Kerr v. Merit Sys. Prot. Bd., 908 F.3d 1307

Leslie A. Kerr, a Fish and Wildlife Service employee, retired involuntarily in June 2006 and filed EEO and MSPB proceedings alleging sex/religious discrimination and WPA retaliation; her removal is treated as a removal for purposes of review.
Kerr initially filed an MSPB appeal in June 2006 but, after MSPB dismissed nonjurisdictional claims without prejudice, elected to have her removal-related claims reviewed first by the agency EEO office.
The EEO issued a final decision in September 2008 rejecting discrimination claims and stating Kerr could either appeal to the MSPB or file a district-court action under 5 U.S.C. § 7702(a)(2); Kerr sued in district court in October 2008.
The district court granted summary judgment to the government in 2011; the Ninth Circuit reversed in 2013; on remand the government argued lack of jurisdiction over the WPA claim for failure to exhaust MSPB remedies, the district court dismissed the WPA claim in 2014, and the Ninth Circuit affirmed dismissal of the WPA claim in 2016 (Kerr II).
Kerr petitioned the Supreme Court (denied March 2017) and in April 2017 sought to reopen her earlier MSPB appeal; the MSPB denied reopening as untimely and without good cause.
The Federal Circuit reverses: it holds the MSPB abused its discretion in refusing to excuse Kerr’s delay because her filing in district court was a reasonable choice in light of circuit conflict, she diligently pursued appeals, and the agency identified no substantial prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Kerr showed "good cause" to excuse an 8.5‑year delay in reopening an MSPB appeal after an EEO final decision	Kerr argues her pursuit of district‑court review of a mixed case (including WPA claim) was reasonable under statute/regulations and circuit conflict (Wells); she diligently litigated and sought higher‑court review, so delay is excusable	Government argues Kerr should have appealed the EEO decision to MSPB; once district court dismissed in 2014 Kerr was on notice the forum was wrong and delay thereafter is inexcusable	Court: Good cause exists — filing in district court was reasonable given precedent conflict, subsequent appeals were reasonable, and agency showed no substantial prejudice; MSPB abused its discretion in denying reopening
Whether pursuing district‑court review constituted an effective election of remedies that divested the MSPB of jurisdiction over the WPA claim	Kerr contends her district‑court filing did not foreclose MSPB review because the district court lacked jurisdiction over the WPA claim, so she seeks initial MSPB review, not a second bite	Government contends election doctrine bars MSPB review after choosing district court	Court: No effective election — where chosen forum lacks jurisdiction and provides no remedy, election doctrine does not strip MSPB jurisdiction

Kloeckner v. Solis, 568 U.S. 41 (2012) (mixed‑case options: either MSPB or district court after agency decision)
Perry v. Merit Sys. Prot. Bd., 137 S. Ct. 1975 (2017) (limits on review of mixed cases)
Wells v. Shalala, 228 F.3d 1137 (10th Cir. 2000) (district court may hear unreviewed WPA claim in mixed case)
Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990) (equitable tolling doctrine: filing defective pleading can excuse delay)
Herring v. Merit Sys. Prot. Bd., 778 F.3d 1011 (Fed. Cir. 2015) (standards and factors for evaluating MSPB "good cause" determinations)
Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650 (Fed. Cir. 1992) (delay excused when petitioner exercises diligence/ordinary prudence)
Kerr v. Jewell, 836 F.3d 1048 (9th Cir. 2016) (Kerr II) (Ninth Circuit held district court lacked jurisdiction over unreviewed WPA claim but recognized Kerr’s reasonable reliance on Wells and left tolling issue to MSPB)