Justices Hand Federal Workers a Win on Appeal Rights

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By Kevin McGowan

A former Census Bureau employee who challenged his termination as both unwarranted and based on discrimination—a “mixed case”—can appeal the Merit Systems Protection Board’s adverse ruling to a federal district court, even though the MSPB dismissed for lack of jurisdiction, a divided U.S. Supreme Court ruled ( Perry v. Merit Sys. Prot. Bd. , U.S., No. 16-399, 6/23/17 ).

By a 7-2 vote, the justices June 23 reversed an appeals court decision that former federal worker Anthony Perry’s only option was to appeal the MSPB’s ruling to the U.S. Court of Appeals for the Federal Circuit.

Instead, the court said when a federal worker pursues an administrative case alleging his agency violated both the Civil Service Reform Act and federal anti-discrimination laws, a federal district court can review from scratch the MSPB’s disposition of the claims.

That’s true regardless of whether the MSPB decided the merits of the bias claims, dismissed them for procedural reasons, or said it lacked jurisdiction, Justice Ruth Bader Ginsburg wrote.

Victory for Federal Workers

“It’s a good win” for federal employees, said Michael Foreman, a Pennsylvania State University law professor who filed an amicus brief for the Metropolitan Washington Employment Lawyers Association supporting Perry.

Federal courts have branded as “byzantine” the administrative “maze” that federal workers must follow to pursue discrimination claims against their employers, Foreman told Bloomberg BNA June 23. That process can be “extremely difficult to navigate for lawyers, much less employees,” he said.

The court’s decision allowing federal workers to appeal the MSPB’s rulings in mixed cases to federal district courts doesn’t make the administrative process any easier, Foreman said. But it provides “bottom-line protection” that federal workers can get their discrimination claims heard from scratch in district court after the MSPB rules, he said.

Christopher Landau, who represented Perry in the Supreme Court, called the ruling a victory for “all federal employees who seek to vindicate their legal rights in court.”

“Congress established a statutory scheme that sensibly allows federal employees to pursue both serious civil-service claims and discrimination claims in a single proceeding,” Landau said in a June 23 email to Bloomberg BNA.

The justices rejected a legal interpretation that would have subjected federal employees to “expense, delay, and inconvenience” by forcing them to split their “inextricably related claims” between the Federal Circuit and the district court, said Landau, who is with Kirkland & Ellis LLP in Washington.

The Justice Department, which represented the MSPB, didn’t respond to Bloomberg BNA’s request for comment.

Dissent Focuses on Text

Justice Neil Gorsuch, an active questioner during the court’s April 17 oral argument, wrote his first dissenting opinion, joined by Justice Clarence Thomas.

Gorsuch disagreed with the majority’s reasoning that a 2012 Supreme Court decision that said federal workers can get review in federal district court when the MSPB dismisses their mixed cases on procedural grounds requires the same result when the MSPB finds it lacks jurisdiction.

Instead, the court should apply the Civil Service Reform Act “as written” and resist Perry’s invitation to “tweak” the statute, Gorsuch wrote.

The majority’s statutory rewrite will have “unintended consequences” that skew the act’s intent and won’t really help federal employees, he said.

“Respectfully, Congress already wrote a perfectly good law,” Gorsuch wrote. “I would follow it.”

Court Leans on Precedent

The majority, however, said the high court in Kloeckner v. Solis already considered and rejected many of the arguments the government raised for requiring Federal Circuit review in Perry’s case.

The civil service statute provides that the Federal Circuit should hear workers’ appeals from the MSPB, and mixed cases are a narrow exception, the Justice Department argued. Congress wanted to encourage uniform interpretation of federal civil service rules, so it centralized appeals in the Federal Circuit rather than allow federal courts across the country to issue conflicting decisions, the government said.

The MSPB dismissed Perry’s case for lack of jurisdiction because it said he left the Census Bureau under a voluntary settlement in which he released his discrimination claims, the Justice Department said.

The MSPB’s power under the Civil Service Reform Act is limited to serious “adverse” personnel actions. Perry’s legal argument that the MSPB wrongly interpreted its jurisdiction in his case is exactly the type of issue Congress meant the Federal Circuit to decide, the government argued.

The Kloeckner decision holds federal workers whose mixed cases are dismissed by the MSPB for procedural reasons can take their claims to a federal district court rather than the Federal Circuit.

Nothing in the Civil Service Reform Act requires a different result when the MSPB says it’s dismissing a worker’s bias claims for lack of “jurisdiction,” Ginsburg wrote.

Instead, Kloeckner supports the conclusion that if the MSPB dismisses a federal worker’s mixed case for any reason, including “jurisdiction,” the worker can take his bias claims to federal district court for de novo review, the court said.

“The review route remains the same when the MSPB types its dismissal of a mixed case as jurisdictional,” Ginsburg wrote. “As in Kloeckner, we are mindful that review rights should be read not to protract proceedings, increase costs, and stymie employees, but to secure expeditious resolutions of the claims employees present.”

Gorsuch in dissent said he didn’t take issue with Kloeckner. But nothing in Kloeckner supports sending issues arising solely under the Civil Service Reform Act, such as whether the MSPB has jurisdiction, to a district court for review, he said.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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