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Opinion analysis: Majority sides with employee in civil service argument, but Gorsuch announces his presence with authority

The late Justice Byron White used to say that every new justice created a “new” Supreme Court. Perry v. Merit Systems Protection Board, decided on Friday, may be remembered as the opening salvo in the battle over statutory interpretation on the “new” Roberts court featuring Justice Neil Gorsuch (who, appropriately, clerked for White).

A seven-justice majority held that “mixed cases” should be reviewed in full in federal district court even when the MSPB dismissed the Civil Service Reform Act claims for lack of jurisdiction. That conclusion flowed from the court’s unanimous 2012 decision in Kloeckner v. Solis and reflected the “more sensible” reading of the statute that best served “the CSRA’s objection of creating an integrated scheme of review.” But Gorsuch authored a sharp dissent, calling out the majority for “offer[ing] little in the way of traditional statutory interpretation,” for failing to “grapple with the statute’s text and structure,” and for refusing to follow the “perfectly good law” that Congress had written.

Under the CSRA, federal employees who suffer serious adverse employment actions seek administrative review before the MSPB, with judicial review of the MSPB’s order in the U.S. Court of Appeals for the Federal Circuit, where review is circumscribed and deferential.

An employee also can bring a “mixed case,” alleging that he suffered an adverse employment action appealable to the MSPB and that the basis for the action was, in whole or in part, discrimination prohibited by federal employment-discrimination statutes – including Title VII, the Age Discrimination in Employment Act and the Americans With Disabilities Act. Under 5 U.S.C. § 7703(b)(2), mixed cases and pure discrimination cases can be pursued in accordance with the relevant employment-discrimination law – that is, through a civil administrative proceeding before the Equal Employment Opportunity Commission, followed by a civil action in an appropriate district court and appeal to a regional federal court of appeals.

Alternatively, under 5 U.S.C. § 7702(a)(1), an employee can bring a mixed case to the MSPB, which must decide both the appealable adverse employment action and the issue of discrimination. In Kloeckner, the court held unanimously that the statutory framework established “in crystalline fashion” that when an employee takes a mixed case to the MSPB, the board’s decision must be challenged in federal district court, whether the MSPB rejected the employee’s discrimination claim on the merits or on some procedural ground (such as untimeliness of the claim).

In this case, the MSPB had determined that Anthony Perry had voluntarily agreed to his sanctions (a 30-day suspension and early retirement) and that his agreement was not coerced; the board therefore lacked jurisdiction, because voluntary actions are not serious actions appealable to the board. The question before the court was where Perry should seek review when the MSPB dismissed his mixed case not on the merits and not on a procedural ground, but for lack of jurisdiction.

The government argued that jurisdictional dismissals must be reviewed in the Federal Circuit, because jurisdictional dismissals are different from procedural or merits-based dismissals. Consequently, Perry would have to bifurcate his case: pursue his discrimination claim in district court and challenge the jurisdictional CSRA dismissal in the Federal Circuit.

Justice Ruther Bader Ginsburg wrote for a majority that included Chief Justice John Roberts and Justices Anthony Kennedy, Stephen Breyer, Samuel Alito, Sonia Sotomayor and Elena Kagan. Ginsburg rebuffed the government’s argument on three points.

First, the MSPB did have jurisdiction over Perry’s claim. Like a court’s, an administrative agency’s jurisdiction is determined by the claimant’s non-frivolous allegations. Perry complained of a personnel action serious enough to warrant MSPB review, and those allegations were not frivolous or insubstantial. Because Perry also alleged that the action was based on discrimination, this was a mixed case that must be reviewed in district court under Kloeckner.

Second, the court identified “multiple infirmities” in the government’s proposed distinction between procedural or merits dismissals on one hand and jurisdictional dismissals on the other. The distinction was “newly devised,” because the government had expressly rejected that distinction in Kloeckner, and appeared to be reversing course only after the adverse result in that prior case. The majority described the distinction as “perplexing,” “elusive,” “slippery” and “unworkable.” The MSPB might “disassociate” itself from complaints based on many threshold determinations; there was no reason to treat different thresholds differently. Jurisdiction and merits may overlap, as they did here: Whether Perry voluntarily accepted the sanctions, the fact on which the MSPB concluded that it lacked jurisdiction, formed the heart of the dispute on the merits of Perry’s complaint.

Third, the majority rejected the bifurcation of claims as inconsistent with the statutory scheme. It repeated Kloeckner’s insistence that had Congress wanted to bifurcate claims, it would have said so. It recognized that sending all MSPB decisions to the Federal Circuit would promote national uniformity, but said that uniformity “should not override 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.”

The majority closed by insisting that its approach did not “tweak” the statute, the term Gorsuch used; rather, it read the statute “sensibly” to refrain from appeal-splitting bifurcation. The court included an emphatic and explicit two-part holding, intended to foreclose further attempts to work around Kloeckner: The Federal Circuit is the proper review forum when the MSPB disposes of complaints arising solely under the CSRA, while all mixed cases disposed of by the MSPB are properly reviewed in district court.

Justice Gorsuch’s dissent was not surprising, given his aggressive and skeptical questioning during oral argument. Like his first opinion for the court earlier this month in Henson v. Santander Consumer, his first dissent (joined by Justice Clarence Thomas) is written as an essay, without section breaks, and in a conversational and pithy rhetorical style. But the sharpness of Gorsuch’s views about statutory interpretation and of his disagreement with the majority (and with the petitioner, Perry) is unmistakable. Perry, Gorsuch began, “asks us to tweak a congressional statute,” but “I decline Mr. Perry’s invitation and would instead just follow the words of the statute as written.” Indeed, “Perry’s is an invitation I would run from fast,” given that it is “seriously atextual and practically unattractive.”

According to Gorsuch, the basic rule at issue was that appeals of MSPB decisions were to be filed in the Federal Circuit, with deferential review, to ensure uniform law governing executive-branch personnel actions. The exception was for agency actions that violated not only the CSRA, but also antidiscrimination laws, which also could be presented to the MSPB. Such cases of discrimination were exempt from the Federal Circuit default rule and instead could be brought in district court. Putting these directions together, he argued, the statutory scheme is plain: Disputes over civil-service laws head to the Federal Circuit, and discrimination cases go to district court. To the extent that requires an employee such as Perry to follow different paths for what began as a single complaint, that is a congressional command, not to be ignored because Perry considers it a “hassle.”

While acknowledging that the court was bound by Kloeckner, Gorusch argued that Kloeckner did not address or answer the question in this case. He read Kloeckner as addressing only where the employee should take the discrimination piece of a mixed case, and the answer was district court. Kloeckner did not require the court to decide, and the court did not decide, that an employee also could challenge the adverse civil-service ruling (what Perry sought to appeal) in district court. Although a footnote in Kloeckner stated that “the suit will come to the district court for a decision on both questions,” that was dicta that did not bind the court in a different case.

Congress, Gorsuch insisted, created a good statute. To the extent the statute needed repair, “there’s a constitutionally prescribed way to do it. It’s called legislation.” And although making new laws is difficult and protracted, that is not a constitutional bug, but “the point of the design, the better to preserve liberty.”

Gorsuch’s textualism often is compared with that of the justice he replaced, the late Antonin Scalia. But Scalia joined the unanimous court in Kloeckner. That difference may foretell where the textualism debate will go on the new Supreme Court.

Recommended Citation: Howard M. Wasserman, Opinion analysis: Majority sides with employee in civil service argument, but Gorsuch announces his presence with authority, SCOTUSblog (Jun. 26, 2017, 6:24 AM),