Perry v. Merit Systems Protection Board

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Perry v. Merit Systems Protection Board

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Justices release financial disclosures – Amy Howe

Challengers ask justices to put off census decision – Amy Howe

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Conference of June 13, 2019

Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
16-399	D.C. Cir.	Apr 17, 2017 Tr.Aud.	Jun 23, 2017	7-2	Ginsburg	OT 2016

Holding: The proper review forum when the Merit Systems Protection Board dismisses a mixed case -- a complaint by an employee of a serious adverse employment action attributable, in whole or in part, to bias based on race, gender, age or disability -- on jurisdictional grounds is district court.

Judgment: Reversed and remanded, 7-2, in an opinion by Justice Ginsburg on June 23, 2017. Justice Gorsuch filed a dissenting opinion, in which Justice Thomas joined.

Opinion analysis: Majority sides with employee in civil service argument, but Gorsuch announces his presence with authority (Howard M. Wasserman)
A "view" from the courtroom: The metes and bounds of the term (Mark Walsh)
And then there were nine – the remaining decisions (Amy Howe)
Argument analysis: Pulling wings off flies and other efforts to make sense of the Civil Service Reform Act (Howard M. Wasserman)
Argument preview: Revisiting the proper forum for civil service review in mixed cases (Howard M. Wasserman)
Court adds 16 new cases to its merits docket (Expanded) (Amy Howe)
Petition of the day (Kate Howard)

Date	Proceedings and Orders (key to color coding)
Sep 27 2016	Petition for a writ of certiorari filed. (Response due October 27, 2016)
Oct 21 2016	Order extending time to file response to petition to and including November 28, 2016.
Nov 14 2016	Order further extending time to file response to petition to and including December 5, 2016.
Dec 05 2016	Brief of respondent Merit Systems Protection Board in opposition filed.
Dec 20 2016	Reply of petitioner Anthony W. Perry filed.
Dec 21 2016	DISTRIBUTED for Conference of January 6, 2017.
Jan 09 2017	DISTRIBUTED for Conference of January 13, 2017.
Jan 13 2017	Petition GRANTED.
Feb 14 2017	Consent to the filing of amicus curiae briefs in support of either party or neither party from counsel for the petitioner.
Feb 17 2017	SET FOR ARGUMENT ON Monday, April 17, 2017.
Feb 22 2017	Record requested from U.S.C.A. for the D.C. Circuit.
Feb 27 2017	Record received from U.S.C.A. for the D.C. Circuit. The record is electronic.
Feb 27 2017	Joint appendix filed. (Statement of costs filed.)
Feb 27 2017	Brief of petitioner Anthony W. Perry filed.
Mar 03 2017	Brief amicus curiae of Metropolitan Washington Employment Lawyers Association (MWELA) filed.
Mar 17 2017	Record received from the Merit Systems Protection Board (1 box).
Mar 22 2017	CIRCULATED.
Mar 29 2017	Brief of respondent Merit Systems Protection Board filed. (Distributed)
Apr 10 2017	Reply of petitioner Anthony W. Perry filed. (Distributed)
Apr 17 2017	Argued. For petitioner: Christopher Landau, Washington, D. C. For respondent: Brian H. Fletcher, Assistant to the Solicitor General, Department of Justice, Washington, D. C.
Jun 23 2017	Judgment REVERSED and case 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.
Aug 07 2017	Record from the U.S. Merit Systems Protection Board has been returned.

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This Week at the Court
The Supreme Court will release orders from the June 13 conference on Monday at 9:30 a.m.; John Elwood's "Relist Watch" compiles the petitions that were relisted for this conference.
There is a possibility of opinions on Monday at 10 a.m.
On Thursday, the justices meet for their June 20 conference.
Major Cases
- Department of Commerce v. New York
  (1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.
- Lamone v. Benisek
  In case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.
- Kisor v. Wilkie
  Whether the Supreme Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation.
- Rucho v. Common Cause
  (1) Whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.
- The American Legion v. American Humanist Association
  (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.
- Gamble v. United States
  Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
see all this term’s cases »
Recent Decisions
- Quarles v. United States Michigan’s third-degree home-invasion statute substantially corresponds to or is narrower than generic burglary for purposes of qualifying for enhanced sentencing under the Armed Career Criminal Act.
- Parker Drilling Management Services, Ltd. v. Newton Under the Outer Continental Shelf Lands Act, when federal law addresses the relevant issue, state law is not adopted as surrogate federal law on the Outer Continental Shelf.
- Return Mail Inc. v. United States Postal Service The federal government is not a “person” capable of petitioning the Patent Trial and Appeal Board to institute patent review proceedings under the Leahy-Smith America Invents Act.
- Azar v. Allina Health Services Because the Department of Health and Human Services neglected its statutory notice-and-comment obligations when it revealed a new policy that dramatically – and retroactively – reduced Medicare payments to hospitals serving low-income patients, its policy must be vacated.
- Fort Bend County, Texas v. Davis The charge-filing precondition to suit set out in Title VII of the Civil Rights Act of 1964 is not a jurisdictional requirement.
- Mont v. United States Pretrial detention later credited as time served for a new conviction tolls a supervised-release term under 18 U.S.C. §3624(e), even if the court must make the tolling calculation after learning whether the time will be credited.
- Taggart v. Lorenzen A creditor may be held in civil contempt for violating a bankruptcy court’s discharge order if there is no fair ground of doubt as to whether the order barred the creditor’s conduct.
see all this term’s cases »
Current Relists
- Jordan v. City of Darien, Georgia Whether the existence of probable cause defeats a First Amendment retaliatory arrest claim as a matter of law.
- Klein v. Oregon Bureau of Labor and Industries (1) Whether Oregon violated the free speech and free exercise clauses of the First Amendment by compelling the Kleins to design and create a custom wedding cake to celebrate a same-sex wedding ritual in violation of their sincerely held religious beliefs; (2) whether the Supreme Court should overrule Employment Division, Department of Human Resources of Oregon v. Smith; and (3) whether the Supreme Court should reaffirm Smith’s hybrid-rights doctrine, applying strict scrutiny to free exercise claims that implicate other fundamental rights, and resolve the circuit split over the doctrine’s precedential status.
- McGee v. McFadden (1) Whether the U.S. Court of Appeals for the 4th Circuit erred when it found no constitutional error when the state failed to disclose Brady evidence, a letter from a jailhouse snitch, until the post-trial hearing for a motion for a new trial; (2) whether the state and federal courts’ decisions were contrary to Giglio v. United States, United States v. Bagley, Brady v. Maryland and Napue v. Illinois when the state failed to disclose material impeachment evidence, a letter from a jailhouse snitch who testified that petitioner confessed to him; and (3) whether the state and federal courts erred in finding that trial counsel rendered effective assistance of counsel when he failed to interview Michael Jones and call him as a witness.
More Petitions »
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Statistical Snapshot

Cases argued 69

Cases decided 42

Summary reversals 5

Merits cases granted to date 73

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On June 3, Justice Clarence Thomas spoke with David Rubenstein for the Supreme Court Historical Society’s annual lecture at the Supreme Court.

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Cases argued	69
Cases decided	42
Summary reversals	5
Merits cases granted to date	73

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