district court
review the Board's ruling on the scope of its jurisdiction. Having to contest Board rulings on civil service and discrimination issues in different courts, he says, is a hassle. So, he submits, we should fix the problem by allowing civil
*1990
service law questions to proceed to district court whenever an employee pursues a case of discrimination before the Board. In support of his proposal, he points us to a line of lower court cases associated with
Williams v. Department of Army
. And there, indeed, the Federal Circuit adopted a fix much like what Mr. Perry now proposes: allowing civil service claims to tag along to district court with discrimination claims because, in its judgment, "[f]rom the standpoint of judicial economy, consideration of all issues by a single tribunal is clearly preferable."
Mr. Perry's is an invitation I would run from fast. If a statute needs repair, there's a constitutionally prescribed way to do it. It's called legislation. To be sure, the demands of bicameralism and presentment are real and the process can be protracted. But the difficulty of making new laws isn't some bug in the constitutional design: it's the point of the design, the better to preserve liberty. Besides, the law of unintended consequences being what it is, judicial tinkering with legislation is sure only to invite trouble. Just consider the line of lower court authority Mr. Perry asks us to begin replicating now in the U.S. Reports. Having said that district courts should sometimes adjudicate civil service disputes, these courts have quickly and necessarily faced questions about how and when they should do so. And without any guidance from Congress on these subjects, the lower courts' solutions have only wound up departing further and further from statutory text-and invited yet more and more questions still. A sort of rolling, case-by-case process of legislative amendment.
Take this one. Recall that the statute says that
de novo
standard of review applies to cases filed in district court. See
But that's just the beginning. The statute allows only cases "filed under" certain specified federal antidiscrimination statutes to proceed to district court. Those laws (of course) prescribe remedies to vindicate harms associated with discrimination, including equitable relief and damages. See, e.g., 29 U.S.C. § 633a(c). But what remedies can or should a district court afford a plaintiff in a run-of-the-mill civil service dispute that lands there? Might a plaintiff be forced to litigate in the district court only to be told at the end that no remedial authority exists? May a district court fashion some remedy in the absence of a statutory mandate to do so? Should it only adopt APA-style remedies prescribed by the Act for (again) the Federal Circuit ? Who knows.
Answer all those questions and still more arise. What happens if the Board fully remedies an employee's discrimination claim, but rejects his simultaneously litigated civil service dispute? Should the employee go to district court with a stand-alone civil service complaint, to be nominally "filed" and adjudicated "under" a federal antidiscrimination statute? Or has by this point the case somehow transformed into one that should be sent to the
*1991
Federal Circuit?
Williams
itself anticipated these particular problems but (notably) declined to take any stab at answering them. See
Still more and even curiouser questions follow. In some cases a district court will find the employee's discrimination claim meritless. When that happens, what should the district court do with a tag along civil service claim? Some lower courts after
Williams
have suggested that cases like these should be transferred back to the Federal Circuit in the "interests of judicial economy."
Nater v. Riley,
And speaking of judicial economy, you might wonder what happened to the (no doubt efficient) policy Congress itself articulated when it declared that civil service issues should be decided by the Federal Circuit so they might be subject to a uniform body of appellate case law. See
Fausto,
By this point, you might wonder too if accepting Mr. Perry's invitation will even wind up saving him (or those like him) any hassle at all. Not only because of all the complications that arise from accepting his invitation. But also because, regardless which court hears his case, Mr. Perry should wind up in the same place anyway. If the reviewing court (whichever court that may be) finds that the Board was wrong and it actually possessed jurisdiction over his civil service and discrimination claims, presumably the court will seek to send Mr. Perry back to the Board to adjudicate those claims. See Reply Brief 18 (agreeing with this point). Meanwhile, if the reviewing court concludes that the Board was right and it lacked jurisdiction over Mr. Perry's claims, presumably the court will require him to exhaust his remaining discrimination claim in normal agency channels before litigating it in court. So even if we take up Mr. Perry's ambitious invitation to overhaul the statute, is it even clear that we would save him and those like him any hassle at all? Or might future courts respond to this development with a yet further statutory rewrite, suggesting next that claimants should be allowed to proceed in district court on the merits of both their civil service and discrimination claims? Even where (as here) the discrimination claim remains unexhausted before any agency and the civil service claim isn't one even the Board could hear?
Mr. Perry's proposal for us may be seriously atextual and practically unattractive, but perhaps it has one thing going for it, he says. While we of course owe no fealty to
Williams
or other lower court opinions, and are free to learn from, rather than repeat, their misadventures, Mr. Perry suggests our decision in
Kloeckner v. Solis,
But I just don't see in
Kloeckner
what Mr. Perry would have us find there. This Court was not asked to decide-and did not decide-whether issues arising under the civil service laws go to district court. Rather, we were asked to answer the much more prosaic question where an employee seeking to pursue
only
a discrimination claim should proceed. See Pet. for Cert. in
Kloeckner v. Solis,
O.T. 2012, No. 11-184, p. i ("If the [Board] decides a mixed case without determining the merits of
the discrimination claim,
is the court with jurisdiction over
that claim
the Court of Appeals for the Federal Circuit or a district court?" (emphasis added)). And this Court simply (and quite rightly) responded to that question by holding that "[a] federal employee who
claims
that an agency action appealable to the [Board]
violates an antidiscrimination statute
... should seek judicial review in district court, not in the Federal Circuit ... whether the [Board] decided her case on procedural grounds or instead on the merits."
Kloeckner,
Mr. Perry replies that
Kloeckner
endorsed the idea that something called "mixed cases" should go to district court. But that term does not mean what he thinks it means. The phrase "mixed case" appears nowhere in the statute. Instead, it is but "lingo [from] the applicable regulations."
Neither did Kloeckner redefine the term "mixed case" in some novel way. After discussing the regulatory definition of "mixed cases," the decision proceeds to say just this:
"Under § 7703(b)(2), 'cases of discrimination subject to [ § 7702 ]' shall be filed in district court. Under § 7702(a)(1), the 'cases of discrimination subject to [ § 7702 ]' are mixed cases -those appealable to the [Board] and alleging discrimination. Ergo, mixed cases shall be filed in district court."568 U.S., at 50 ,133 S.Ct. 596 (some brackets in original; emphasis added).
In context, it seems clear that this passage only seeks to restate the statute, using the term "mixed cases" as shorthand for cases that go to district court under § 7703(b)(2). And from that statute we know that only "cases of discrimination ... filed under" certain specified federal antidiscrimination statutes go to district court-no more, no less. Nothing in this passage suggests the Court meant to rewrite a regulatory term as a tool to undo a statute.
Now, admittedly, a footnote in
Kloeckner
did seem to go a step farther and assume
Williams
' view that civil service claims may tag along with discrimination claims to district court.
Kloeckner,
Notably, even the Court today doesn't read
Kloeckner
as holding that all civil service claims and issues must proceed to district court after a discrimination claim is presented to the Board. Instead, the Court says that result is justified in large measure because it will "best serv[e]" the statute's " 'objective of creating an integrated scheme of review[, which] would be seriously undermined' by 'parallel litigation.' "
Ante
at 1987 (quoting
Elgin,
Beyond its claim about the statute's purpose, the Court offers little in the way of a traditional statutory interpretation. It does not explain how the result it reaches squares with the statute's text and structure, or grapple with the arguments presented here on those counts. The Court does not explain, for example, how exactly a civil service dispute might be said to be "filed under" a federal antidiscrimination statute, what the standard of review might apply in such a matter (nowhere discussed in the statute), or what the remedial powers of the district court could be in these circumstances. And it remains far from obvious whether the Court's eventual answers to questions like these will wind up yielding a regime better for employees, or instead one just different or even a good deal worse.
Indeed, the only answer the Court supplies to any of the questions raised above lies in a footnote and seems telling. There, the Court instructs that Mr. Perry will not be able to pursue his discrimination *1994 claim if the district court agrees with the Board that it lacked jurisdiction over his claim. Ante, at 1987, n. 10. But this will surely come as a surprise to Mr. Perry, who tells us he wants to pursue a federal discrimination claim even if it isn't one the Board has jurisdiction to hear. And it comes as a surprise to me too, for as I've described and the government concedes, nothing in the statute would prevent Mr. Perry from trying to bring a discrimination claim in district court after seeking to exhaust it before his employing agency. See, e.g., Brief for Petitioner 11, 16-17, 28; Brief for Respondent 25; Tr. of Oral Arg. 17.
At the end of a long day, I just cannot find anything preventing us from applying the statute as written-or heard any good reason for deviating from its terms. Indeed, it's not even clear how overhauling the statute as Mr. Perry wishes would advance the efficiency rationale he touts. The only thing that seems sure to follow from accepting his invitation is all the time and money litigants will spend, and all the ink courts will spill, as they work their way to a wholly remodeled statutory regime. Respectfully, Congress already wrote a perfectly good law. I would follow it.
Many CSRA claimants proceed pro se . See MSPB, Congressional Budget Justification FY 2017, p. 14 (2016) ("Generally, at least half or more of the appeals filed with the [MSPB] are from pro se appellants....").
If the MSPB fails to render a "judicially reviewable action" within 120 days, an employee may, "at any time after ... the 120th day," "file a civil action [in district court] to the same extent and in the same manner as provided in" the federal antidiscrimination laws invoked by the employee. § 7702(e)(1).
Our decision in
Kloeckner v. Solis,
Our interpretation is also consistent with another CSRA provision, § 7513(d), which provides that "[a]n employee against whom an action is taken under this section is entitled to appeal to the ... Board." Because the "entitle[ment] to appeal" conferred in § 7513(d) must be determined before an appeal is filed, such a right cannot depend on the outcome of the appeal.
If, as the dissent and the Government argue, see
post,
at 1992 - 1993; Brief for Respondent 19-26, 33-35, Perry's case is not "mixed," one can only wonder what kind of case it is, surely not one asserting rights under the CSRA only, or one invoking only antidiscrimination law. See
supra,
at 1979 - 1980. This is, of course, a paradigm mixed case: Perry alleges serious personnel actions (suspension and forced retirement) caused in whole or in part by prohibited discrimination. So did the employee in
Kloeckner
. She alleged that her firing (a serious personnel action) was based on discrimination. See
Notably, the dissent ventures no support for the principal argument made by the Government, i.e., that MSPB jurisdictional dispositions belong in the Federal Circuit, procedural and merits dispositions, in district court.
As Judge Dyk, dissenting in
Conforto
v
. Merit Systems Protection Bd
.,
This is not the first time the Government has changed its position. Before the Federal Circuit in
Ballentine v. Merit Systems Protection Bd
.,
In civil litigation, a release is an affirmative defense to a plaintiff's claim for relief, not something the plaintiff must anticipate and negate in her pleading. See Fed. Rule Civ. Proc. 8(c)(1) (listing among affirmative defenses "release" and "waiver");
Newton v. Rumery,
If a reviewing court "agree[d] with the Board's assessment," then Perry would indeed have "lost his chance to pursue his ... discrimination claim[s]," post, at 1989, for those claims would have been defeated had he voluntarily submitted to the agency's action.
In
Kloeckner,
we rejected the Government's national uniformity argument. See
In both
Elgin v. Department of Treasury,
* * *
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