Supreme Court Decides Federal Employee ‘Mixed Case’ Court Jurisdiction Issue

Confronted with the question which court (Federal Circuit Court of Appeals or the U.S. District Court) is the proper forum for challenging a MSPB decision dismissing a federal employee’s appeal for lack of jurisdiction in a so-called “mixed case,” the U.S. Supreme Court has stepped in and settled the matter.

In Perry v Merit Systems Protection Board (U.S. Supreme Court No. 16-399, 6/23/17), the Court waded into the somewhat confusing world of “mixed cases” brought by federal employees challenging an adverse action. The question was simply, when in such a case the MSPB holds that it has no jurisdiction over the employee’s appeal and dismisses the appeal, where does the employee go to file a challenge in court? District Court or Federal Circuit?

The court has now ruled in a 7-2 decision written by Justice Ginsburg that the district court is the proper place for a federal employee to take his mixed case challenge.

“Mixed Case”

First, what is a “mixed case?”

This is a situation where a federal employee appeals an adverse action (removal, demotion, etc.), in part based on a challenge of unlawful discrimination (race, gender, age, disability), but also based on violations of protections afforded the employee under the Civil Service Reform Act of 1978 (CSRA).

A challenge to an action alleging only unlawful discrimination is appealed to a US district court once the administrative process has run its course. On the other hand, a challenge to an action based only on violations of CSRA protections after being administratively handled by the Merit Systems Protection Board (MSPB), is appealed to the U.S. Court of Appeals for the Federal Circuit.

Supreme Court Ruling

As Justice Ginsburg points out, if the MSPB dismissed such a mixed case on its merits, then the employee may bring his complaint in a US District Court as opposed to the Federal Circuit. Further, if MSPB dismissed the mixed case on procedural grounds, same result—the district court has jurisdiction. So, what happens when the MSPB dismisses the mixed case on jurisdictional grounds? (Opinion pp. 5-6)

Now we know. The employee files suit in the district court.

Case History

Mr. Perry was employed by the U.S. Census Bureau until 2011 when notified that he might be terminated due to “spotty attendance,” he signed a settlement agreeing to a 30-day suspension and early retirement in lieu of removal. As part of that agreement, Perry dismissed discrimination claims he had filed with the EEOC and waived his MSPB appeal rights insofar as his suspension and retirement were concerned. (Opinion p. 6)

Once he followed through with his agreement and retired, Perry appealed his suspension and retirement to the MSPB, alleging discrimination, retaliation, and coercion in reaching the settlement. (p. 6)

The Board’s administrative law judge (ALJ) found that Perry failed to prove coercion, ergo his retirement was voluntary, ergo his waiver of his appeal rights would be upheld, ergo the MSPB had no jurisdiction, ergo Perry’s appeal was dismissed. The full Board agreed, notifying Perry he could appeal the jurisdictional decision to the Federal Circuit, the only forum for challenging MSPB rulings. (pp. 6-7)

Inexplicably, Perry took his case to the U.S. Court of Appeals for the DC Circuit and that court ordered it transferred to the Federal Circuit. It is that order that Perry brought to the Supreme Court. “We granted certiorari to review the D.C. Circuit’s decision…which accords with the Federal Circuit’s decision in Conforto v Merit Systems Protection Bd.” [citation omitted] (p. 8)

The government (and the 2 dissenting Justices) argued that Perry must split his claim—he has to take the MSPB no jurisdiction ruling to the Federal Circuit, and he has to try his discrimination contentions in the district court. “As Perry sees it, one stop is all he need make.” (p. 9)

Finding that Perry’s position “advances the more sensible reading of the statutory prescriptions…[over] the Government’s procedure-jurisdiction distinction…” the Court adopts Perry’s approach.

Here is the Court’s holding:

(1) the Federal Circuit is the proper review forum when the MSPB disposes of complaints arising solely under the CSRA; and (2) in mixed cases, such as Perry’s, in which the employee (or former employee) complains of serious adverse action prompted, in whole or in part, by the employing agency’s violation of federal antidiscrimination laws, the district court is the proper forum for judicial review. (p. 17)

The Court bounces the case back to the US Court of Appeals for the DC Circuit to get it right, which presumably means sending it along to the U.S. District Court to unravel.


Interestingly in one of his first actions as a member of the Court, Justice Gorsuch filed a dissenting opinion, joined in by Justice Thomas. It is interesting reading, starting with this opening: “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.” (Dissent, p. 1) He summarized, “Respectfully, Congress already wrote a perfectly good law. I would follow it.” (p. 12)

Perry v. MSPB (16–399)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.