WELA ALERT: SUPREME COURT

Court Will Decide Whether an Employee Should Appeal a Mixed Case the MSPB dismisses for Want of Jurisdiction to the Federal Circuit or the District Court

On January 13, 2017, the Supreme Court granted certiorari in Perry v. MSPB, 829 F.3d 760 (D.C. Cir. 2016). Perry presents an arcane issue of procedure for federal employees. Normally an employee appeals an adverse MSPB decision to the Federal Circuit. However, when the MSPB’s decision is in a “mixed case,” one involving both an adverse action within the MSPB’s jurisdiction and a discrimination claim in violation of certain federal statutes, the employee must seek review in district court. The D.C. Circuit held in Perry that circuit precedent existing prior to Kloeckner v. Solis, 133 S. Ct. 596 (2012) (holding that when MSPB dismissed mixed case appeal on timeliness, review is in district court), required the employee to appeal to the Federal Circuit when the MSPB dismisses the appeal for lack of jurisdiction. Argument is April 17.