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Developments at the MSPB: MSPB Reverses Mixed Case Position

Developments at the MSPB:  On May 30, 2013, the Merit Systems Protection Board issued its precedential decision in Mills v. U.S. Postal Service, 2013 MSPB 40.  Reversing its recent course, the unanimous Board decided to incorporate the Supreme Court's decision in Kloeckner v. Solis into its standard boilerplate appeals notice, in order to direct appellant in mixed cases to appeal to U.S. District Court rather than the Court of Appeals for the Federal Circuit.  

As previously analyzed in detail in this blog, Kloecker clarified that MSPB decisions on 'mixed cases' (appeals of otherwise appealable disciplinary matters where discrimination is alleged as an affirmative defense) are to be appealed to U.S. District Court.  However, both the MSPB and the Federal Circuit have resisted the Supreme Court's Kloeckner rule.  On January 7, 2013, the MSPB issued a split decision on this issue in Cunningham v. Dept. of the Army, 2013 MSPB 7.  The Board majority held that Kloeckner only required notice of appeal rights to U.S. District Court in cases within MSPB jurisdiction in the first intance--and that no such notice was required for Ms. Cunningham since her case was not in MSPB jurisidction (Ms. Cunningham was a probationer), and so her appeals should go to the Federal Circuit.  In dissent, Vice Chair Wagner argued that under Kloecker, all mixed cases should recive appeals notices to U.S. Distict Court, irrespective of whether the MSPB ultimately had jurisdiction.  For its part, the Federal Circuit excluded a category of mixed cases from Kloeckner in Conforto v. MSPB, as previously analyzed in this blog.  

In Mills, the unanimous Board reversed its course from Cunningham, and has now announced its intent to uniformly issue appeals notices in mixed cases indicating that they should be appealed to U.S. District Court rather than the Federal Circuit.  The Board's change in position was spurred by the Federal Circuit's nonprecedential decision in Doe v. Dept. of Justice, No. 2013-3204 (Fed.Cir. May 3, 2013), in which the Federal Circuit transferred the case directly to U.S. District Court pursuant to Kloeckner.  Although Doe is nonprecedential and thus not binding authority at the MSPB, the Board found the reasoning in Doe persuasive and decided to alter its appeals notice text accordingly.  

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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