Perry v. Merit Systems Protection Bd. , 137 S. Ct. 1975 ( 2017 )

(Slip Opinion) OCTOBER TERM, 2016 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
PERRY v. MERIT SYSTEMS PROTECTION BOARD
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 16–399. Argued April 17, 2017—Decided June 23, 2017
Under the Civil Service Reform Act of 1978 (CSRA), the Merit Systems
Protection Board (MSPB or Board) has 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. 5 U.S. C.
§7703(b)(1). If the employee invokes only federal antidiscrimination
law, the proper forum for judicial review is federal district court. See
Kloeckner v. Solis, 568 U.S. 41, 46.
An employee who complains of a serious adverse employment ac-
tion and attributes the action, in whole or in part, to bias based on
race, gender, age, or disability brings a “mixed case.” When the
MSPB dismisses a mixed case on the merits or on procedural
grounds, review authority lies in district court, not the Federal Cir-
cuit. Id., at 50, 56. This case concerns the proper forum for judicial
review when the MSPB dismisses such a case for lack of jurisdiction.
Anthony Perry received notice that he would be terminated from
his employment at the U. S. Census Bureau for spotty attendance.
Perry and the Bureau reached a settlement in which Perry agreed to
a 30-day suspension and early retirement. The settlement also re-
quired Perry to dismiss discrimination claims he had filed separately
with the Equal Employment Opportunity Commission (EEOC). After
retiring, Perry appealed his suspension and retirement to the MSPB,
alleging discrimination based on race, age, and disability, as well as
retaliation by the Bureau for his prior discrimination complaints.
The settlement, he maintained, did not stand in the way, because the
Bureau had coerced him into signing it. But an MSPB administra-
tive law judge (ALJ) determined that Perry had failed to prove that
the settlement was coerced. Presuming Perry’s retirement to be vol-
2 PERRY v. MERIT SYSTEMS PROTECTION BD.
Syllabus
untary, the ALJ dismissed his case. Because voluntary actions are
not appealable to the MSPB, the ALJ observed, the Board lacked ju-
risdiction to entertain Perry’s claims. The MSPB affirmed, deeming
Perry’s separation voluntary and therefore not subject to the Board’s
jurisdiction. If dissatisfied with the MSPB’s ruling, the Board stated,
Perry could seek judicial review in the Federal Circuit. Perry instead
sought review in the D. C. Circuit, which, the parties later agreed,
lacked jurisdiction. The D. C. Circuit held that the proper forum was
the Federal Circuit and transferred the case there. Kloeckner did not
control, the court concluded, because it addressed dismissals on pro-
cedural grounds, not jurisdictional grounds.
Held: The proper review forum when the MSPB dismisses a mixed case
on jurisdictional grounds is district court. Pp. 9–17.
(a) The Government argues that employees must split their mixed
claims, appealing MSPB nonappealability rulings to the Federal Cir-
cuit while repairing to the district court to adjudicate their discrimi-
nation claims. Perry counters that the district court alone can re-
solve his entire complaint. Perry advances the more sensible reading
of the statutory prescriptions.
Kloeckner announced a clear rule: “[M]ixed cases shall be filed in
district court.” 568 U.S., at 50; see id., at 56. The key to district
court review is the employee’s “clai[m] that an agency action appeal-
able to the MSPB violates an antidiscrimination statute listed in
§7702(a)(1).” Id., at 56 (emphasis added). Such a nonfrivolous alle-
gation of jurisdiction suffices to establish district court jurisdiction.
EEOC regulations are in accord, and several Courts of Appeals have
similarly described mixed-case appeals as those alleging an adverse
action subject to MSPB jurisdiction taken, in whole or in part, be-
cause of unlawful discrimination. Perry, who “complain[ed] of a per-
sonnel action serious enough to appeal to the MSPB” and “allege[d]
that the [personnel] action was based on discrimination,” brought a
mixed case, and district court jurisdiction was therefore proper.
Pp. 9–12.
(b) The Government’s proposed distinction—between MSPB merits
and procedural decisions, on the one hand, and the Board’s jurisdic-
tional rulings, on the other—has multiple infirmities. 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. See Kloeckner, 568 U.S., at 52. 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. The distinction between
jurisdiction and the merits is also not inevitably sharp, for the two
Cite as: 582 U. S. ____ (2017) 3
Syllabus
inquiries may overlap. And because the MSPB may issue rulings on
alternate or multiple grounds, some “jurisdictional,” others procedur-
al or substantive, allocating judicial review authority based on a sep-
arate rule for jurisdictional rulings may prove unworkable in prac-
tice. Perry’s comprehension of the complex statutory text, in
contrast, serves “[t]he CSRA’s objective of creating an integrated
scheme of review[, which] would be seriously undermined” by “paral-
lel litigation regarding the same agency action.” Elgin v. Department
of Treasury, 567 U.S. 1, 14. Pp. 12–17.
829 F.3d 760, reversed and remanded.
GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ.,
joined. GORSUCH, J., filed a dissenting opinion, in which THOMAS, J.,
joined.
Cite as: 582 U. S. ____ (2017) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–399
_________________
ANTHONY W. PERRY, PETITIONER v. MERIT
SYSTEMS PROTECTION BOARD
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 23, 2017]
JUSTICE GINSBURG delivered the opinion of the Court.
This case concerns the proper forum for judicial review
when a federal employee complains of a serious adverse
employment action taken against him, one falling within
the compass of the Civil Service Reform Act of 1978
(CSRA), 5 U.S. C. §1101 et seq., and attributes the action,
in whole or in part, to bias based on race, gender, age, or
disability, in violation of federal antidiscrimination laws.
We refer to complaints of that order, descriptively, as
“mixed cases.”
In the CSRA, Congress created the Merit Systems Pro-
tection Board (MSPB or Board) to review certain serious
personnel actions against federal employees. If an em-
ployee asserts rights under the CSRA only, MSPB deci-
sions, all agree, are subject to judicial review exclusively
in the Federal Circuit. §7703(b)(1). If the employee as-
serts no civil-service rights, invoking only federal antidis-
crimination law, the proper forum for judicial review,
again all agree, is a federal district court, see Kloeckner v.
Solis, 568 U.S. 41, 46 (2012); the Federal Circuit, while
empowered to review MSPB decisions on civil-service
2 PERRY v. MERIT SYSTEMS PROTECTION BD.
Opinion of the Court
claims, §7703(b)(1)(A), lacks authority over claims arising
under antidiscrimination laws, see §7703(c).
When a complaint presents a mixed case, and the MSPB
dismisses it, must the employee resort to the Federal
Circuit for review of any civil-service issue, reserving
claims under federal antidiscrimination law for discrete
district court adjudication? If the MSPB dismisses a
mixed case on the merits, the parties agree, review au-
thority lies in district court, not in the Federal Circuit. In
Kloeckner, 568 U.S., at 50, 56, we held, the proper review
forum is also the district court when the MSPB dismisses
a mixed case on procedural grounds, in Kloeckner itself,
failure to meet a deadline for Board review set by the
MSPB. We hold today that the review route remains the
same when the MSPB types its dismissal of a mixed case as
“jurisdictional.” As in Kloeckner, we are mindful that re-
view rights should be read not to protract proceedings,
increase costs, and stymie employees,1 but to secure expedi-
tious resolution of the claims employees present. See Elgin
v. Department of Treasury, 567 U.S. 1, 15 (2012) (empha-
sizing need for “clear guidance about the proper forum for
[an] employee’s [CSRA] claims”). Cf. Fed. Rule Civ. Proc. l.
I
A
The CSRA “establishes a framework for evaluating
personnel actions taken against federal employees.”
Kloeckner v. Solis, 568 U.S. 41, 44 (2012). For “particu-
larly serious” actions, “for example, a removal from em-
ployment or a reduction in grade or pay,” “the affected
employee has a right to appeal the agency’s decision to the
MSPB.” Ibid. (citing §§1204, 7512, 7701). Such an appeal
——————
1 Many CSRA claimants proceed pro se. See MSPB, Congressional
Budget Justification FY 2017, p. 14 (2016) (“Generally, at least half or
more of the appeals filed with the [MSPB] are from pro se appellants
. . . .”).
Cite as: 582 U. S. ____ (2017) 3
Opinion of the Court
may present a civil-service claim only. Typically, the
employee may allege that “the agency had insufficient
cause for taking the action under the CSRA.” Id., at 44.
An appeal to the MSPB, however, may also complain of
adverse action taken, in whole or in part, because of dis-
crimination prohibited by another federal statute, for
example, Title VII of the Civil Rights Act of 1964, 42
U.S. C. §2000e et seq., or the Age Discrimination in Em-
ployment Act of 1967, 29 U.S. C. §621 et seq. See 5
U.S. C. §7702(a)(1); Kloeckner, 568 U.S., at 44.
In Kloeckner, we explained, “[w]hen an employee com-
plains of a personnel action serious enough to appeal to
the MSPB and alleges that the action was based on dis-
crimination, she is said (by pertinent regulation) to have
brought a ‘mixed case.’ ” Ibid. (quoting 29 CFR §1614.302
(2012)). See also §1614.302(a)(2) (2016) (defining “mixed
case appeal” as one in which an employee “alleges that an
appealable agency action was effected, in whole or in part,
because of discrimination”). For mixed cases, “[t]he CSRA
and regulations of the MSPB and Equal Employment
Opportunity Commission (EEOC) set out special proce-
dures . . . different from those used when the employee
either challenges a serious personnel action under the
CSRA alone or attacks a less serious action as discrimina-
tory.” Kloeckner, 568 U.S., at 44–45.
As Kloeckner detailed, the CSRA provides diverse proce-
dural routes for an employee’s pursuit of a mixed case.
The employee “may first file a discrimination complaint
with the agency itself,” in the agency’s equal employment
opportunity (EEO) office, “much as an employee challeng-
ing a personnel practice not appealable to the MSPB could
do.” Id., at 45 (citing 5 CFR §1201.154(a) (2012); 29 CFR
§1614.302(b) (2012)); see §7702(a)(2). “If the agency [EEO
office] decides against her, the employee may then either
take the matter to the MSPB or bypass further adminis-
trative review by suing the agency in district court.”
4 PERRY v. MERIT SYSTEMS PROTECTION BD.
Opinion of the Court
Kloeckner, 568 U.S., at 45 (citing 5 CFR §1201.154(b); 29
CFR §1614.302(d)(1)(i)); see §7702(a)(2). “Alternatively,
the employee may initiate the process by bringing her case
directly to the MSPB, forgoing the agency’s own system for
evaluating discrimination charges.” Kloeckner, 568 U.S.,
at 45 (citing 5 CFR §1201.154(a); 29 CFR §1614.302(b));
see §7702(a)(1).
Section 7702 prescribes appellate proceedings in actions
involving discrimination. Defining the MSPB’s jurisdic-
tion in mixed-case appeals that bypass an agency’s EEO
office, §7702(a)(1) states in relevant part:
“[I]n the case of any employee . . . who—
“(A) has been affected by an action which the em-
ployee . . . may appeal to the [MSPB], and
“(B) alleges that a basis for the action was discrimi-
nation prohibited by [specified antidiscrimination
statutes], . . .
“the Board shall, within 120 days of the filing of the
appeal, decide both the issue of discrimination and the
appealable action in accordance with the Board’s ap-
pellate procedures . . . .”2
Section 7702(a)(2) similarly authorizes a mixed-case ap-
peal to the MSPB from an agency EEO office’s decision.
Then, “[i]f the MSPB upholds the personnel action
(whether in the first instance or after the agency has done
so), the employee again has a choice: She may request
additional administrative process, this time with the
EEOC, or else she may seek judicial review.” Kloeckner,
568 U.S., at 45 (citing §7702(a)(3), (b); 5 CFR §1201.161;
29 CFR §1614.303).
——————
2 If the MSPB fails to render a “judicially reviewable action” within
120 days, an employee may, “at any time after . . . the 120th day,” “file
a civil action [in district court] to the same extent and in the same
manner as provided in” the federal antidiscrimination laws invoked by
the employee. §7702(e)(1).
Cite as: 582 U. S. ____ (2017) 5
Opinion of the Court
Section 7703(b) designates the proper forum for judicial
review of MSPB decisions. Section 7703(b)(1)(A) provides
the general rule: “[A] petition to review a . . . final decision
of the Board shall be filed in the United States Court of
Appeals for the Federal Circuit.” Section 7703(b)(2) states
the exception here relevant, governing “[c]ases of discrim-
ination subject to the provisions of [§]7702.” See Kloeck-
ner, 568 U.S., at 46 (“The ‘cases of discrimination’ in
§7703(b)(2)’s exception . . . are mixed cases, in which an
employee challenges as discriminatory a personnel action
appealable to the MSPB.”). Such cases “shall be filed
under [the enforcement sections of Title VII of the Civil
Rights Act of 1964, the Age Discrimination in Employment
Act, and the Fair Labor Standards Act of 1938, 29 U.S. C.
§201 et seq.], as applicable.” §7703(b)(2). Those enforce-
ment provisions “all authorize suit in federal district
court.” Kloeckner, 568 U.S., at 46 (citing, inter alia, 42
U.S. C. §§2000e–16(c), 2000e–5(f); 29 U.S. C. §633a(c);
§216(b)). Thus, if the MSPB decides against the employee
on the merits of a mixed case, the statute instructs her to
seek review in federal district court under the enforcement
provision of the relevant antidiscrimination laws.
§7703(b)(2); see Kloeckner, 568 U.S., at 56, n. 4.3
Federal district court is also the proper forum for judicial
review, we held in Kloeckner, when the MSPB dismisses
a mixed case on procedural grounds. Id., at 50, 56. We
——————
3 Our decision in Kloeckner v. Solis, 568 U.S. 41 (2012), did not merely
assume that the civil-service component of mixed cases travels to
district court. See id., at 56, n. 4 (“If the MSPB rejects on the merits a
complaint alleging that an agency violated the CSRA as well as an
antidiscrimination law, the suit will come to district court for a decision
on both questions.” (emphasis added)). But see post, at 9–10. Charac-
teristic of “mixed cases,” the employee in Kloeckner complained of
adverse action taken, at least in part, because of discrimination. See
568 U.S., at 47. The Board dismissed that case, not for any flaw under
antidiscrimination law, but because the employee missed a deadline set
by the MSPB. See id., at 47–48.
6 PERRY v. MERIT SYSTEMS PROTECTION BD.
Opinion of the Court
rested that conclusion on this syllogism: “Under §7703(b)(2),
‘cases of discrimination subject to [§7702]’ shall be filed in
district court.” Id., at 50 (alteration in original). Further,
“[u]nder §7702(a)(1), [mixed cases qualify as] ‘cases of
discrimination subject to [§7702].’ ” Ibid. (third alteration
in original). Thus, “mixed cases shall be filed in district
court.” Ibid. That syllogism, we held, holds true whether
the dismissal rests on procedural grounds or on the merits,
for “nowhere in the [CSRA’s] provisions on judicial review”
is a distinction drawn between MSPB merits decisions and
procedural rulings. Id., at 51.
The instant case presents this question: Where does
an employee seek judicial review when the MSPB dis-
misses her civil-service case alleging discrimination neither
on the merits nor on a procedural ground, but for lack of
jurisdiction?
B
Anthony Perry worked at the U. S. Census Bureau until
2012. 829 F.3d 760, 762 (CADC 2016). In 2011, Perry
received notice that he would be terminated because of
spotty attendance. Ibid. Later that year, Perry and the
Bureau reached a settlement in which Perry agreed to a
30-day suspension and early retirement. Ibid. The
agreement required Perry to dismiss discrimination claims
he had separately filed with the EEOC. Ibid.
After retiring, Perry appealed his suspension and re-
tirement to the MSPB. Ibid. He alleged discrimination on
grounds of race, age, and disability, as well as retaliation
by the Bureau for his prior discrimination complaints.
Ibid. The settlement, he maintained, did not stand in the
way, because the Bureau coerced him into signing it. Ibid.
An MSPB administrative law judge (ALJ) eventually
determined that Perry had failed to prove that the settle-
ment was coerced. Perry v. Department of Commerce, No.
DC–0752–12–0486–B–1 etc. (Dec. 23, 2013) (initial deci-
Cite as: 582 U. S. ____ (2017) 7
Opinion of the Court
sion), App. to Pet. for Cert. 32a, 47a. Presuming Perry’s
retirement to be voluntary, the ALJ dismissed his case.
Id., at 33a, 47a. Voluntary actions are not appealable to
the MSPB, the ALJ observed, hence, the ALJ concluded,
the Board lacked jurisdiction to entertain Perry’s claims.
Id., at 51a.
The MSPB affirmed the ALJ’s decision. See Perry v.
Department of Commerce, 2014 WL 5358308, *1 (Aug. 6,
2014) (final order). The settlement agreement, the Board
recounted, provided that Perry would waive his Board
appeal rights with respect to his suspension and retire-
ment. Ibid. Because Perry did not prove that the agree-
ment was involuntary, the Board determined (in accord
with the ALJ) that his separation should be deemed vol-
untary, hence not an adverse action subject to the Board’s
jurisdiction under §7702(a)(1). Id., at *3–*4. If dissatis-
fied with the MSPB’s ruling, the Board stated in its deci-
sion, Perry could seek judicial review in the Federal Cir-
cuit. Id., at *4.
Perry instead filed a pro se petition for review in the
D. C. Circuit. 829 F.3d, at 763. The court ordered juris-
dictional briefing and appointed counsel to argue for
Perry. Ibid. By the time the court heard argument, the
parties had agreed that the D. C. Circuit lacked jurisdic-
tion, but disagreed on whether the proper forum for judi-
cial review was the Federal Circuit, as the Government
contended, or federal district court, as Perry maintained.
Ibid.
The D. C. Circuit held that the Federal Circuit had
jurisdiction over Perry’s petition and transferred his case
to that court under 28 U.S. C. §1631. 829 F.3d, at 763.
The court’s disposition was precedent-bound: In a prior
decision, Powell v. Department of Defense, 158 F.3d 597,
598 (1998), the D. C. Circuit had held that the Federal
Circuit is the proper forum for judicial review of MSPB
decisions dismissing mixed cases “on procedural or
8 PERRY v. MERIT SYSTEMS PROTECTION BD.
Opinion of the Court
threshold grounds.” See 829 F.3d, at 764, 767–768.
Notably, Powell ranked as a “procedural or threshold
matter” “the Board’s view of its jurisdiction.” 158 F.3d, at
599 (internal quotation marks omitted).
The D. C. Circuit rejected Perry’s argument that Powell
was undermined by this Court’s intervening decision in
Kloeckner, which held MSPB procedural dispositions of
mixed cases reviewable in district court. 829 F.3d, at
764–768. Kloeckner, the D. C. Circuit observed, repeatedly
tied its decision to dismissals on “procedural grounds,” 568
U.S., at 44, 46, 49, 52, 54, 55. See 829 F.3d, at 765.
Jurisdictional dismissals differ from procedural dismis-
sals, the D. C. Circuit concluded, given the CSRA’s refer-
ence to mixed cases as those “which the employee . . . may
appeal to the [MSPB].” Id., at 766–767 (quoting
§7702(a)(1)(A); emphasis added). A jurisdictional dismis-
sal, the court said, rests on the Board’s determination that
the employee may not appeal his case to the MSPB. Id., at
766–767. In contrast, a dismissal on procedural grounds,
e.g., untimely resort to the MSPB, leaves the employee
still “affected by an action which [she] may appeal to
the MSPB.” Ibid. (quoting §7702(a)(1)(A); alteration in
original).
We granted certiorari to review the D. C. Circuit’s deci-
sion, 580 U. S. ___ (2017), which accords with the Federal
Circuit’s decision in Conforto v. Merit Systems Protection
Bd., 713 F.3d 1111 (2013).
II
Federal employees, the Government acknowledges, have
a right to pursue claims of discrimination in violation of
federal law in federal district court. Nor is there any
doubt that the Federal Circuit lacks authority to adjudi-
cate such claims. See §7703(c) (preserving “right to have
the facts subject to trial de novo by the reviewing court” in
any “case of discrimination” brought under §7703(b)(2)).
Cite as: 582 U. S. ____ (2017) 9
Opinion of the Court
The sole question here disputed: What procedural route
may an employee in Perry’s situation take to gain judicial
review of the MSPB’s jurisdictional disposition of a com-
plaint that alleges adverse action taken under the CSRA
in whole or in part due to discrimination proscribed by
federal law?
The Government argues, and the dissent agrees, that
employees, situated as Perry is, must split their claims,
appealing MSPB nonappealability rulings to the Federal
Circuit while repairing to the district court for adjudica-
tion of their discrimination claims. As Perry sees it, one
stop is all he need make. Exclusively competent to adjudi-
cate “[c]ases of discrimination,” §7703(b)(2), the district
court alone can resolve his entire complaint, Perry urges;
the CSRA, he maintains, forces no bifurcation of his case.
Section 7702(a)(1), the Government contends, marks a
case as mixed only if the employee “has been affected by
an action which the employee . . . may appeal to the
[MSPB].” Brief for Respondent 15, 17–19, 21. An MSPB
finding of nonappealability removes a case from that
category, the Government asserts, and hence, from the
purview of “[c]ases of discrimination” described in
§7703(b)(2). Id., at 21. Only this reading of the CSRA’s
provisions on judicial review—one ordering Federal Cir-
cuit review of any and all MSPB appealability determina-
tions—the Government maintains, can ensure nationwide
uniformity in answering questions arising under the
CSRA. Id., at 26–32.
Perry emphasizes in response that §7702(a)(1)(A)’s
language, delineating cases in which an employee “has
been affected by an action which the employee . . . may
appeal to the [MSPB],” is not confined to cases an em-
ployee may successfully appeal to the Board. Brief for Peti-
tioner 19. The MSPB’s adverse ruling on the merits of his
claim that the settlement was coerced, Perry argues, “did
not retroactively divest the MSPB of jurisdiction to render
10 PERRY v. MERIT SYSTEMS PROTECTION BD.
Opinion of the Court
that decision.” Id., at 21. The key consideration, accord-
ing to Perry, is not what the MSPB determined about
appealability; it is instead the nature of an employee’s
claim that he had been “affected by an action [appealable]
to the [MSPB]” (here, suspension for more than 14 days
and involuntary removal, see §7512(1), (2)). See id., at 11,
23–24. Perry draws support for this argument from our
recognition that “a party [may] establish jurisdiction at
the outset of a case by means of a nonfrivolous assertion of
jurisdictional elements,” Jerome B. Grubart, Inc. v. Great
Lakes Dredge & Dock Co., 513 U.S. 527, 537 (1995). See
Brief for Petitioner 21–22.
Perry, we hold, advances the more sensible reading of
the statutory prescriptions. The Government’s procedure-
jurisdiction distinction, we conclude, is no more tenable
than “the merits-procedure distinction” we rejected in
Kloeckner, 568 U.S., at 51.
A
As just noted, a nonfrivolous allegation of jurisdiction
generally suffices to establish jurisdiction upon initiation
of a case. See Jerome B. Grubart, Inc., 513 U.S., at 537.
See also Bell v. Hood, 327 U.S. 678, 682–683 (1946) (To
invoke federal-question jurisdiction, allegations in a com-
plaint must simply be more than “insubstantial or frivo-
lous,” and “[i]f the court does later exercise its jurisdiction
to determine that the allegations in the complaint do not
state a ground for relief, then dismissal of the case would
be on the merits, not for want of jurisdiction.”). So too
here: whether an employee “has been affected by an
action which [she] may appeal to the [MSPB],” §7702(a)
(1)(A), turns on her well-pleaded allegations. Kloeckner,
EEOC regulations, and Courts of Appeals’ decisions are
corroborative.
We announced a clear rule in Kloeckner: “[M]ixed cases
shall be filed in district court.” 568 U.S., at 50. An em-
Cite as: 582 U. S. ____ (2017) 11
Opinion of the Court
ployee brings a mixed case, we explained, when she “com-
plains of a personnel action serious enough to appeal to
the MSPB,” e.g., suspension for more than 14 days,
§7512(2), “and alleges that the action was based on dis-
crimination.” Id., at 44 (emphasis deleted). The key to
district court review, we said, was the employee’s “clai[m]
that an agency action appealable to the MSPB violates an
antidiscrimination statute listed in §7702(a)(1).” Id., at 56
(emphasis added).
EEOC regulations, see supra, at 3, are in accord: The
defining feature of a “mixed case appeal,” those regula-
tions instruct, is the employee’s “alleg[ation] that an ap-
pealable agency action was effected, in whole or in part,
because of discrimination.” 29 CFR §1614.302(a)(2) (2016)
(emphasis added). Several Courts of Appeals have simi-
larly described mixed-case appeals as those alleging an
adverse action subject to MSPB jurisdiction taken, in
whole or in part, because of unlawful discrimination. See,
e.g., Downey v. Runyon, 160 F.3d 139, 143 (CA2 1998)
(“Mixed appeals to the MSPB are those appeals alleging
an appealable action affected in whole or in part by pro-
hibited discrimination.” (emphasis added)); Powell, 158
F.3d, at 597 (defining mixed-case appeal as “an appeal
alleging both a Board-jurisdictional agency action and a
claim of unlawful discrimination” (emphasis added)).
See also Conforto, 713 F.3d, at 1126–1127, n. 5 (Dyk, J.,
dissenting).4
Because Perry “complain[ed] of a personnel action seri-
ous enough to appeal to the MSPB” (in his case, a 30-day
suspension and involuntary removal, see supra, at 6;
——————
4 Our interpretation is also consistent with another CSRA provision,
§7513(d), which provides that “[a]n employee against whom an action is
taken under this section is entitled to appeal to the . . . Board.” Be-
cause the “entitle[ment] to appeal” conferred in §7513(d) must be
determined before an appeal is filed, such a right cannot depend on the
outcome of the appeal.
12 PERRY v. MERIT SYSTEMS PROTECTION BD.
Opinion of the Court
§7512(1), (2)) and “allege[d] that the [personnel] action
was based on discrimination,” he brought a mixed case.
Kloeckner, 568 U.S., at 44.5 Judicial review of such a case
lies in district court. Id., at 50, 56.
B
The Government rests heavily on a distinction between
MSPB merits and procedural decisions, on the one hand,
and the Board’s jurisdictional rulings, on the other.6 The
distinction has multiple infirmities.
“If Congress had wanted to [bifurcate judicial review,]
send[ing] merits decisions to district court and procedural
dismissals to the Federal Circuit,” we observed in Kloeck-
ner, “it could just have said so.” Id., at 52. The same
observation could be made about bifurcating judicial re-
view here, sending the MSPB’s merits and procedural
decisions to district court, but its jurisdictional dismissals
to the Federal Circuit.7
——————
5 If,as the dissent and the Government argue, see post, at 8–10; Brief
for Respondent 19–26, 33–35, Perry’s case is not “mixed,” one can only
wonder what kind of case it is, surely not one asserting rights under the
CSRA only, or one invoking only antidiscrimination law. See supra, at
1–2. This is, of course, a paradigm mixed case: Perry alleges serious
personnel actions (suspension and forced retirement) caused in whole
or in part by prohibited discrimination. So did the employee in Kloeck-
ner. She alleged that her firing (a serious personnel action) was based
on discrimination. See 568 U.S., at 47. Thus Perry, like Kloeckner,
well understood what the term “mixed case” means.
6 Notably, the dissent ventures no support for the principal argument
made by the Government, i.e., that MSPB jurisdictional dispositions
belong in the Federal Circuit, procedural and merits dispositions, in
district court.
7 As Judge Dyk, dissenting in Conforto v. Merit Systems Protection
Bd., 713 F.3d 1111 (CA Fed. 2013), pointed out: “[W]here Congress
intended to distinguish between different types of Board decisions, it
did so expressly.” Id., at 1124, n. 1 (citing §3330b(b) (“An election
under this section may not be made . . . after the [MSPB] has issued a
judicially reviewable decision on the merits of the appeal.” (emphasis
added)); §7703(a)(2) (“The Board shall be named respondent in any
Cite as: 582 U. S. ____ (2017) 13
Opinion of the Court
The Government’s attempt to separate jurisdictional
dismissals from procedural dismissals is newly devised.
In Kloeckner, the Government agreed with the employee
that there was “no basis” for a procedure-jurisdiction
distinction. Brief for Respondent, O. T. 2012, No. 11–184,
p. 25, n. 3; see Reply to Brief in Opposition, O. T. 2012, No.
11–184, pp. 1–2 (stating employee’s agreement with the
Government that procedural and jurisdictional dismissals
should travel together). Issues of both kinds, the Govern-
ment there urged, should go to the Federal Circuit. Draw-
ing such a distinction, the Government observed, would be
“difficult and unpredictable.” Brief in Opposition in
Kloeckner, O. T. 2012, No. 11–184, p. 15 (internal quota-
tion marks omitted). Now, in light of our holding in
Kloeckner that procedural dismissals should go to district
court, the Government has changed course, contending
that MSPB procedural and jurisdictional dismissals
should travel different paths.8
A procedure-jurisdiction distinction for purposes of
determining the court in which judicial review lies, as both
——————
proceeding brought pursuant to this subsection, unless the employee
. . . seeks review of a final order or decision on the merits . . . .” (empha-
sis added))).
8 This is not the first time the Government has changed its position.
Before the Federal Circuit in Ballentine v. Merit Systems Protection
Bd., 738 F.2d 1244 (1984), the Government moved to transfer to
district court an appeal challenging a jurisdictional dismissal by the
MSPB. See id., at 1245. The Government argued that “even a question
of the Board’s jurisdiction to hear an attempted mixed case appeal must
be addressed by a district court.” Id., at 1247 (internal quotation marks
omitted). Rejecting the Government’s position, the Federal Circuit
concluded that it could review MSPB decisions on “procedural or
threshold matters, not related to the merits of a discrimination claim.”
Ibid. In Kloeckner, we disapproved the Federal Circuit’s holding with
respect to MSPB procedural dismissals. 568 U.S., at 50, 56. Today we
disapprove Ballentine’s holding with respect to jurisdictional dismis-
sals, thereby adopting precisely the position advanced by the Govern-
ment in that case.
14 PERRY v. MERIT SYSTEMS PROTECTION BD.
Opinion of the Court
parties recognized in Kloeckner, would be perplexing and
elusive. If a 30-day suspension followed by termination
becomes nonappealable to the MSPB when the Board
credits a release signed by the employee, one may ask why
a determination that the employee complained of such
adverse actions (suspension and termination) too late, i.e.,
after a Board-set deadline, does not similarly render the
complaint nonappealable. In both situations, the Board
disassociates itself from the case upon making a threshold
determination. This Court, like others, we note, has some-
times wrestled over the proper characterization of timeli-
ness questions. Compare Bowles v. Russell, 551 U.S. 205,
209–211, 215 (2007) (timely filing of notice of appeal in
civil cases is “jurisdictional”), with id., at 217–219 (Souter,
J., dissenting) (timeliness of notice of appeal is a proce-
dural issue).
Just as the proper characterization of a question as
jurisdictional rather than procedural can be slippery, the
distinction between jurisdictional and merits issues is not
inevitably sharp, for the two inquiries may overlap. See
Shoaf v. Department of Agriculture, 260 F.3d 1336, 1341
(CA Fed. 2001) (“recogniz[ing] that the MSPB’s jurisdic-
tion and the merits of an alleged involuntary separation
are inextricably intertwined” (internal quotation marks
omitted)). This case fits that bill. The MSPB determined
that it lacked jurisdiction over Perry’s civil-service claims
on the ground that he voluntarily released those claims
by entering into a valid settlement with his employing
agency, the Census Bureau. See App. to Pet. for Cert. 27a.9
——————
9 In civil litigation, a release is an affirmative defense to a plaintiff’s
claim for relief, not something the plaintiff must anticipate and negate
in her pleading. See Fed. Rule Civ. Proc. 8(c)(1) (listing among affirma-
tive defenses “release” and “waiver”); Newton v. Rumery, 480 U.S. 386,
391 (1987). In that light, the MSPB’s jurisdiction should be determined
by the adverse actions Perry asserts, suspension and forced retirement;
the settlement releasing Perry’s claims would figure as a defense to his
Cite as: 582 U. S. ____ (2017) 15
Opinion of the Court
But the validity of the settlement is at the heart of the
dispute on the merits of Perry’s complaint. In essence, the
MSPB ruled that it lacked jurisdiction because Perry’s
claims fail on the merits. See Shoaf, 260 F.3d, at 1341 (If
it is established that an employee’s “resignation or retire-
ment was involuntary and thus tantamount to forced
removal,” then “not only [does the Board] ha[ve] jurisdic-
tion, but also the employee wins on the merits and is
entitled to reinstatement.” (internal quotation marks
omitted)). See also Conforto, 713 F.3d, at 1126 (Dyk, J.,
dissenting) (“[I]t cannot be that [the Federal Circuit]
lack[s] jurisdiction to review the ‘merits’ of mixed cases
but nevertheless may review ‘jurisdictional’ issues that are
identical to the merits . . . .”).10
Distinguishing between MSPB jurisdictional rulings
and the Board’s procedural or substantive rulings for
purposes of allocating judicial review authority between
district court and the Federal Circuit is problematic for a
further reason: In practice, the distinction may be un-
workable. The MSPB sometimes rules on alternate
grounds, one typed “jurisdictional,” another either proce-
dural or substantive. See, e.g., Davenport v. Postal Ser-
vice, 97 MSPR 417 (2004) (dismissing “for lack of jurisdic-
tion and as untimely filed” (emphasis added)). To which
court does appeal lie? Or, suppose that the Board ad-
dresses a complaint that encompasses multiple claims,
dismissing some for want of jurisdiction, others on proce-
dural or substantive grounds. See, e.g., Donahue v. Postal
Service, 2006 WL 859448, *1, *3 (ED Pa., Mar. 31, 2006).
Tellingly, the Government is silent on the proper channel-
——————
complaint, it would not enter into the determination whether the Board
has jurisdiction over his claims.
10 If a reviewing court “agree[d] with the Board’s assessment,” then
Perry would indeed have “lost his chance to pursue his . . . discrimina-
tion claim[s],” post, at 3, for those claims would have been defeated had
he voluntarily submitted to the agency’s action.
16 PERRY v. MERIT SYSTEMS PROTECTION BD.
Opinion of the Court
ing of appeals in such cases.
Desirable as national uniformity may be,11 it should not
override the expense, delay, and inconvenience of requir-
ing employees to sever inextricably related claims, resort-
ing to two discrete appellate forums, in order to safeguard
their rights. Perry’s comprehension of the complex statu-
tory text, we are persuaded, best serves “[t]he CSRA’s
objective of creating an integrated scheme of review[,
which] would be seriously undermined” by “parallel litiga-
tion regarding the same agency action.” Elgin, 567 U.S.,
at 14. See also United States v. Fausto, 484 U.S. 439,
444–445 (1988).12 Perry asks us not to “tweak” the stat-
——————
11 In Kloeckner, we rejected the Government’s national uniformity
argument. See 568 U.S., at 55–56, n. 4. “When Congress passed the
CSRA, the Federal Circuit did not exist,” we observed, so uniformity did
not then figure in Congress’ calculus. Id., at 56, n. 4. Moreover, even
under the Government’s reading, “many cases involving federal em-
ployment issues [would be resolved] in district court. If the MSPB
rejects on the merits a complaint alleging that an agency violated the
CSRA as well as an antidiscrimination law, the suit will come to
district court for a decision on both questions.” Ibid.
12 In both Elgin v. Department of Treasury, 567 U.S. 1 (2012), and
United States v. Fausto, 484 U.S. 439 (1988), we rejected employees’
attempts to divide particular issues or claims among review forums. In
Elgin, a federal employee opted not to seek review of an MSPB ALJ’s
decision, either before the full Board or in the Federal Circuit; he
instead brought in District Court, in the first instance, a constitutional
challenge to an agency personnel action. 567 U.S., at 7–8. We con-
cluded that an employee with civil-service claims must follow the
CSRA’s procedures and may not bring a standalone constitutional
challenge in district court. Id., at 8. In Fausto, a federal employee with
CSRA claims filed an action in the United States Claims Court under
the Back Pay Act of 1966. 484 U.S., at 443. We determined that the
employee could not bring his action under the Back Pay Act because the
CSRA provided “the comprehensive and integrated review scheme.”
See id., at 454. Contrary to the dissent’s suggestion, see post, at 10,
neither case indicated that the Federal Circuit, as opposed to district
court, is the preferred forum for judicial review of all CSRA claims.
Rather, both decisions emphasized the benefits of an integrated review
scheme and the problems associated with bifurcating consideration of a
Cite as: 582 U. S. ____ (2017) 17
Opinion of the Court
ute, see post, at 1, but to read it sensibly, i.e., to refrain
from reading into it the appeal-splitting bifurcation sought
by the Government. Accordingly, we hold: (1) the Federal
Circuit is the proper review forum when the MSPB dis-
poses 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.
* * *
For the reasons stated, the judgment of the United
States Court of Appeals for the District of Columbia Cir-
cuit is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
——————
single matter in different forums. See 567 U.S., at 13–14; 484 U. S., at
444–445. It is the dissent’s insistence on bifurcated review, therefore,
that “Elgin and Fausto warned against,” post, at 10.
Cite as: 582 U. S. ____ (2017) 1
GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–399
_________________
ANTHONY W. PERRY, PETITIONER v. MERIT
SYSTEMS PROTECTION BOARD
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 23, 2017]
JUSTICE GORSUCH, with whom JUSTICE THOMAS joins,
dissenting.
Anthony Perry asks us to tweak a congressional stat-
ute—just a little—so that it might (he says) work a bit
more efficiently. No doubt his invitation is well meaning.
But it’s one we should decline all the same. 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 fur-
ther 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.
Our case concerns the right of federal employees to
pursue their employment grievances under the Civil Ser-
vice Reform Act. Really, it concerns but a small aspect of
that right. Everyone agrees that employees may contest
certain adverse employment actions—generally serious
ones like dismissals—before the Merit Systems Protection
Board. See 5 U.S. C. §§7701–7702, 7512–7513. Everyone
agrees, too, that employees are generally entitled to seek
2 PERRY v. MERIT SYSTEMS PROTECTION BD.
GORSUCH, J., dissenting
judicial review of the Board’s decisions. See §7703. The
only question we face today is where. And on that ques-
tion, the Act provides clear directions.
First, the rule. The Act says that an employee’s appeal
usually “shall be filed in . . . the Federal Circuit,”
§7703(b)(1)(A), which then applies a deferential, APA-style
standard of review familiar to administrative law,
§7703(c). No doubt this makes sense, too, for Congress
established the Federal Circuit in no small part to ensure
a uniform case law governs Executive Branch personnel
actions and guarantees the equal treatment of civil serv-
ants without regard to geography. See United States v.
Fausto, 484 U.S. 439, 449 (1988).
Second, the exception. Congress recognized that some-
times agencies taking adverse employment actions against
employees violate not just federal civil service laws, but
also federal antidiscrimination laws. Usually, of course,
employees who wish to pursue discrimination claims in
federal district court must first exhaust those claims in
proceedings before their employing agency. See, e.g., 42
U.S. C. §2000e–16(c). But the Act provides another op-
tion. Employees affected by adverse employment actions
that trigger the Act’s jurisdiction may (but need not) elect
to exhaust their discrimination claims before the Board.
See 5 U.S. C. §7702(a). They also may ask the Board to
review discrimination claims already exhausted before
their employing agencies, and in this way obtain an addi-
tional layer of administrative review. See ibid. In §7702
of the Act, Congress proceeded to set forth the rules the
Board must apply in reviewing these cases of discrimina-
tion. And it then said that “[c]ases of discrimination
subject to the provisions of section 7702” are exempt from
the default rule of Federal Circuit review and instead
“shall be filed” in district court “under” specified antidis-
crimination statutes like Title VII or the ADEA.
§7703(b)(2). At that point, district courts are instructed to
Cite as: 582 U. S. ____ (2017) 3
GORSUCH, J., dissenting
engage in de novo factfinding, §7703(c), not APA-style
judicial review, just as they would in any other discrimi-
nation lawsuit.
Putting these directions together, the statutory scheme
is plain. Disputes arising under the civil service laws
head to the Federal Circuit for deferential review; discrim-
ination cases go to district court for de novo review. Con-
gress allowed employees an elective option to bring their
discrimination claims to the Board, but didn’t allow this
option to destroy the framework it established for the
resolution of civil service questions. These rules provide
straightforward direction to courts and guidance to federal
employees who often proceed pro se.
These rules also tell us all we need to know to resolve
our case. Construing his pro se filings liberally, Mr. Perry
pursued civil service and discrimination claims before the
Board without first exhausting his discrimination claim
before his own agency. The Board held that it couldn’t
hear Mr. Perry’s claims because he hadn’t suffered an
adverse employment action sufficient to trigger its juris-
diction under the Act. Mr. Perry now seeks to contest the
Board’s assessment of its jurisdiction and win a review
there that so far he’s been denied. See, e.g., Brief for
Petitioner 24. No doubt, too, he wants the chance to pro-
ceed on the merits before the Board for good reason: A
victory there is largely unappealable by the government.
See 5 U.S. C. §§7701, 7703(d); see also Brief for Respond-
ent 34. And because the scope of the Board’s jurisdiction
is a question of civil service law, Mr. Perry must go to the
Federal Circuit for his answer. If that court agrees with
Mr. Perry about the scope of the Board’s authority, he can
return to the Board and argue the merits of his two
claims. If instead the court agrees with the Board’s as-
sessment of its powers, then Mr. Perry still hasn’t lost his
chance to pursue his remaining discrimination claim, for
he may seek to exhaust that claim in the normal agency
4 PERRY v. MERIT SYSTEMS PROTECTION BD.
GORSUCH, J., dissenting
channels and proceed to district court.
Mr. Perry, though, invites us to adopt a very different
regime, one that would have the district court review the
Board’s ruling on the scope of its jurisdiction. Having to
contest Board rulings on civil service and discrimination
issues in different courts, he says, is a hassle. So, he
submits, we should fix the problem by allowing civil ser-
vice law questions to proceed to district court whenever an
employee pursues a case of discrimination before the
Board. In support of his proposal, he points us to a line of
lower court cases associated with Williams v. Department
of Army. And there, indeed, the Federal Circuit adopted a
fix much like what Mr. Perry now proposes: allowing civil
service claims to tag along to district court with discrimi-
nation claims because, in its judgment, “[f ]rom the stand-
point of judicial economy, consideration of all issues by a
single tribunal is clearly preferable.” 715 F.2d 1485, 1490
(1983) (en banc).
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. To be sure, the de-
mands of bicameralism and presentment are real and the
process can be protracted. But the difficulty of making
new laws isn’t some bug in the constitutional design: it’s
the point of the design, the better to preserve liberty.
Besides, the law of unintended consequences being what it
is, judicial tinkering with legislation is sure only to invite
trouble. Just consider the line of lower court authority
Mr. Perry asks us to begin replicating now in the U. S.
Reports. Having said that district courts should some-
times adjudicate civil service disputes, these courts have
quickly and necessarily faced questions about how and
when they should do so. And without any guidance from
Congress on these subjects, the lower courts’ solutions
have only wound up departing further and further from
statutory text—and invited yet more and more questions
Cite as: 582 U. S. ____ (2017) 5
GORSUCH, J., dissenting
still. A sort of rolling, case-by-case process of legislative
amendment.
Take this one. Recall that the statute says that de novo
standard of review applies to cases filed in district court.
See 5 U.S. C. §7703(c). But everyone agrees that stand-
ard is poorly adapted to the review of administrative civil
service decisions. So what’s to be done with civil service
disputes that tag along to district court? Rather than see
the problem as a clue things have gone awry, lower courts
following Williams have suggested that maybe civil service
claims should be assessed under deferential standards of
review the Act prescribes only for (yes) Federal Circuit
cases. And today Mr. Perry encourages us to follow suit
too. See Brief for Petitioner 17, n.; Sher v. Department of
Veterans Affairs, 488 F.3d 489, 499 (CA1 2007), cert.
denied, 552 U.S. 1309 (2008).
But that’s just the beginning. The statute allows only
cases “filed under” certain specified federal antidiscrimi-
nation statutes to proceed to district court. Those laws (of
course) prescribe remedies to vindicate harms associated
with discrimination, including equitable relief and damages.
See, e.g., 29 U.S. C. §633a(c). But what remedies can
or should a district court afford a plaintiff in a run-of-the-
mill civil service dispute that lands there? Might a plain-
tiff be forced to litigate in the district court only to be told
at the end that no remedial authority exists? May a dis-
trict court fashion some remedy in the absence of a statu-
tory mandate to do so? Should it only adopt APA-style
remedies prescribed by the Act for (again) the Federal
Circuit? Who knows.
Answer all those questions and still more arise. What
happens if the Board fully remedies an employee’s dis-
crimination claim, but rejects his simultaneously litigated
civil service dispute? Should the employee go to district
court with a stand-alone civil service complaint, to be
nominally “filed” and adjudicated “under” a federal anti-
6 PERRY v. MERIT SYSTEMS PROTECTION BD.
GORSUCH, J., dissenting
discrimination statute? Or has by this point the case
somehow transformed into one that should be sent to the
Federal Circuit? Williams itself anticipated these particu-
lar problems but (notably) declined to take any stab at
answering them. See 715 F.2d, at 1491.
Still more and even curiouser questions follow. In some
cases a district court will find the employee’s discrimina-
tion claim meritless. When that happens, what should the
district court do with a tag along civil service claim? Some
lower courts after Williams have suggested that cases like
these should be transferred back to the Federal Circuit in
the “interests of judicial economy.” Nater v. Riley, 114
F. Supp. 2d 17, 29 (PR 2000). But isn’t it more than a
little strange that an employee (often proceeding pro se, no
less) should be sent to district court only to be bounced
back to the Federal Circuit—with each trip undertaken in
the name of “judicial economy”?
And speaking of judicial economy, you might wonder
what happened to the (no doubt efficient) policy Congress
itself articulated when it declared that civil service issues
should be decided by the Federal Circuit so they might be
subject to a uniform body of appellate case law. See
Fausto, 484 U.S., at 449; see also Elgin v. Department of
Treasury, 567 U.S. 1, 13–14 (2012). In an effort to
achieve a simulacrum of that statutory command, one
Federal Circuit judge has suggested that the regional
circuits hearing tag along civil service issues should defer
to Federal Circuit interpretations of civil service laws,
much as federal courts defer to state courts on matters of
state law when sitting in diversity. See Williams, supra,
at 1492–1493 (Nichols, J., concurring). Call it a sort of
Erie doctrine for the Federal Circuit—if, of course, one
lacking any basis in federalism, not to mention the statu-
tory text.
By this point, you might wonder too if accepting Mr.
Perry’s invitation will even wind up saving him (or those
Cite as: 582 U. S. ____ (2017) 7
GORSUCH, J., dissenting
like him) any hassle at all. Not only because of all the
complications that arise from accepting his invitation. But
also because, regardless which court hears his case, Mr.
Perry should wind up in the same place anyway. If the
reviewing court (whichever court that may be) finds that
the Board was wrong and it actually possessed jurisdiction
over his civil service and discrimination claims, presum-
ably the court will seek to send Mr. Perry back to the Board
to adjudicate those claims. See Reply Brief 18 (agreeing
with this point). Meanwhile, if the reviewing court con-
cludes that the Board was right and it lacked jurisdiction
over Mr. Perry’s claims, presumably the court will require
him to exhaust his remaining discrimination claim in
normal agency channels before litigating it in court. So
even if we take up Mr. Perry’s ambitious invitation to
overhaul the statute, is it even clear that we would save
him and those like him any hassle at all? Or might future
courts respond to this development with a yet further
statutory rewrite, suggesting next that claimants should
be allowed to proceed in district court on the merits of both
their civil service and discrimination claims? Even where
(as here) the discrimination claim remains unexhausted
before any agency and the civil service claim isn’t one even
the Board could hear?
Mr. Perry’s proposal for us may be seriously atextual
and practically unattractive, but perhaps it has one thing
going for it, he says. While we of course owe no fealty to
Williams or other lower court opinions, and are free to
learn from, rather than repeat, their misadventures, Mr.
Perry suggests our decision in Kloeckner v. Solis, 568 U.S.
41 (2012), requires us to rule for him. Whatever we think
about the statute’s plain terms, he says, we are bound by
precedent to send him to district court all the same.
But I just don’t see in Kloeckner what Mr. Perry would
have us find there. This Court was not asked to decide—
and did not decide—whether issues arising under the civil
8 PERRY v. MERIT SYSTEMS PROTECTION BD.
GORSUCH, J., dissenting
service laws go to district court. Rather, we were asked
to answer the much more prosaic question where an em-
ployee seeking to pursue only a discrimination claim should
proceed. See Pet. for Cert. in Kloeckner v. Solis, O. T.
2012, No. 11–184, p. i (“If the [Board] decides a mixed case
without determining the merits of the discrimination
claim, is the court with jurisdiction over that claim the
Court of Appeals for the Federal Circuit or a district
court?” (emphasis added)). And this Court simply (and
quite rightly) responded to that question by holding that
“[a] federal employee who claims that an agency action
appealable to the [Board] violates an antidiscrimination
statute . . . should seek judicial review in district court, not
in the Federal Circuit . . . whether the [Board] decided her
case on procedural grounds or instead on the merits.”
Kloeckner, 568 U.S., at 56 (emphasis added). Nothing
about the question presented or holding suggests that a
claimant wishing to challenge a Board ruling under the
civil service laws may also proceed in district court.
Mr. Perry replies that Kloeckner endorsed the idea that
something called “mixed cases” should go to district court.
But that term does not mean what he thinks it means.
The phrase “mixed case” appears nowhere in the statute.
Instead, it is but “lingo [from] the applicable regulations.”
Id., at 50. And even those regulations don’t say that civil
service questions may go to district court. Instead, the
regulations use the term “mixed cases” to describe admin-
istrative challenges where the employee both “complains
of a personnel action serious enough to appeal to [the
Board] and alleges that the action was based on discrimi-
nation.” Id., at 44 (second emphasis added); see also 29
CFR §1614.302(a)(2) (2016). The regulations thus simply
acknowledge that some administrative matters are both
sufficient to trigger the Board’s authority and raise ques-
tions addressed by federal antidiscrimination statutes.
They say nothing about what goes to district court.
Cite as: 582 U. S. ____ (2017) 9
GORSUCH, J., dissenting
Neither did Kloeckner redefine the term “mixed case” in
some novel way. After discussing the regulatory definition
of “mixed cases,” the decision proceeds to say just this:
“Under §7703(b)(2), ‘cases of discrimination subject to
[§7702]’ shall be filed in district court. Under
§7702(a)(1), the ‘cases of discrimination subject to
[§7702]’ are mixed cases—those appealable to the
[Board] and alleging discrimination. Ergo, mixed
cases shall be filed in district court.” 568 U.S., at 50
(some brackets in original; emphasis added).
In context, it seems clear that this passage only seeks to
restate the statute, using the term “mixed cases” as short-
hand for cases that go to district court under §7703(b)(2).
And from that statute we know that only “cases of discrim-
ination . . . filed under” certain specified federal antidis-
crimination statutes go to district court—no more, no less.
Nothing in this passage suggests the Court meant to
rewrite a regulatory term as a tool to undo a statute.
Now, admittedly, a footnote in Kloeckner did seem to go
a step farther and assume Williams’ view that civil service
claims may tag along with discrimination claims to district
court. Kloeckner, 568 U.S., at 55–56, n. 4. But even by its
terms such an assumption wouldn’t help Mr. Perry, for he
isn’t seeking to pursue a discrimination claim in district
court. By his own telling, he is seeking to overturn the
Board’s holding that it lacked jurisdiction to hear his
administrative appeal so he might seek relief there in the
first instance. And that, of course, raises only a question
of civil service law. What’s more, the footnote’s discussion
about Williams is no more than dicta. The footnote ad-
dressed only a policy argument from the government and
said that argument failed both under Williams and for
other reasons “[i]n any event.” 568 U.S., at 56, n. 4. As
near as I can tell, then, Mr. Perry would have us upend a
carefully crafted statutory scheme on the strength of a
10 PERRY v. MERIT SYSTEMS PROTECTION BD.
GORSUCH, J., dissenting
comment in one sentence of one footnote offered in reply to
a policy argument that failed for other reasons anyway.
Full respect for stare decisis does not demand so much
from us. To the contrary, this Court has long made clear
that where, as here, we have not “squarely addressed [an]
issue, and have at most assumed [one side of it to be cor-
rect], we are free to address the issue on the merits.”
Brecht v. Abrahamson, 507 U.S. 619, 631 (1993); see also
Legal Services Corporation v. Valazquez, 531 U.S. 533,
537 (2001) (Scalia, J., dissenting) (“Judicial decisions do
not stand as binding ‘precedent’ for points that were not
raised, not argued, and hence not analyzed”).
Notably, even the Court today doesn’t read Kloeckner as
holding that all civil service claims and issues must pro-
ceed to district court after a discrimination claim is pre-
sented to the Board. Instead, the Court says that result is
justified in large measure because it will “best serv[e]” the
statute’s “ ‘objective of creating an integrated scheme of
review[, which] would be seriously undermined’ by ‘paral-
lel litigation.’ ” Ante at 16 (quoting Elgin, 567 U.S., at 14).
Yet, the very case the Court quotes for its account about
the statute’s purpose (Elgin which, in turn, quotes Fausto)
speaks of Congress’ desire to provide an “ ‘integrated
scheme of administrative and judicial review’ ” for civil
service disputes that “would be seriously undermined” if
“employees [had] the right to challenge employing agency
actions in district court across the country,” and regional
district and circuit courts could pass on such matters.
Elgin, supra, at 13–14 (quoting Fausto, 484 U.S., at 445).
And, respectfully, the result Elgin and Fausto warned
against is exactly the result the Court’s opinion seems sure
to guarantee. Rather than pursue the congressional policy
discussed in those cases, the Court seems more nearly
headed in the opposite direction.
Beyond its claim about the statute’s purpose, the Court
offers little in the way of a traditional statutory interpre-
Cite as: 582 U. S. ____ (2017) 11
GORSUCH, J., dissenting
tation. It does not explain how the result it reaches
squares with the statute’s text and structure, or grapple
with the arguments presented here on those counts. The
Court does not explain, for example, how exactly a civil
service dispute might be said to be “filed under” a federal
antidiscrimination statute, what the standard of review
might apply in such a matter (nowhere discussed in the
statute), or what the remedial powers of the district court
could be in these circumstances. And it remains far from
obvious whether the Court’s eventual answers to questions
like these will wind up yielding a regime better for em-
ployees, or instead one just different or even a good deal
worse.
Indeed, the only answer the Court supplies to any of the
questions raised above lies in a footnote and seems telling.
There, the Court instructs that Mr. Perry will not be able
to pursue his discrimination claim if the district court
agrees with the Board that it lacked jurisdiction over his
claim. Ante, at 15, n. 10. But this will surely come as a
surprise to Mr. Perry, who tells us he wants to pursue a
federal discrimination claim even if it isn’t one the Board
has jurisdiction to hear. And it comes as a surprise to me
too, for as I’ve described and the government concedes,
nothing in the statute would prevent Mr. Perry from
trying to bring a discrimination claim in district court
after seeking to exhaust it before his employing agency.
See, e.g., Brief for Petitioner 11, 16–17, 28; Brief for Re-
spondent 25; Tr. of Oral Arg. 17.
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. In-
deed, 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
12 PERRY v. MERIT SYSTEMS PROTECTION BD.
GORSUCH, J., dissenting
their way to a wholly remodeled statutory regime. Re-
spectfully, Congress already wrote a perfectly good law. I
would follow it.