Perry v. Merit Systems Protection Board
829 F.3d 760
D.C. Cir.2016Background
- Anthony Perry, a Census Bureau employee, entered a settlement in 2011 that resulted in early retirement and a 30-day suspension; he later appealed, alleging discrimination and that the settlement was coerced.
- The MSPB concluded Perry’s retirement and suspension were voluntary and dismissed his appeal for lack of jurisdiction (a jurisdictional dismissal).
- Perry petitioned this court pro se for review; the D.C. Circuit appointed amicus and considered whether the petition should be transferred and, if so, to which forum.
- Statutory framework: MSPB decisions generally are reviewed in the Federal Circuit, but “mixed cases” (appealable to the MSPB and alleging discrimination) are reviewed in district court under 5 U.S.C. § 7703(b)(2).
- This case parallels Powell v. Dep’t of Def., where the D.C. Circuit held that appeals dismissed by the MSPB for lack of jurisdiction belong in the Federal Circuit, not district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper forum for judicial review when MSPB dismisses a purported mixed case for lack of jurisdiction (jurisdictional dismissal) | Perry: Kloeckner establishes that MSPB dismissals of mixed cases should be reviewed in district court, even when dismissal is pre-merits | MSPB: Powell controls; jurisdictional dismissals mean the case was never appealable to the MSPB, so review belongs in the Federal Circuit | Court: Follow Powell — jurisdictional dismissals are reviewed in the Federal Circuit; transfer to the Federal Circuit |
| Whether Supreme Court’s Kloeckner v. Solis overruled Powell | Perry: Kloeckner’s rule for procedural dismissals eviscerates Powell and requires district-court review | MSPB: Kloeckner dealt with procedural (e.g., untimeliness) dismissals and does not overrule Powell’s distinction for jurisdictional dismissals | Court: Kloeckner did not eviscerate Powell; distinction between procedural and jurisdictional dismissals remains valid |
Key Cases Cited
- Powell v. Department of Defense, 158 F.3d 597 (D.C. Cir. 1998) (holds appeals dismissed by MSPB for lack of jurisdiction belong in the Federal Circuit)
- Kloeckner v. Solis, 133 S. Ct. 596 (2012) (holds MSPB dismissals on procedural grounds in mixed cases are reviewed in district court)
- Conforto v. MSPB, 713 F.3d 1111 (Fed. Cir. 2013) (holds pre-Kloeckner Federal Circuit precedent on jurisdictional dismissals remains good law)