News from the Supreme Court: On June 23, 2017, the Supreme Court issued its decision in Perry v. Merit Systems Protection Board, 582 U.S. ____. The Court clarified the appeals process for "mixed case" appeals before the Merit Systems Protection Board (MSPB) that involve claims of discrimination.
In essence, Perry followed on the Supreme Court's 2012 decision in Kloeckner v. Solis, previously analyzed in this blog. Following Kloeckner, the MSPB and its chief reviewing court (the Court of Appeals for the Federal Circuit) had chipped away at the clear holding of Kloeckner that appeals of MSPB mixed case decisions go to a U.S. district court and not the appellate Federal Circuit, as previously discussed in this blog. In particular, the Federal Circuit in Conforto distinguished "procedural" dismissals from "jurisdictional" dismissals, finding the former going to district court under Kloeckner while the latter remained under Federal Circuit jurisdiction. The D.C. Circuit, in its decision below in Perry, followed Conforto.
In a 7-2 decision, the Supreme Court rejected the Perry/Conforto approach and reinstated the overall holding of Kloeckner that all appeals of MSPB mixed case decisions go to district court. Writing for the majority, Justice Ginsburg rejected the 'jurisdictional-procedural' distinction of Conforto/Perry as unsupported in the statute, just as Court in Kloeckner had rejected a 'merits-procedure' distinction. Justice Ginsburg noted that, so long as the appellant has raised a nonfrivolous allegation of discrimination in the MSPB appeal, the case is a mixed case and should go in its entirely to district court for review, and not be split between district court and the Federal Circuit as required under Conforto.
Writing in dissent, Justice Gorsuch (joined by Justice Thomas) criticized the majority's decision as effecting a revision of the statutory structure that should require new legislation.
The Metropolitan Washington Employment Lawyers Association (MWELA) filed an amicus curiae brief at the Supreme Court in Perry. Co-authors of the MWELA amicus brief included Passman & Kaplan Founding Principal Joseph V. Kaplan, Senior Associate Andrew J. Perlmutter and Associate Erik D. Snyder.