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General News    H2'ed 4/18/17

Justice Neil Gorsuch takes the bench, hears a federal worker's "mixed-case" complaint.

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Anthony Perry v Merit Systems Protection Board
Anthony Perry v Merit Systems Protection Board
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nday April 17th present and former federal employees lined up to witness the Supreme Court justices open their April session with the case of Anthony Perry, a former Department of Commerce Census Bureau employee and a member of the Coalition For Change, Inc. (C4C).

The Anthony Perry v Merit Systems Protection Board case presented a technical and rather critical question to the Supreme Court about appeals from the Merit Systems Protection Board (MSPB) decisions. The MSPB is an independent, quasi-judicial agency in the executive branch that reviews federal employees' "adverse-action" claims that they were wrongly fired, demoted or suspended. If an employee's adverse-action challenge also involves a claim under the federal anti-discrimination laws, it is referred to as a "mixed" case.

In Perry's underline case, Anthony Perry (an African-American male) who worked as an IT specialist for the Commerce's Census Bureau for almost 30 years, argued that he had a "mixed case." He also asserted that Commerce officials coerced him into a settlement agreement that led to his retirement, and that the notice of proposed removal commerce officials gave him was the product of race, age, disability discrimination, and retaliation.

Rather than hear Perry's claims, the MSPB ultimately ruled that the Board lacked jurisdiction to conduct a hearing on Perry's claim because both the suspension and retirement were "voluntary." MSPB ruled that Perry's retirement resulted from a valid settlement agreement and not a "mixed case" appealable to the Board. Perry, who had been representing himself "pro se" steadfastly, disagrees. The Board never addressed the discrimination claims.

The question the Supreme Court with Gorsuch on the bench must answer is --- Whether an MSPB decision dismissing a mixed case on "jurisdictional grounds" is subject to judicial review in district court or in the U.S. Court of Appeals for the Federal Circuit.

In 2012, in Kloeckner v. Solis, the Supreme Court seemingly acted to answer the question of what the appropriate forum for federal civil-service employees appealing decisions of the MSPB in mixed cases. In Klocekner v Solis the court held unanimously that:

"A federal employee who claims that an agency action appealable to the Merit Systems Protection Board violates an antidiscrimination statute listed in 5 U.S.C. 7702(a)(1) should seek judicial review in district court, rather than the U.S. Court of Appeals for the Federal Circuit, regardless whether the MSPB decided her case on procedural grounds or on the merits."

However, in Perry v. Merit Systems Protection Board, the SCOTUS with Justice Neil Gorsuch on the bench is to decide whether the answer is different from Kloeckner when the MSPB actually rejects an employee's claim for "lack of jurisdiction" because the Board deems the adverse employment action not appealable.

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Tanya Ward Jordan is the author of 17 STEPS: A Federal Employee's Guide For Tackling Workplace Discrimination. She serves as President and Founder of the Coalition For Change, Inc. (C4C). C4C is an proactive non-profit self-help organization (more...)

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