Supreme Court Reaffirms Where Federal Employees Can Appeal ‘Mixed Case’ Claims

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By on July 17, 2017 in Court Cases with 0 Comments

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Five years ago in Kloeckner vs. Solis, the Supreme Court defined a “mixed case” as a federal employee appealing a serious adverse employment action and lodging a federal antidiscrimination law claim at the same time. At the time, it ruled that “mixed cases” must be appealed to the federal district court level.

Last month, the Supreme Court further clarified where “mixed cases” must be adjudicated when it heard arguments in Perry vs. Merit Systems Protection Board. In a 7-2 decision, the Court determined that a “mixed case” dismissed by the Merit Systems Protection Board (MSPB) on jurisdictional grounds must be appealed to the federal district court as well.

According to the Supreme Court decision, Anthony Perry was working for the United States Census Bureau in 2011 when he received notice that he would be terminated for spotty attendance. He reached a settlement with the Bureau where he accepted a 30-day suspension and early retirement, but he had to dismiss discrimination claims that he filed separately with the Equal Employment Opportunity Commission (EEOC).

When Perry retired, he appealed his suspension and retirement to the MSPB, claiming discrimination based on race, age and disability, and retaliation for prior discrimination claims. Perry said that the settlement did not stand in the way because he was coerced by the Census Bureau to sign it. However, an MSPB administrative judge (AJ) ruled that Perry failed to prove he was coerced, and the AJ dismissed the case on grounds that Perry’s retirement was voluntary.

Since voluntary actions cannot be appealed to the Board, it is not within their jurisdiction, so the MSPB informed Perry that he could seek judicial review in the Federal Circuit Court of Appeals.

However, Perry still had his federal antidiscrimination case, which could only be appealed to a federal district court. Perry tried to appeal his “mixed case” to the District of Columbia Circuit Court – basing his reasoning on Kloeckner vs. Solis. But, the D.C. Circuit ruled it lacked the jurisdiction to hear it and transferred it to the Federal Circuit, because the MSPB dismissed Perry’s case on jurisdictional grounds and not procedural grounds, as had been established in Kloeckner.

During the Supreme Court hearing, attorneys representing the federal government argued that there was a distinction between MSPB procedural and jurisdictional matters which should determine whether a “mixed case” could be heard in whole by federal district court (if it was a procedural dismissal) or had to be split between the federal district and Federal Circuit courts (if it was a jurisdictional dismissal). However, the Supreme Court’s majority ruling – authored by Justice Ruth Bader Ginsburg – stated that there is no distinction between the two types of MSPB dismissals, and that all “mixed cases” can be heard in whole at the federal district court level.

With its decision in Perry vs. Merit Systems Protection Board, the Supreme Court reaffirmed its decision in Kloeckner vs. Solis and once again made it clear where federal employees can file “mixed case” appeals of any sort.

© 2019 Mathew B. Tully, Esq.. All rights reserved. This article may not be reproduced without express written consent from Mathew B. Tully, Esq..

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About the Author

Mathew B. Tully is a founding partner of Tully Rinckey PLLC. He concentrates his practice on representing federal government employees and military personnel and can be reached at [email protected]. To schedule a meeting with one of the firm’s federal employment law attorneys call 202-787-1900. The information in this column is not intended as legal advice.

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