Case Report for August 5, 2016
Note: These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority. Instead, they are provided only to inform and help the public locate Board precedents.
Petitioner: Anthony W. Perry
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the District of Columbia Circuit
Docket Number: 14-1155
Issuance Date: July 22, 2016
Mixed Cases - Appeal Rights
The issue in this case was whether judicial review of a final Board decision that dismisses an appeal for lack of jurisdiction in a case where the appellant alleged unlawful discrimination should be with the Court of Appeals for the Federal Circuit or with a U.S. district court.
Holdings: The court held that judicial review in such a case lies with the Court of Appeals for the Federal Circuit:
1. Mixed Cases are ones in which an employee not only challenges an adverse action within the Board's jurisdiction, but also alleges discrimination in violation of certain federal statutes. If the Board in a mixed case rules against the employee on the merits of her discrimination claim, she must seek review in U.S. district court, not the Federal Circuit.
2. The D.C. Court of Appeals had previously ruled, in Powell v. Department of Defense, 158 F.3d 597 (D.C. Cir. 1998), that the mixed case exception to review by the Federal Circuit does not apply if the Board dismisses the employee's appeal for lack of jurisdiction without reaching the merits of her discrimination claim. At issue was whether the Powell holding still applies after the issuance of the Supreme Court's decision in Kloeckner v. Solis, 133 S. Ct. 596 (2012), which held that review is in U.S. district court when the Board dismisses a mixed-case appeal on a procedural ground without reaching the merits. The question is whether the Kloeckner decision effectively overrules or eviscerates the Powell decision.
3. The statute, 5 U.S.C. § 7702(a)(1)(A), describes a mixed case as one in which the employee both alleges discrimination and "has been affected by an action which [she] may appeal to the" MSPB. When an employee brings a case she believes qualifies as a mixed case to the MSPB but the Board dismisses her appeal based on a lack of jurisdiction, the Board necessarily concludes that she has not "been affected by an action which [she] may appeal to the" MSPB; she has instead been affected by an action which she may not appeal to the MSPB. The case, in other words, turns out not to be a mixed case after all--it is not one "appealable to the MSPB."
4. Kloeckner's repeated and consistent references to "procedural" dismissals were made in the context of awareness of an argument that jurisdictional dismissals are different.
The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the following cases:
Vanderford v. Department of Veterans Affairs, No. 2016-1018 (August 1, 2016) (MSPB Docket Nos. SF-300A-15-0006-I-1, SF-3330-14-0556-I-1) (affirming the Board's decision, which denied Vanderford's appeal of a nonselection for a position advertised by the Department of Veterans Affairs for “preference eligible veterans only,” and dismissed his related employment practices appeal)
Davis v. Department of the Navy, No. 2015-3217 (August 3, 2016) (MSPB Docket No. PH-0752-12-0073-B-1) (affirming per Rule 36 the Board's decision, which sustained Davis's removal)
Diaz v. Department of the Treasury, No. 2016-1819 (August 3, 2016) (MSPB Docket No. AT-0752-15-0471-I-1) (affirming the Board's decision, which sustained Diaz's removal)
Unara v. Merit Systems Protection Board, No. 2016-1417 (August 4, 2016) (MSPB Docket No. CH-3443-15-0404-I-1) (affirming the Board's decision, which dismissed Unara's appeal for lack of jurisdiction)
Eddin v. Merit Systems Protection Board, No. 2016-1662 (August 4, 2016) (MSPB Docket No. DA-3443-16-0025-I-1) (affirming the Board's decision, which dismissed Eddin's appeal for lack of jurisdiction)