(CN) – The U.S. Supreme Court on Friday agreed to hear the case of a former Census bureau worker who is asking it to determine the appropriate venue for appealing his appeal of his suspension and forced early retirement.
Anthony Perry claimed the employment actions were discriminatory, but the case was dismissed by the Merit Systems Protection Board for lack of jurisdiction.
In July, 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 July 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.
In his writ of certiorari, Perry argues that the D.C. Circuit got it wrong. He asked to High Court to determine whether an MSPB decision disposing of a mixed case on jurisdictional grounds is subject for jurisdictional grounds in district court or in the federal circuit.
As is their custom, the Supreme Court did not explain its reasons for taking up the case.