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Wednesday, December 12, 2012

Kloeckner v. Solis: SCOTUS Issues Decision on Jurisdiction for Federal Employee Merit Systems Protection Board "Mixed Case" Appeals

The Supreme Court of the United States on Monday issued its decision in Kloeckner v. Solis. In a per curiam opinion by Justice Kagan, the Court held that a federal employee who claims that federal agency action appealable to the Merits System Protection Board violates an anti-discrimination statute should go to district court not the Federal Circuit, regardless of whether the case was decided on procedural grounds or the merits.  

More concisely stated (thanks to SCOTUSblog's Lyle Denniston):  
An employee of a federal agency who believes that she suffered a serious problem at work — like, for example, getting fired — and who is persuaded that the reason for the action was discrimination based, say, on sex or age, has a right to take the case to a specialized board with the power to decide the claim. If the worker is dissatisfied with the result at the board, she has a right to go to court.  
The decision's syllabus provides a more detailed explanation: 
The Civil Service Reform Act of 1978 (CSRA) permits a federal employee subjected to a particularly serious personnel action such as a discharge or demotion to appeal her agency’s decision to the Merit Systems Protection Board (MSPB or Board). Such an appeal may allege that the agency had insufficient cause for taking the action under the CSRA itself; but the appeal may also or instead charge the agency with discrimination prohibited by a federal statute. See 5 U. S. C. §7702(a)(1). When an employee alleges that a personnel action appealable to the MSPB was based on discrimination, her case is known as a “mixed case.” See 29 CFR §1614.302. Mixed cases are governed by special procedures set out in the CSRA and regulations of the MSPB and Equal Employment Opportunity Commission (EEOC).   
Under those procedures, an employee may initiate a mixed case by filing a discrimination complaint with the agency. If the agency decides against the employee, she may either appeal the agency’s decision to the MSPB or sue the agency in district court. Alternatively, the employee can bypass the agency and bring her mixed case directly to the MSPB. If the MSPB upholds the personnel action, whether in the first instance or after the agency has done so, the employee is entitled to seek judicial review. 
Section 7703(b)(1) of the CSRA provides that petitions for review of MSPB decisions “shall be filed in the . . . Federal Circuit,” except as provided in §7703(b)(2). Section 7703(b)(2) instructs that “[c]ases of discrimination subject to the provisions of [§7702] shall be filed under [the enforcement provision of a listed antidiscrimination statute].” Those enforcement provisions all authorize suit in federal district court. The “cases of discrimination subject to the provisions of §7702” are those in which an employee “(A) has been affected by an action which [she] may appeal to the [MSPB], and (B) alleges that a basis for the action was discrimination prohibited by” a listed federal statute; in other words, “mixed cases.” 
In 2005, while an employee of the Department of Labor (DOL or agency), petitioner Carolyn Kloeckner filed a complaint with the agency’s civil rights office, alleging that DOL had engaged in unlawful sex and age discrimination by subjecting her to a hostile work environment. Following applicable EEOC regulations, DOL completed an internal investigation and report, and Kloeckner requested a hearing before an EEOC administrative judge. While the EEOC case was pending, Kloeckner was fired. Because Kloeckner believed that DOL’s decision to fire her was based on unlawful discrimination, she now had a “mixed case.” Kloeckner originally brought her mixed case directly to the MSPB. Concerned about duplicative discovery expenses between her EEOC and MSPB cases, she moved to amend her EEOC complaint to include her claim of discriminatory removal and asked the MSPB to dismiss her case without prejudice for four months to allow the EEOC process to go forward. Both motions were granted. In September 2006, the MSPB dismissed her appeal without prejudice to her right to refile by January 18, 2007. The EEOC case, however, continued until April 2007, when the EEOC judge terminated the proceeding as a sanction for Kloeckner’s bad-faith discovery conduct and returned the case to DOL for a final decision. In October, DOL ruled against Kloeckner on all of her claims. Kloeckner appealed to the Board in November 2007. The Board dismissed Kloeckner’s appeal as untimely, viewing it as an effort to reopen her old MSPB case months after the January 18 deadline.  
Kloeckner then brought this action against DOL in Federal District Court, alleging unlawful discrimination. The court dismissed the complaint for lack of jurisdiction. It held that, because the MSPB dismissed Kloeckner’s claims on procedural grounds, she should have sought review in the Federal Circuit under §7703(b)(1); in the court’s view, the only discrimination cases that could go to district court pursuant to §7703(b)(2) were those the MSPB had decided on the merits. The Eighth Circuit affirmed.   
Held: A federal employee who claims that an agency action appealable to the MSPB violates an antidiscrimination statute listed in §7702(a)(1) should seek judicial review in district court, not the Federal Circuit, regardless whether the MSPB decided her case on procedural grounds or on the merits. Pp. 7–14.  
(a) Two sections of the CSRA, read naturally, direct employees like Kloeckner to district court. Begin with § 7703, which governs judicial review of MSPB rulings. Section 7703(b)(1) provides that petitions to review the Board’s final decisions should be filed in the Federal Circuit—“[e]xcept as provided in paragraph (2) of this subsection.” Section 7703(b)(2) then provides that “[c]ases of discrimination subject to the provisions of [§7702]” “shall be filed under” the enforcement provision of a listed antidiscrimination statute. Each of the referenced enforcement provisions authorizes an action in federal district court. Thus, “[c]ases of discrimination subject to the provisions of [§7702]” shall be filed in district court. Turn next to §7702, which provides that the cases “subject to [its] provisions” are cases in which a federal employee “has been affected by an action which [she] may appeal to the [MSPB],” and “alleges that a basis for the action was discrimination prohibited by” a listed federal statute. The “cases of discrimination subject to” §7702 are therefore mixed cases. Putting §7703 and §7702 together, mixed cases shall be filed in district court. That is where Kloeckner’s case should have been, and indeed was, filed. Regardless whether the MSPB dismissed her claim on the merits or threw it out as untimely, she brought the kind of case that the CSRA routes to district court. Pp. 7–8.    
(b) The Government’s alternative view—that the CSRA directs the MSPB’s merits decisions to district court, while channeling its procedural rulings to the Federal Circuit—is not supported by the statute. According to the Government, that bifurcated scheme, though not specifically prescribed in the CSRA, lies hidden in the statute’s timing requirements. But the Government cannot explain why Congress would have constructed such an obscure path to such a simple result. And taking the Government’s analysis one step at a time makes it no more plausible. Pp. 8–13. 
The opinion is available here.  

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