(CN) – The U.S. Supreme Court Friday held the district courts are the appropriate venue to hear federal workers’ appeals of adverse employment actions, rejecting arguments that the law requires a bifurcated procedure.
Anthony Perry, a former Census bureau worker, claimed his suspension from work and subsequent forced early retirement were discriminatory, but the case was dismissed by the Merit Systems Protection Board for lack of jurisdiction.
In July 2016, the D.C. Circuit ruled that if Perry wants to appeal the board’s decision, he must do so in the U.S. Appeals Court for the Federal Circuit.
The ruling limited the reach of the 2012 U.S. Supreme Court decision in Kloeckner v. Solis that said federal courts may review an MSPB dismissal on procedural grounds of a federal worker case alleging mixed claims.
These so-called “mixed cases” are complaints that allege both discrimination and a violation of civil service rights.
In Kloeckner, the Supreme Court said district court review is still available to the employee even if the MSPB didn’t reach the merits on his bias claim.
But the D.C. Circuit’s ruling raised the question of whether Kloeckner contradicted its 1998 ruling in Powell v. Department of Defense, in which it held that the mixed-case exception in the Civil Service Reform Act allowing a district court to review an MSPB decision doesn’t apply when the case is dismissed for lack of jurisdiction.
Perry received a termination notice in 2011 for alleged attendance problems, and he eventually settled the notice in return for a 30-day suspension and early retirement.
However, in 2012 he appealed his suspension and retirement, claiming the Census Bureau’s actions resulted from age, race and disability discrimination, as well as retaliation.
When the case came before the Merit Systems Protection Board it said it was prohibited from hearing the case by the Civil Service Reform Act, which states that it can’t review personnel actions voluntarily accepted by the affected employee.
The MSPB determined the issues Perry was trying to appeal were provisions of a voluntary settlement, and dismissed his claims for lack of jurisdiction.
Perry then appealed to the D.C. Circuit essentially arguing that the Supreme Court’s ruling in Kloeckner should take precedence over the circuit’s ruling in Powell.
But the D.C. Circuit said Perry was effectively comparing apples to oranges.
In Kloeckner, it said, the employee raised a mixed case, but it was dismissed by the MSPB because it wasn’t timely filed.
What the Supreme Court said, according to the D.C. Circuit, is that despite this, she was still affected by an action appealable to the board.
In Perry, the D.C. Circuit said it held the plaintiff didn’t have a case because he never was subjected to an adverse job action.
“For these reasons, procedural dismissals can be understood to involve an employee ‘affected by an action which he may appeal to the board.’ in a way that jurisdiction dismissals cannot. That suffices to show that Kloeckner did not necessarily overrule or eviscerate Powell,” the D.C. Circuit said.
On Friday, Justice Ruth Bader Ginsburg sought to clarify the high court’s meaning in its early decision.
The basic issue, she said in writing for the majority, is what procedural route must an employee in Perry’s situation take to gain jurisdictional review of an MSPB decision to dismiss a federal worker’s complaint?
“The Government argues, and the dissent agrees, that employees, situated as Perry is, must split their claims, appealing MSPB non-appealability 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,” Ginsburg wrote.
“The government’s proposed distinction … has multiple infirmities,” she said. “Had Congress wanted to bifurcate judicial review, sending merits and procedural decisions to district court and jurisdictional dismissals to the Federal
Circuit, it could have said so. The Government’s newly devised attempt to distinguish jurisdictional
dismissals from procedural dismissals is a departure from its position in Kloeckner. Such a distinction, as both parties recognized in Kloeckner, would be perplexing and elusive.
“We hold today that the review route remains the same when the MSPB types its dismissal of a mixed case as
‘jurisdictional,’ Ginsburg said. “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 resolution of the claims employees present.”
But in a dissent in which he was joined by Justice Clarence Thomas, Justice Neil Gorsuch said what Perry actually asked of the court was for it to “tweak a congressional statute — just a little — so that it might (he says) work a bit
“No doubt his invitation is well meaning. But it’s one we should decline all the same,” Gorsuch said. “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.”