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News from the Supreme Court: Mixed Case Appeals Clarified

News from the Supreme Court:  In a unanimous decision on December 10, 2012, the Supreme Court clarified the appellate procedures for federal employees appealing adverse actions in cases involving discrimination or EEO reprisal.  The Court's decision in Kloeckner v. Solis568 U.S. ____ (2012), Case No. 11-184, reinstates the "mixed case" appeal process envisaged by Congress:  MSPB cases involving claims of discrimination are appealed to the federal disctrict courts.

The Civil Service Reform Act of 1978 (CSRA) established the present system for adjudicating federal employees' discrimination complaints and appeals from disciplinary actions.  Under the CSRA, employees who suffer an adverse action which may be appealed to the Merit Systems Protection Board (MSPB) but who allege that the adverse action also constitutes discrimination or EEO reprisal--the "mixed case" scenario--may include their EEO claims in their MSPB case without first going through the EEOC process. 

Kloeckner decides the issue of where employees may appeal an MSPB "mixed case."  Under preexisting caselaw, in mixed cases where the MSPB administrative judge issued a merits decision on the discrimination claim, the employee can choose to (A) appeal the MSPB decision with its discrimination count into U.S. District Court, or to (B) appeal to the MSPB's reviewing court--the U.S. Court of Appeals for the Federal Circuit--on the adverse action alone and waive the discrimination claim.

The issue in Kloeckner was what happens when the MSPB decides the employee's mixed case appeal without expressly deciding the discrimination issue (such as by finding a lack of MSPB jurisdiction over the appeal).  The decision below from the U.S. Court of Appeals for the Eighth Circuit held that all such appeals must go to the U.S. Court of Appeals for Federal Circuit.  However, since the MSPB did not conduct a trial nor adjudicate the discrimination claim in that circumstance, the record in that appeals court would be incomplete.  Under the Eighth Circuit's analysis, the Federal Circuit would then have to remand the discrimination claim back to the MSPB to take evidence on the discrimination claim, then refer the case back up to the Federal Circuit to actually decide the discrimination claim.

Writing for the unanimous Supreme Court, Justice Kagan rejected the Eighth Circuit's analysis.  Instead, the Court held that the CSRA clearly vested judicial review on MSPB decisions in mixed cases in the federal district courts, whether or not the MSPB expressly adjudicated the discrimination claim.  In the federal district courts, employees can get a trial by jury on their discrmination claims.

If you are a federal employee facing an adverse action, mixed case or otherwise, and need assistance, you might want to schedule an initial consultation with one of Passman & Kaplan's attorneys.

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