PERRY v. MERIT SYSTEMS PROTECTION BOARD
No. 16-399
SUPREME COURT OF THE UNITED STATES
June 23, 2017
582 U. S. ____ (2017)
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 17, 2017-Decided June 23, 2017
OCTOBER TERM, 2016
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
Syllabus
PERRY v. MERIT SYSTEMS PROTECTION BOARD
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 16-399. Argued April 17, 2017-Decided June 23, 2017
Under the Civil Service Reform Act of 1978 (CSRA), the Merit Systems Protection Board (MSPB or Board) has the power to review certain serious personnel actions against federal employees. If an employee asserts rights under the CSRA only, MSPB decisions are subject to judicial review exclusively in the Federal Circuit.
An employee who complains of a serious adverse employment action and attributes the action, in whole or in part, to bias based on race, gender, age, or disability brings a “mixed case.” When the MSPB dismisses a mixed case on the merits or on procedural grounds, review authority lies in district court, not the Federal Circuit. Id., at 50, 56. This case concerns the proper forum for judicial review when the MSPB dismisses such a case for lack of jurisdiction.
Anthony Perry received notice that he would be terminated from his employment at the U. S. Census Bureau for spotty attendance. Perry and the Bureau reached a settlement in which Perry agreed to a 30-day suspension and early retirement. The settlement also required Perry to dismiss discrimination claims he had filed separately with the Equal Employment Opportunity Commission (EEOC). After retiring, Perry appealed his suspension and retirement to the MSPB, alleging discrimination based on race, age, and disability, as well as retaliation by the Bureau for his prior discrimination complaints. The settlement, he maintained, did not stand in the way, because the Bureau had coerced him into signing it. But an MSPB administrative law judge (ALJ) determined that Perry had failed to prove that the settlement was coerced. Presuming Perry‘s retirement to be vol-
Held: The proper review forum when the MSPB dismisses a mixed case on jurisdictional grounds is district court. Pp. 9-17.
(a) The Government argues that employees must split their mixed claims, appealing MSPB nonappealability rulings to the Federal Circuit while repairing to the district court to adjudicate their discrimination claims. Perry counters that the district court alone can resolve his entire complaint. Perry advances the more sensible reading of the statutory prescriptions.
Kloeckner announced a clear rule: “[M]ixed cases shall be filed in district court.” 568 U. S., at 50; see id., at 56. The key to district court review is the employee‘s “clai[m] that an agency action appealable to the MSPB violates an antidiscrimination statute listed in
(b) The Government‘s proposed distinction between MSPB merits and procedural decisions, on the one hand, and the Board‘s jurisdictional rulings, on the other has multiple infirmities. Had Congress wanted to bifurcate judicial review, sending merits and procedural decisions to district court and jurisdictional dismissals to the Federal Circuit, it could have said so. See Kloeckner, 568 U. S., at 52. The Government‘s newly devised attempt to distinguish jurisdictional dismissals from procedural dismissals is a departure from its position in Kloeckner. Such a distinction, as both parties recognized in Kloeckner, would be perplexing and elusive. The distinction between jurisdiction and the merits is also not inevitably sharp, for the two
829 F. 3d 760, reversed and 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.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 16-399
ANTHONY W. PERRY, PETITIONER v. MERIT SYSTEMS PROTECTION BOARD
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 23, 2017]
JUSTICE GINSBURG delivered the opinion of the Court.
This case concerns the proper forum for judicial review when a federal employee complains of a serious adverse employment action taken against him, one falling within the compass of the Civil Service Reform Act of 1978 (CSRA),
In the CSRA, Congress created the Merit Systems Protection Board (MSPB or Board) to review certain serious personnel actions against federal employees. If an employee asserts rights under the CSRA only, MSPB decisions, all agree, are subject to judicial review exclusively in the Federal Circuit.
When a complaint presents a mixed case, and the MSPB dismisses it, must the employee resort to the Federal Circuit for review of any civil-service issue, reserving claims under federal antidiscrimination law for discrete district court adjudication? If the MSPB dismisses a mixed case on the merits, the parties agree, review authority lies in district court, not the Federal Circuit. In Kloeckner, 568 U. S., at 50, 56, we held, the proper review forum is also the district court when the MSPB dismisses a mixed case on procedural grounds, in Kloeckner itself, failure to meet a deadline for Board review set by the MSPB. We hold today that the review route remains the same when the MSPB types its dismissal of a mixed case as “jurisdictional.” As in Kloeckner, we are mindful that review rights should be read not to protract proceedings, increase costs, and stymie employees,1 but to secure expeditious resolution of the claims employees present. See Elgin v. Department of Treasury, 567 U. S. 1, 15 (2012) (emphasizing need for “clear guidance about the proper forum for [an] employee‘s [CSRA] claims“). Cf.
I
A
The CSRA “establishes a framework for evaluating personnel actions taken against federal employees.” Kloeckner v. Solis, 568 U. S. 41, 44 (2012). For “particularly serious” actions, “for example, a removal from employment or a reduction in grade or pay,” “the affected employee has a right to appeal the agency‘s decision to the MSPB.” Ibid. (citing
In Kloeckner, we explained, “[w]hen an employee complains of a personnel action serious enough to appeal to the MSPB and alleges that the action was based on discrimination, she is said (by pertinent regulation) to have brought a ‘mixed case.‘” Ibid. (quoting
As Kloeckner detailed, the CSRA provides diverse procedural routes for an employee‘s pursuit of a mixed case. The employee “may first file a discrimination complaint with the agency itself,” in the agency‘s equal employment opportunity (EEO) office, “much as an employee challenging a personnel practice not appealable to the MSPB could do.” Id., at 45 (citing
Section 7702 prescribes appellate proceedings in actions involving discrimination. Defining the MSPB‘s jurisdiction in mixed-case appeals that bypass an agency‘s EEO office,
“[I]n the case of any employee . . . who—
“(A) has been affected by an action which the employee . . . may appeal to the [MSPB], and
“(B) alleges that a basis for the action was discrimination prohibited by [specified antidiscrimination statutes], . . .
“the Board shall, within 120 days of the filing of the appeal, decide both the issue of discrimination and the appealable action in accordance with the Board‘s appellate procedures . . . .”2
Section 7702(a)(2) similarly authorizes a mixed-case appeal to the MSPB from an agency EEO office‘s decision. Then, “[i]f the MSPB upholds the personnel action (whether in the first instance or after the agency has done so), the employee again has a choice: She may request additional administrative process, this time with the EEOC, or else she may seek judicial review.” Kloeckner, 568 U. S., at 45 (citing
Federal district court is also the proper forum for judicial review, we held in Kloeckner, when the MSPB dismisses a mixed case on procedural grounds. Id., at 50, 56. We
The instant case presents this question: Where does an employee seek judicial review when the MSPB dismisses her civil-service case alleging discrimination neither on the merits nor on a procedural ground, but for lack of jurisdiction?
B
Anthony Perry worked at the U. S. Census Bureau until 2012. 829 F. 3d 760, 762 (CADC 2016). In 2011, Perry received notice that he would be terminated because of spotty attendance. Ibid. Later that year, Perry and the Bureau reached a settlement in which Perry agreed to a 30-day suspension and early retirement. Ibid. The agreement required Perry to dismiss discrimination claims he had separately filed with the EEOC. Ibid.
After retiring, Perry appealed his suspension and retirement to the MSPB. Ibid. He alleged discrimination on grounds of race, age, and disability, as well as retaliation by the Bureau for his prior discrimination complaints. Ibid. The settlement, he maintained, did not stand in the way, because the Bureau had coerced him into signing it. Ibid.
An MSPB administrative law judge (ALJ) eventually determined that Perry had failed to prove that the settlement was coerced. Perry v. Department of Commerce, No. DC-0752-12-0486-B-1 etc. (Dec. 23, 2013) (initial deci-
The MSPB affirmed the ALJ‘s decision. See Perry v. Department of Commerce, 2014 WL 5358308, *1 (Aug. 6, 2014) (final order). The settlement agreement, the Board recounted, provided that Perry would waive his Board appeal rights with respect to his suspension and retirement. Ibid. Because Perry did not prove that the agreement was involuntary, the Board determined (in accord with the ALJ) that his separation should be deemed voluntary, hence not an adverse action subject to the Board‘s jurisdiction under
Perry instead filed a pro se petition for review in the D. C. Circuit. 829 F. 3d, at 763. The court ordered jurisdictional briefing and appointed counsel to argue for Perry. Ibid. By the time the court heard argument, the parties had agreed that the D. C. Circuit lacked jurisdiction, but disagreed on whether the proper forum for judicial review was the Federal Circuit, as the Government contended, or federal district court, as Perry maintained. Ibid.
The D. C. Circuit held that the Federal Circuit had jurisdiction over Perry‘s petition and transferred his case to that court under
The D. C. Circuit rejected Perry‘s argument that Powell was undermined by this Court‘s intervening decision in Kloeckner, which held MSPB procedural dispositions of mixed cases reviewable in district court. 829 F. 3d, at 764-768. Kloeckner, the D. C. Circuit observed, repeatedly tied its decision to dismissals on “procedural grounds,” 568 U. S., at 44, 46, 49, 52, 54, 55. See 829 F. 3d, at 765. Jurisdictional dismissals differ from procedural dismissals, the D. C. Circuit concluded, given the CSRA‘s reference to mixed cases as those “which the employee . . . may appeal to the [MSPB].” Id., at 766-767 (quoting
We granted certiorari to review the D. C. Circuit‘s decision, 580 U. S. ____ (2017), which accords with the Federal Circuit‘s decision in Conforto v. Merit Systems Protection Bd., 713 F. 3d 1111 (2013).
II
Federal employees, the Government acknowledges, have a right to pursue claims of discrimination in violation of federal law in federal district court. Nor is there any doubt that the Federal Circuit lacks authority to adjudicate such claims. See
The Government argues, and the dissent agrees, that employees, situated as Perry is, must split their claims, appealing MSPB nonappealability rulings to the Federal Circuit while repairing to the district court for adjudication of their discrimination claims. As Perry sees it, one stop is all he need make. Exclusively competent to adjudicate “[c]ases of discrimination,”
Section 7702(a)(1), the Government contends, marks a case as mixed only if the employee “has been affected by an action which the employee . . . may appeal to the [MSPB].” Brief for Respondent 15, 17-19, 21. An MSPB finding of nonappealability removes a case from that category, the Government asserts, and hence, from the purview of “[c]ases of discrimination” described in
Perry emphasizes in response that
Perry, we hold, advances the more sensible reading of the statutory prescriptions. The Government‘s procedure-jurisdiction distinction, we conclude, is no more tenable than “the merits-procedure distinction” we rejected in Kloeckner, 568 U. S., at 51.
A
As just noted, a nonfrivolous allegation of jurisdiction generally suffices to establish jurisdiction upon initiation of a case. See Jerome B. Grubart, Inc., 513 U. S., at 537. See also Bell v. Hood, 327 U. S. 678, 682-683 (1946) (To invoke federal-question jurisdiction, allegations in a complaint must simply be more than “insubstantial or frivolous,” and “[i]f the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction.“). So too here: whether an employee “has been affected by an action which [she] may appeal to the [MSPB],”
We announced a clear rule in Kloeckner: “[M]ixed cases shall be filed in district court.” 568 U. S., at 50. An em-
EEOC regulations, see supra, at 3, are in accord: The defining feature of a “mixed case appeal,” those regulations instruct, is the employee‘s “alleg[ation] that an appealable agency action was effected, in whole or in part, because of discrimination.”
Because Perry “complain[ed] of a personnel action serious enough to appeal to the MSPB” (in his case, a 30-day suspension and involuntary removal, see supra, at 6;
B
The Government rests heavily on a distinction between MSPB merits and procedural decisions, on the one hand, and the Board‘s jurisdictional rulings, on the other.6 The distinction has multiple infirmities.
“If Congress had wanted to [bifurcate judicial review,] send[ing] merits decisions to district court and procedural dismissals to the Federal Circuit,” we observed in Kloeckner, “it could just have said so.” Id., at 52. The same observation could be made about bifurcating judicial review here, sending the MSPB‘s merits and procedural decisions to district court, but its jurisdictional dismissals to the Federal Circuit.7
A procedure-jurisdiction distinction for purposes of determining the court in which judicial review lies, as both
Just as the proper characterization of a question as jurisdictional rather than procedural can be slippery, the distinction between jurisdictional and merits issues is not inevitably sharp, for the two inquiries may overlap. See Shoaf v. Department of Agriculture, 260 F. 3d 1336, 1341 (CA Fed. 2001) (“recogniz[ing] that the MSPB‘s jurisdiction and the merits of an alleged involuntary separation are inextricably intertwined” (internal quotation marks omitted)). This case fits that bill. The MSPB determined that it lacked jurisdiction over Perry‘s civil-service claims on the ground that he voluntarily released those claims by entering into a valid settlement with his employing agency, the Census Bureau. See App. to Pet. for Cert. 27a.9
Distinguishing between MSPB jurisdictional rulings and the Board‘s procedural or substantive rulings for purposes of allocating judicial review authority between district court and the Federal Circuit is problematic for a further reason: In practice, the distinction may be unworkable. The MSPB sometimes rules on alternate grounds, one typed “jurisdictional,” another either procedural or substantive. See, e.g., Davenport v. Postal Service, 97 MSPR 417 (2004) (dismissing “for lack of jurisdiction and as untimely filed” (emphasis added)). To which court does appeal lie? Or, suppose that the Board addresses a complaint that encompasses multiple claims, dismissing some for want of jurisdiction, others on procedural or substantive grounds. See, e.g., Donahue v. Postal Service, 2006 WL 859448, *1, *3 (ED Pa., Mar. 31, 2006). Tellingly, the Government is silent on the proper channel-
Desirable as national uniformity may be,11 it 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. Perry‘s comprehension of the complex statutory text, we are persuaded, best serves “[t]he CSRA‘S objective of creating an integrated scheme of review[, which] would be seriously undermined” by “parallel litigation regarding the same agency action.” Elgin, 567 U. S., at 14. See also United States v. Fausto, 484 U. S. 439, 444-445 (1988).12 Perry asks us not to “tweak” the stat-
*
*
*
For the reasons stated, the judgment of the United States Court of Appeals for the District of Columbia Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
single matter in different forums. See 567 U. S., at 13-14; 484 U. S., at 444-445. It is the dissent‘s insistence on bifurcated review, therefore, that ”Elgin and Fausto warned against,” post, at 10.
Anthony Perry asks us to tweak a congressional statute—just a little—so that it might (he says) work a bit more efficiently. No doubt his invitation is well meaning. But it is one we should decline all the same. Not only is the business of enacting statutory fixes one that belongs to Congress and not this Court, but taking up Mr. Perry‘s invitation also seems sure to spell trouble. Look no further than the lower court decisions that have already ventured where Mr. Perry says we should follow. For every statutory “fix” they have offered, more problems have emerged, problems that have only led to more “fixes” still. New challenges come up just as fast as the old ones can be gaveled down. Respectfully, I would decline Mr. Perry‘s invitation and would instead just follow the words of the statute as written.
Our case concerns the right of federal employees to pursue their employment grievances under the Civil Service Reform Act. Really, it concerns but a small aspect of that right. Everyone agrees that employees may contest certain adverse employment actions—generally serious ones like dismissals—before the Merit Systems Protection Board. See
First, the rule. The Act says that an employee‘s appeal usually “shall be filed in . . . the Federal Circuit,”
Second, the exception. Congress recognized that sometimes agencies taking adverse employment actions against employees violate not just federal civil service laws, but also federal antidiscrimination laws. Usually, of course, employees who wish to pursue discrimination claims in federal district court must first exhaust those claims in proceedings before their employing agency. See, e.g.,
Putting these directions together, the statutory scheme is plain. Disputes arising under the civil service laws head to the Federal Circuit for deferential review; discrimination cases go to district court for de novo review. Congress allowed employees an elective option to bring their discrimination claims to the Board, but didn‘t allow this option to destroy the framework it established for the resolution of civil service questions. These rules provide straightforward direction to courts and guidance to federal employees who often proceed pro se.
These rules also tell us all we need to know to resolve our case. Construing his pro se filings liberally, Mr. Perry pursued civil service and discrimination claims before the Board without first exhausting his discrimination claim before his own agency. The Board held that it couldn‘t hear Mr. Perry‘s claims because he hadn‘t suffered an adverse employment action sufficient to trigger its jurisdiction under the Act. Mr. Perry now seeks to contest the Board‘s assessment of its jurisdiction and win a review there that so far he‘s been denied. See, e.g., Brief for Petitioner 24. No doubt, too, he wants the chance to proceed on the merits before the Board for good reason: A victory there is largely unappealable by the government. See
Mr. Perry, though, invites us to adopt a very different regime, one that would have the district court review the Board‘s ruling on the scope of its jurisdiction. Having to contest Board rulings on civil service and discrimination issues in different courts, he says, is a hassle. So, he submits, we should fix the problem by allowing civil service law questions to proceed to district court whenever an employee pursues a case of discrimination before the Board. In support of his proposal, he points us to a line of lower court cases associated with Williams v. Department of Army. And there, indeed, the Federal Circuit adopted a fix much like what Mr. Perry now proposes: allowing civil service claims to tag along to district court with discrimination claims because, in its judgment, “[f]rom the standpoint of judicial economy, consideration of all issues by a single tribunal is clearly preferable.” 715 F. 2d 1485, 1490 (1983) (en banc).
Mr. Perry‘s is an invitation I would run from fast. If a statute needs repair, there‘s a constitutionally prescribed way to do it. It‘s called legislation. To be sure, the demands of bicameralism and presentment are real and the process can be protracted. But the difficulty of making new laws isn‘t some bug in the constitutional design: it‘s the point of the design, the better to preserve liberty. Besides, the law of unintended consequences being what it is, judicial tinkering with legislation is sure only to invite trouble. Just consider the line of lower court authority Mr. Perry asks us to begin replicating now in the U. S. Reports. Having said that district courts should sometimes adjudicate civil service disputes, these courts have quickly and necessarily faced questions about how and when they should do so. And without any guidance from Congress on these subjects, the lower courts’ solutions have only wound up departing further and further from statutory text—and invited yet more and more questions
Take this one. Recall that the statute says that de novo standard of review applies to cases filed in district court. See
But that‘s just the beginning. The statute allows only cases “filed under” certain specified federal antidiscrimination statutes to proceed to district court. Those laws (of course) prescribe remedies to vindicate harms associated with discrimination, including equitable relief and damages. See, e.g.,
Answer all those questions and still more arise. What happens if the Board fully remedies an employee‘s discrimination claim, but rejects his simultaneously litigated civil service dispute? Should the employee go to district court with a stand-alone civil service complaint, to be nominally “filed” and adjudicated “under” a federal anti-
Still more and even curiouser questions follow. In some cases a district court will find the employee‘s discrimination claim meritless. When that happens, what should the district court do with a tag along civil service claim? Some lower courts after Williams have suggested that cases like these should be transferred back to the Federal Circuit in the “interests of judicial economy.” Nater v. Riley, 114 F. Supp. 2d 17, 29 (PR 2000). But isn‘t it more than a little strange that an employee (often proceeding pro se, no less) should be sent to district court only to be bounced back to the Federal Circuit—with each trip undertaken in the name of “judicial economy“?
And speaking of judicial economy, you might wonder what happened to the (no doubt efficient) policy Congress itself articulated when it declared that civil service issues should be decided by the Federal Circuit so they might be subject to a uniform body of appellate case law. See Fausto, 484 U. S., at 449; see also Elgin v. Department of Treasury, 567 U. S. 1, 13–14 (2012). In an effort to achieve a simulacrum of that statutory command, one Federal Circuit judge has suggested that the regional circuits hearing tag along civil service issues should defer to Federal Circuit interpretations of civil service laws, much as federal courts defer to state courts on matters of state law when sitting in diversity. See Williams, supra, at 1492–1493 (Nichols, J., concurring). Call it a sort of Erie doctrine for the Federal Circuit—if, of course, one lacking any basis in federalism, not to mention the statutory text.
By this point, you might wonder too if accepting Mr. Perry‘s invitation will even wind up saving him (or those
Mr. Perry‘s proposal for us may be seriously atextual and practically unattractive, but perhaps it has one thing going for it, he says. While we of course owe no fealty to Williams or other lower court opinions, and are free to learn from, rather than repeat, their misadventures, Mr. Perry suggests our decision in Kloeckner v. Solis, 568 U. S. 41 (2012), requires us to rule for him. Whatever we think about the statute‘s plain terms, he says, we are bound by precedent to send him to district court all the same.
But I just don‘t see in Kloeckner what Mr. Perry would have us find there. This Court was not asked to decide—and did not decide—whether issues arising under the civil
Mr. Perry replies that Kloeckner endorsed the idea that something called “mixed cases” should go to district court. But that term does not mean what he thinks it means. The phrase “mixed case” appears nowhere in the statute. Instead, it is but “lingo [from] the applicable regulations.” Id., at 50. And even those regulations don‘t say that civil service questions may go to district court. Instead, the regulations use the term “mixed cases” to describe administrative challenges where the employee both “complains of a personnel action serious enough to appeal to [the Board] and alleges that the action was based on discrimination.” Id., at 44 (second emphasis added); see also
“Under
§7703(b)(2) , ‘cases of discrimination subject to [§7702 ]’ shall be filed in district court. Under§7702(a)(1) , the ‘cases of discrimination subject to [§7702 ]’ are mixed cases—those appealable to the [Board] and alleging discrimination. Ergo, mixed cases shall be filed in district court.” 568 U. S., at 50 (some brackets in original; emphasis added).
In context, it seems clear that this passage only seeks to restate the statute, using the term “mixed cases” as shorthand for cases that go to district court under
Now, admittedly, a footnote in Kloeckner did seem to go a step farther and assume Williams’ view that civil service claims may tag along with discrimination claims to district court. Kloeckner, 568 U. S., at 55–56, n. 4. But even by its terms such an assumption wouldn‘t help Mr. Perry, for he isn‘t seeking to pursue a discrimination claim in district court. By his own telling, he is seeking to overturn the Board‘s holding that it lacked jurisdiction to hear his administrative appeal so he might seek relief there in the first instance. And that, of course, raises only a question of civil service law. What‘s more, the footnote‘s discussion about Williams is no more than dicta. The footnote addressed only a policy argument from the government and said that argument failed both under Williams and for other reasons “[i]n any event.” 568 U. S., at 56, n. 4. As near as I can tell, then, Mr. Perry would have us upend a carefully crafted statutory scheme on the strength of a
Notably, even the Court today doesn‘t read Kloeckner as holding that all civil service claims and issues must proceed to district court after a discrimination claim is presented to the Board. Instead, the Court says that result is justified in large measure because it will “best serv[e]” the statute‘s “‘objective of creating an integrated scheme of review[, which] would be seriously undermined’ by ‘parallel litigation.‘” Ante, at 16 (quoting Elgin, 567 U. S., at 14). Yet, the very case the Court quotes for its account about the statute‘s purpose (Elgin which, in turn, quotes Fausto) speaks of Congress’ desire to provide an “integrated scheme of administrative and judicial review” for civil service disputes that “would be seriously undermined” if “employees [had] the right to challenge employing agency actions in district court across the country,” and regional district and circuit courts could pass on such matters. Elgin, supra, at 13–14 (quoting Fausto, 484 U. S., at 445). And, respectfully, the result Elgin and Fausto warned against is exactly the result the Court‘s opinion seems sure to guarantee. Rather than pursue the congressional policy discussed in those cases, the Court seems more nearly headed in the opposite direction.
Beyond its claim about the statute‘s purpose, the Court offers little in the way of a traditional statutory interpre-
Indeed, the only answer the Court supplies to any of the questions raised above lies in a footnote and seems telling. There, the Court instructs that Mr. Perry will not be able to pursue his discrimination claim if the district court agrees with the Board that it lacked jurisdiction over his claim. Ante, at 15, n. 10. But this will surely come as a surprise to Mr. Perry, who tells us he wants to pursue a federal discrimination claim even if it isn‘t one the Board has jurisdiction to hear. And it comes as a surprise to me too, for as I‘ve described and the government concedes, nothing in the statute would prevent Mr. Perry from trying to bring a discrimination claim in district court after seeking to exhaust it before his employing agency. See, e.g., Brief for Petitioner 11, 16–17, 28; Brief for Respondent 25; Tr. of Oral Arg. 17.
At the end of a long day, I just cannot find anything preventing us from applying the statute as written—or heard any good reason for deviating from its terms. Indeed, it‘s not even clear how overhauling the statute as Mr. Perry wishes would advance the efficiency rationale he touts. The only thing that seems sure to follow from accepting his invitation is all the time and money litigants will spend, and all the ink courts will spill, as they work