SCOTUS: "Mixed" MSPB cases are reviewable in district court, not circuit court

The US Supreme Court has decided that when the Merit Systems Protection Board dismisses a "mixed" case on jurisdictional grounds, the proper forum for judicial review is district court rather than the Federal Circuit. Perry v. Merit Systems Protection Board (US Supreme Ct 06/23/2017 (7-2) [Opinion text]. And Justice Gorsuch filed a cogent and revealing dissent.

The Civil Service Reform Act of 1978 (CSRA) gives the Merit Systems Protection Board (MSPB) the power to review certain serious personnel actions against federal employees. If an employee asserts rights under the CSRA only, MSPB decisions are subject to judicial review exclusively in the Federal Circuit. If the employee invokes only federal antidiscrimination law, the proper forum for judicial review is federal district court.

When an employee complains of a serious adverse employment action and attributes the action, in whole or in part, to bias based on race, gender, age, or disability, then that's called a “mixed case.” If MSPB dismisses a mixed case on the merits or for procedural reasons, then review can be had in district court only.

Anthony Perry's case was dismissed by MSPB on the ground that there was a lack of jurisdiction. So the question before the Court was where does Perry go in order to get judicial review? The Court held:

"(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.

The government argued that Perry ought to split his case between the Federal Circuit and the district court. The Supreme Court majority was concerned about the "expense, delay, and inconvenience of requiring employees to sever inextricably related claims, resorting to two discrete appellate forums, in order to safeguard their rights." So. Hey. Send all the claims to district court. Voila.

Justice Gorsuch dissented. Here are some classic lines from his dissenting opinion:

  • Anthony Perry asks us to tweak a congressional statute—just a little—so that it might (he says) work a bit more efficiently.
  • Respectfully, I would decline Mr. Perry’s invitation and would instead just follow the words of the statute as written.
  • Having to contest Board rulings on civil service and discrimination issues in different courts, he says, is a hassle.
  • Mr. Perry’s is an invitation I would run from fast. If a statute needs repair, there’s a constitutionally prescribed way to do it. It’s called legislation.
  • At the end of a long day, I just cannot find anything preventing us from applying the statute as written—or heard any good reason for deviating from its terms. Indeed, it’s not even clear how overhauling the statute as Mr. Perry wishes would advance the efficiency rationale he touts. The only thing that seems sure to follow from accepting his invitation is all the time and money litigants will spend, and all the ink courts will spill, as they work their way to a wholly remodeled statutory regime. Respectfully, Congress already wrote a perfectly good law. I would follow it.

Whether right or wrong on the ultimate outcome, I respect jurists who try their best to apply statutes the way they are written. If it's broke, let Congress fix it.

[For recent decisions and pending employment law cases, see Supreme Court Watch.]