Amicus Brief: Anthony W. Perry v Merit Systems Protection Board

ORAL ARGUMENT NOT YET SCHEDULED

No. 14-1155

United States Court of Appeals for the District of Columbia Circuit

ANTHONY W. PERRY, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent

On Petition for Review of Orders of the Merit Systems Protection Board MSPB Cases MSPB-DC-0752-12-0486-I-1, MSPB-DC-0752-12-0487-I-1,

MSPB-DC-0752-12-0486-B-1, and MSPB-DC-0752-12-0487-B-1

OPENING BRIEF OF COURT-APPOINTED AMICUS CURIAE SUPPORTING PETITIONER

Christopher Landau, P.C. KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Washington, DC 20005 (202) 879-5000 Of Counsel

Rebecca Taibleson Devin S. Anderson KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Washington, DC 20005 (202) 879-5000 Court-Appointed Amicus

February 13, 2015

USCA Case #14-1155 Document #1537552 Filed: 02/13/2015 Page 1 of 61

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to District of Columbia Circuit Rule 28(a)(1), amicus

hereby certifies that:

A. Parties and Amici

Petitioner: Petitioner is Anthony W. Perry.

Respondent: Respondent is the Merit Systems Protection Board.

The Department of Commerce was a party before the Board but has not

intervened in this Court.

Amicus Curiae: Amicus is Rebecca Taibleson of the law firm

Kirkland & Ellis LLP, appointed by order of the Court dated December

18, 2014.

B. Rulings Under Review

Petitioner seeks review of the Decisions and Orders of the Merit

Systems Protection Board, issued June 12, 2013, and August 6, 2014, in

docket numbers MSPB-DC-0752-12-0486-I-1, MSPB-DC-0752-12-0487-

I-1, MSPB-DC-0752-12-0486-B-1, and MSPB-DC-0752-12-0487-B-1. See

JA296-305; JA584-593.

C. Related Cases

Amicus is unaware of any related cases.


ii

/s/ Rebecca Taibleson___ Rebecca Taibleson

February 13, 2015


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TABLE OF CONTENTS Page

INTRODUCTION ...................................................................................... 2

STATEMENT OF JURISDICTION .......................................................... 4

STATEMENT OF THE ISSUES ............................................................... 6

RELEVANT STATUTORY PROVISIONS ............................................... 6

STATEMENT OF THE CASE AND FACTS .......................................... 11

A. Background ........................................................................... 11

B. Procedural History ................................................................ 16

SUMMARY OF ARGUMENT ................................................................. 19

STANDING ............................................................................................. 21

ARGUMENT ........................................................................................... 21

I. This Court Should Transfer Perry’s Appeal To The District Court. .............................................................................................. 21

A. Under The Act, Judicial Review Of Mixed Cases Lies In The District Courts. .......................................................... 22

B. The Same Rule Should Apply When, As Here, The Board Dismisses A Mixed Case On Jurisdictional Grounds. ................................................................................ 26

II. The Board Erroneously Denied Perry A Hearing On His Claim That The Settlement Agreement Was Coerced. ................. 40

A. Non-Frivolous Allegations Of Coercion Entitle An Employee To A Jurisdictional Hearing Before The Board. .................................................................................... 41

B. Perry Made Non-Frivolous Allegations Of Coercion Here. ...................................................................................... 43

CONCLUSION ........................................................................................ 51


iv

TABLE OF AUTHORITIES1 Page(s)

Cases

Ballentine v. MSPB, 738 F.2d 1244 (Fed. Cir. 1984) ................................................. 28, 33

Barnes v. Small, 840 F.2d 972 (D.C. Cir. 1988)......................................................... 40

Bean v. U.S. Postal Service, 120 M.S.P.R. 447 (MSPB 2013) ..................................................... 37

Bell v. Hood, 327 U.S. 678 (1946) ........................................................................ 36

Block v. Pitney Bowes, Inc., 952 F.2d 1450 (D.C. Cir. 1992)....................................................... 44

Boyd v. Dep’t of Transp., 21 Fed. App’x 906 (Fed. Cir. 2001) ................................................. 34

Burns v. Dir., Office of Workers’ Comp. Programs, 41 F.3d 1555 (D.C. Cir. 1994)........................................................... 5

Burzynski v. Cohen, 264 F.3d 611 (6th Cir. 2001) .......................................................... 28

*Conforto v. MSPB, 713 F.3d 1111 (Fed. Cir. 2013) ................... 31, 32, 33, 35, 36, 37, 38

Consol. Edison Co. of N.Y. v. Bodman, 449 F.3d 1254 (D.C. Cir. 2006)......................................................... 5

Covington v. Dep’t of Health & Human Servs., 750 F.2d 937 (Fed. Cir. 1984) ......................................................... 44

1 Authorities upon which amicus chiefly relies are marked with asterisks.


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Crane v. Dep’t of the Air Force, 240 Fed. App’x 415 (Fed. Cir. 2007) ............................................... 46

Davenport v. U.S. Postal Serv., 97 M.S.P.R. 417 (MSPB 2004) ....................................................... 37

Donahue v. U.S. Postal Service, 2006 WL 859448 (E.D. Pa. Mar. 31, 2006) .................................... 37

Downey v. Runyon, 160 F.3d 139 (2d Cir. 1998) ............................................................ 31

Eagle Broad. Grp., Ltd. v. F.C.C., 563 F.3d 543 (D.C. Cir. 2009)......................................................... 44

El Rio Santa Cruz Neighborhood Health Ctr. v. U.S. Dep’t of Health & Human Servs., 396 F.3d 1265 (D.C. Cir. 2005)....................................................... 48

Elgin v. Dep’t of Treasury, 132 S. Ct. 2126 (2012) .............................................................. 25, 38

Fassett v. U.S. Postal Serv., 85 M.S.P.R. 677 (MSPB 2000) ....................................................... 42

Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322 (Fed. Cir. 2006) ..................................... 34, 41, 43, 44

Harms v. IRS, 321 F.3d 1001 (10th Cir. 2003) ...................................................... 31

Hertz Corp. v. Friend, 559 U.S. 77 (2010) .......................................................................... 38

King v. Dep’t of the Army, 570 Fed. App’x 863 (11th Cir. 2014) .............................................. 25

*Kloeckner v. Solis, 133 S.Ct. 596 (2012) .......................................... 20, 22, 25-33, 37, 38

Kloeckner v. Solis, 639 F.3d 834 (8th Cir. 2011) .......................................................... 28


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Marshall v. Dep’t of the Navy, 84 M.S.P.R. 676 (MSPB 2000) ....................................................... 37

*Middleton v. Dep’t of Defense, 185 F.3d 1374 (Fed. Cir. 1999) ..................................... 43, 44, 49, 50

Morall v. Drug Enforcement Admin., 412 F.3d 165 (D.C. Cir. 2005)......................................................... 48

Norris v. S.E.C., 675 F.3d 1349 (Fed. Cir. 2012) ....................................................... 48

Powell v. Dep’t of Defense, 158 F.3d 597 (D.C. Cir. 1998)................................................... 28, 34

Price v. U.S. Postal Serv., 50 M.S.P.R. 107 (MSPB 1991) ....................................................... 35

Rabago v. Dep’t of Army, 25 M.S.P.R. 530 (MSPB 1985) ....................................................... 46

*Schultz v. U.S. Navy, 810 F.2d 1133 (Fed. Cir. 1987) ............................... 42, 43, 46, 47, 48

Shoaf v. Dep’t of Agric., 260 F.3d 1336 (Fed. Cir. 2001) ........................................... 42, 48, 50

Stahl v. MSPB, 83 F.3d 409 (Fed. Cir. 1996) ........................................................... 32

Taylor v. Mabus, 685 F. Supp. 2d 94 (D.D.C. 2010) ................................................... 23

TC Ravenswood, LLC v. FERC, 705 F.3d 474 (D.C. Cir. 2013)......................................................... 21

United States v. Fausto, 484 U. S. 439 (1988) ................................................................. 21, 22

Statutes and Rules

28 U.S.C. § 1631 ........................................................................................ 5


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29 C.F.R. § 1614.302.............................................................. 20, 22, 23, 27

29 C.F.R. pt. 1614, subpt. C .................................................................... 23

29 U.S.C. § 633a ...................................................................................... 40

42 U.S.C. § 12111 .................................................................................... 40

42 U.S.C. § 12117 .................................................................................... 40

42 U.S.C. § 2000e .................................................................................... 39

5 C.F.R. § 1201.157 ................................................................................. 30

5 C.F.R. pt. 1201, subpt. E ...................................................................... 23

5 U.S.C. § 7512 ........................................................................................ 23

5 U.S.C. § 7701 ............................................................................ 22, 23, 41

*5 U.S.C. § 7702 .......................................................... 6, 23, 25, 26, 29, 32

*5 U.S.C. § 7703 ............................... 5, 9, 20, 21, 22, 24, 25, 26, 29, 30, 44


STATEMENT OF IDENTITY, INTEREST IN THE CASE, AND SOURCE OF AUTHORITY TO FILE

Amicus curiae is Rebecca Taibleson of the law firm of Kirkland &

Ellis. By order of the court dated December 18, 2014, the undersigned

was “appointed as amicus curiae to present arguments in favor of

petitioner’s position.”

STATEMENT OF AUTHORSHIP AND FINANCIAL CONTRIBUTIONS

Appointed amicus is the author of the brief. No party, a party’s

counsel, or any other person has contributed money that was intended

to fund preparing or submitting the brief.


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INTRODUCTION

Petitioner Anthony Perry is a career government employee with a

long history of civil service and substantial claims of mistreatment by

his employing agency. In 2011 and 2012, Perry was suspended and

forced to resign from federal employment, for reasons that he claims are

unsubstantiated and discriminatory. Since then, Perry has been

attempting to appeal those adverse employment actions before the

Merit Systems Protection Board (the Board). Unfortunately, Perry’s

claims, like many before them, have become lost in the complicated

maze of administrative and judicial review created by the Civil Service

Reform Act (the Act) for federal employees who, like Perry, allege that

serious personnel actions were motivated by discrimination. In this

petition for review, Perry seeks an opportunity to pursue and develop

his claims in the appropriate forum.

For years, Perry navigated pro se the complicated process of

pursuing his employment claims before the Board. The Board

ultimately dismissed Perry’s claims on jurisdictional grounds, without

holding a hearing on Perry’s most substantial allegations. Perry,

seeking to have his claims heard and attempting, in good faith, to follow


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the Act’s complicated procedures for judicial review, sought review in

this Court.

This case does not, however, belong in the D.C. Circuit. Rather,

the Act instructs that in cases like Perry’s—so called “mixed cases,”

alleging both appealable personnel actions and discrimination—review

of a Board decision lies in the district courts. The Supreme Court

recently and unanimously confirmed that district court review is the

rule for mixed cases regardless of whether the Board reached the merits

of a petitioner’s claims. That straightforward rule should apply equally

to Perry’s case, where the Board dismissed his appeal on jurisdictional

grounds. This Court should therefore transfer Perry’s appeal to the

district court, where he may pursue both his claims of discrimination

and his petition for review of the Board’s decision.

Alternatively, should the Court reach the merits of Perry’s

petition for review, it should vacate the Board’s decision. Perry

advanced substantial allegations that his employing agency threatened

to terminate him without cause and then coerced him into signing a

settlement agreement. Yet the Board dismissed Perry’s appeal without

permitting a hearing on his most significant claims. It reached that


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decision by ignoring Perry’s allegations, and by misreading the limited

evidence on which it did rely. That decision should be vacated.

STATEMENT OF JURISDICTION

This Court’s jurisdiction over the petition for review is in

substantial doubt. On August 21, 2014, immediately after docketing

the petition for review, the Court ordered petitioner to show cause “why

this petition should not be dismissed for lack of jurisdiction or

transferred.” Both Perry and the Board filed submissions in response to

that order, in which Perry argued that this Court has jurisdiction and

the Board argued that the case should be transferred to the Federal

Circuit. On December 18, 2014, this Court discharged the earlier order

to show cause, appointed the undersigned amicus curiae, and ordered

“that the parties, while not otherwise limited, address in their briefs (1)

whether this court has jurisdiction to hear this case under 5 U.S.C.

§ 7703(b)(1)(B); and (2) if not, whether this case should be transferred to

the Federal Circuit or a district court pursuant to 5 U.S.C.

§ 7703(b)(1)(A) or (2).” This brief, joined by Perry, argues that this case

should be transferred to the district court pursuant to 5 U.S.C.

§ 7703(b)(2). See infra Part I. Amicus anticipates that the Board will


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continue to argue that this case should be transferred to the Federal

Circuit pursuant to 5 U.S.C. § 7703(b)(1)(A).

Although no party or amicus now argues that jurisdiction should

ultimately lie in this Court, the Court “has jurisdiction to determine its

jurisdiction” and the power to transfer the case to cure a want of

jurisdiction. Consol. Edison Co. of N.Y. v. Bodman, 449 F.3d 1254, 1257

(D.C. Cir. 2006); see 28 U.S.C. § 1631. And, should the Court determine

that jurisdiction is proper in this Court pursuant to 5 U.S.C.

§ 7703(b)(1)(B), Perry’s petition for review is timely: The Board entered

a final decision on August 6, 2014, JA584, and Perry filed a petition for

review of that decision on August 21, 2014. See 5 U.S.C. § 7703(b)(1)(B)

(“any petition for review shall be filed within 60 days after the Board

issues notice of the final order or decision of the Board”). Both the

Board’s June 12, 2013 remand order and its August 6, 2014 final order

would be before the Court should it assume jurisdiction. See, e.g.,

Burns v. Dir., Office of Workers’ Comp. Programs, 41 F.3d 1555, 1561-62

(D.C. Cir. 1994).


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STATEMENT OF THE ISSUES

1. Whether this Court should transfer Perry’s appeal, which

challenges the Board’s resolution of Perry’s “mixed case,” to the district

court.

2. Whether the Board erred in denying Perry a hearing on his

non-frivolous claim that his adverse personnel actions were unjustified

and his settlement with the agency coerced.

RELEVANT STATUTORY PROVISIONS

5 U.S.C. § 7702 (“Actions Involving Discrimination”) provides in

relevant part:

(a)

(1) Notwithstanding any other provision of law, and except as provided in paragraph (2) of this subsection, in the case of any employee or applicant for employment who—

(A) has been affected by an action which the employee or applicant may appeal to the Merit Systems Protection Board, and

(B) alleges that a basis for the action was discrimination prohibited by—

(i) section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16),

(ii) section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)),


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(iii) section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791),

(iv) sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a), or

(v) any rule, regulation, or policy directive prescribed under any provision of law described in clauses (i) through (iv) of this subparagraph,

the Board shall, within 120 days of the filing of the appeal, decide both the issue of discrimination and the appealable action in accordance with the Board’s appellate procedures under section 7701 of this title and this section.

(2) In any matter before an agency which involves—

(A) any action described in paragraph (1)(A) of this subsection; and

(B) any issue of discrimination prohibited under any provision of law described in paragraph (1)(B) of this subsection;

the agency shall resolve such matter within 120 days. The decision of the agency in any such matter shall be a judicially reviewable action unless the employee appeals the matter to the Board under paragraph (1) of this subsection.

(3) Any decision of the Board under paragraph (1) of this subsection shall be a judicially reviewable action as of—

(A) the date of issuance of the decision if the employee or applicant does not file a petition with the Equal Employment Opportunity Commission under subsection (b)(1) of this section, or

(B) the date the Commission determines not to consider the decision under subsection (b)(2) of this section.


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. . .

(e)

(1) Notwithstanding any other provision of law, if at any time after--

(A) the 120th day following the filing of any matter described in subsection (a)(2) of this section with an agency, there is no judicially reviewable action under this section or an appeal under paragraph (2) of this subsection;

(B) the 120th day following the filing of an appeal with the Board under subsection (a)(1) of this section, there is no judicially reviewable action (unless such action is not as the result of the filing of a petition by the employee under subsection (b)(1) of this section); or

(C) the 180th day following the filing of a petition with the Equal Employment Opportunity Commission under subsection (b)(1) of this section, there is no final agency action under subsection (b), (c), or (d) of this section;

an employee shall be entitled to file a civil action to the same extent and in the same manner as provided in section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(c)), section 15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a(c)), or section 16(b) of the Fair Labor Standards Act of 1938 (29 U.S.C. 216(b)).

(2) If, at any time after the 120th day following the filing of any matter described in subsection (a)(2) of this section with an agency, there is no judicially reviewable action, the employee may appeal the matter to the Board under subsection (a)(1) of this section.

(3) Nothing in this section shall be construed to affect the right to trial de novo under any provision of law


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described in subsection (a)(1) of this section after a judicially reviewable action, including the decision of an agency under subsection (a)(2) of this section.

(f) In any case in which an employee is required to file any action, appeal, or petition under this section and the employee timely files the action, appeal, or petition with an agency other than the agency with which the action, appeal, or petition is to be filed, the employee shall be treated as having timely filed the action, appeal, or petition as of the date it is filed with the proper agency.

5 U.S.C. § 7703 (“Judicial review of decisions of the Merit Systems

Protection Board”) provides in relevant part:

(a)

(1) Any employee or applicant for employment adversely affected or aggrieved by a final order or decision of the Merit Systems Protection Board may obtain judicial review of the order or decision.

(2) The Board shall be named respondent in any proceeding brought pursuant to this subsection, unless the employee or applicant for employment seeks review of a final order or decision on the merits on the underlying personnel action or on a request for attorney fees, in which case the agency responsible for taking the personnel action shall be the respondent.

(b)

(1)

(A) Except as provided in subparagraph (B) and paragraph (2) of this subsection, a petition to review a final order or final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit. Notwithstanding any other provision of law,


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any petition for review shall be filed within 60 days after the Board issues notice of the final order or decision of the Board.

(B) During the 5-year period beginning on the effective date of the Whistleblower Protection Enhancement Act of 2012, a petition to review a final order or final decision of the Board that raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D) shall be filed in the United States Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. Notwithstanding any other provision of law, any petition for review shall be filed within 60 days after the Board issues notice of the final order or decision of the Board.

(2) Cases of discrimination subject to the provisions of section 7702 of this title shall be filed under section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(c)), section 15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a(c)), and section 16(b) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 216(b)), as applicable. Notwithstanding any other provision of law, any such case filed under any such section must be filed within 30 days after the date the individual filing the case received notice of the judicially reviewable action under such section 7702.

(c) In any case filed in the United States Court of Appeals for the Federal Circuit, the court shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be--

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;


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(2) obtained without procedures required by law, rule, or regulation having been followed; or

(3) unsupported by substantial evidence;

except that in the case of discrimination brought under any section referred to in subsection (b)(2) of this section, the employee or applicant shall have the right to have the facts subject to trial de novo by the reviewing court.

. . .

STATEMENT OF THE CASE AND FACTS

A. Background

Anthony Perry devoted his career to the federal civil service,

working for the Government for nearly 30 years. JA31.2 At the U.S.

Census Bureau, where Perry was employed until 2012, he rose to the

level of a GS-14 Information Technology Specialist. JA72. Perry

exercised some supervisory responsibility during his tenure at the

Census Bureau, overseeing other employees or contractors and taking

part in significant projects, and was commended for his efforts. See

JA220-21.

2 Because the Board dismissed Perry’s appeal for lack of jurisdiction without reaching many of his allegations, some of the facts underlying Perry’s petition for review have not yet been adjudicated. Amicus has, accordingly, presented the facts and allegations in a light favorable to Perry. In addition, the record does not suggest any material dispute over the facts recited herein.


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In about 2006, Perry developed osteoarthritis in his lower back

and hip, and began to suffer persistent groin, buttock, and hip pain.

JA35; JA118-19. To manage that pain, Perry took regular breaks from

his desk to walk around. Since approximately 2007, Perry’s supervisor

had provided informal accommodations to Perry, permitting him to take

breaks during normal working hours and to make up missed time or

complete outstanding projects after hours. JA34-35.

Also beginning in 2007, Perry filed a series of Equal Employment

Opportunity actions alleging discrimination at the Census Bureau

based on his race and age, and (later) reprisals based on his pending

discrimination claims. JA162-78; JA195-206; JA222-234. Those

complaints alleged that Perry had been passed over for promotions,

denied training, and received unwarranted performance evaluations as

well as other disparate treatment. See, e.g., JA227. Those claims

remained pending (and actively pursued) in the spring and summer of

2011, when the events that led to this Board appeal transpired. See

JA56.

In April of 2011, Perry’s supervisor, Dale Reed, began requiring

his staff to sign in and out of work using an attendance log. JA52.


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Perry sought an explanation of that new procedure, but received none.

JA66. For the first three weeks the sign-in procedure was in effect,

Perry declined to comply with it. JA52-53. Beginning in May of 2011,

however, Perry received an explanation for the new procedure and

began to use the attendance log as directed. JA52-53; JA66.

In the meantime, Perry was actively pursuing his discrimination

actions, including summary judgment briefing before the Equal

Employment Opportunity Commission (EEOC). JA162-78. He was also

continuing to work under the informal accommodations provided by his

supervisor, taking breaks from his desk to manage his disability. On

June 7, 2011, however, business-as-usual came to a halt for Perry, when

he received a Notice of Proposed Removal from Daren Gutschow, a

Census employee who was not Perry’s direct supervisor. JA43-55. The

Notice proposed to terminate Perry’s employment, alleging that Perry

had been absent during regular, paid working hours on 62 different

occasions between October 5, 2010 and April 21, 2011. JA43-52. Those

absences varied in length, from 31 minutes to, on occasion, full days (9

hours). JA43-52. Based on those alleged absences, the Notice

approximated that Perry had received $8,965 in pay for hours that he


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did not work. JA53. The Notice also relied on Perry’s “failure to follow

[a] supervisory directive” requiring daily completion of an attendance

log on 15 occasions between April 18, 2011 and May 20, 2011. JA52-53.

On June 30, 2011, Perry sent the Census Bureau a letter

responding to its Notice of Proposed Removal. JA65-68. In that letter,

Perry explained that his medical condition required regular breaks, and

that his supervisor had accommodated Perry’s health needs by

permitting a flexible work schedule. Prior to the removal letter, Perry

explained, he had never heard about any “discrepancies” regarding his

time worked, or any problems with his supervisor’s prior

accommodations. JA65-68. Regarding his failure to use the mandatory

attendance log, Perry explained that he began signing in when his

“supervisor explained the reason for it,” and had continued to do so ever

since. JA68. Perry also pointed out that he had over 29 years of service

to the Government, with a “clean disciplinary record.” JA68. In an

effort to resolve the incident amicably, Perry proposed a “settlement,”

under which he would serve a 14-day suspension, repay any hours “the

Agency deems warranted,” and obtain a formal reasonable

accommodation for his disability. JA68.


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In August 2011, after some negotiation, Perry and the agency

entered into a Settlement Agreement. JA15-20. As relevant here, the

Settlement provided that Perry would “retire voluntarily effective no

later than September 4, 2012” and would “serve a suspension for thirty

(30) calendar days.” JA15-16. The Settlement also required Perry to

“waive, release, and forever discharge the Agency” from any claims

raised in each of Perry’s pending discrimination actions, as well as any

claims related to actions taken pursuant to the Settlement. JA17.

Pursuant to the Settlement Agreement, the agency informed the

EEOC that Perry’s pending actions had been resolved, and issued a

formal notice of Perry’s 30-day suspension. JA14; JA56; JA72. Perry

served his suspension on non-consecutive days between August and

October of 2011. JA72-73. In November of 2011, the Census Bureau

formally approved Perry to take frequent breaks from his desk in order

to accommodate his disability, and Perry continued to work at the

Census Bureau under that accommodation. JA123. In the spring of

2012, Perry began to effectuate his retirement, despite explaining to the

agency that he “need[ed] and want[ed] to stay several [more] years.”


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JA69. He ultimately submitted an application for “voluntary early

retirement,” which the agency approved in April of 2012. JA298.

B. Procedural History

After his retirement was effective, Perry filed an appeal with the

Board. JA1-20. Perry alleged that he was subjected to the adverse

employment actions of involuntary retirement and suspension for more

than 14 days. JA3. He argued that the Census Bureau’s proposed

removal notice was the product of race, age, and disability

discrimination as well as retaliation for his prior discrimination

complaints, and also that the agency could not substantiate the charges.

As a result, he alleged that the agency coerced him into signing the

August 2011 settlement agreement. JA5; JA8-9; JA11.

Perry’s appeal was referred to an administrative judge (ALJ), who

issued an order expressing concern that the Board lacked jurisdiction

over the appeal. JA21. In particular, the existence of the settlement

agreement raised a question whether the personnel actions that Perry

was appealing were voluntary and therefore outside of the Board’s

jurisdiction. JA25-28. The order noted that the Board would

nevertheless exercise jurisdiction over an employment action taken


17

pursuant to a settlement agreement if the petitioner could establish

that the settlement was involuntary. JA26-27. Consequently, the ALJ

ordered Perry “to file evidence and/or argument amounting to a non-

frivolous allegation” that his claims were “within the Board’s

jurisdiction.” JA24. Should Perry produce such allegations, the ALJ

would conduct a hearing to evaluate his jurisdictional claims. JA24.

In response to the ALJ’s order, Perry described in detail a number

of reasons why the settlement agreement and subsequent employment

actions were involuntary, and submitted almost two hundred pages of

supporting evidence. JA30-234. Perry principally argued that the

agency had no basis for the charge of receiving pay for time not worked

because he was working pursuant to a schedule that his supervisors

had approved, JA31-37, that the agency misrepresented the terms of

the settlement agreement by failing to inform him of his appeal rights,

JA30, JA36, and that the agency’s coercive tactics were the product of

discrimination and retaliation for Perry’s prior complaints, JA30-32,

JA34-37.

Without holding a hearing on Perry’s claims, the ALJ issued a

decision dismissing his appeal for lack of jurisdiction. JA259-66. The


18

judge concluded that both the 30-day suspension and retirement were

voluntary because they resulted from a settlement agreement that had

not been coerced, and that the Board therefore lacked jurisdiction to

review them. JA261-63. Perry petitioned the Board to review the ALJ’s

decision.

The Board granted the petition, affirmed the ALJ in large part,

and remanded one issue for further adjudication. JA296-305.

Specifically, the Board found frivolous Perry’s allegations that the

agency coerced him into signing the settlement by pursuing an

employment action the agency knew it could not substantiate. JA300-

01. The Board found that Perry was, however, entitled to a

jurisdictional hearing on his non-frivolous claim that the settlement

agreement was involuntary because the agency misrepresented Perry’s

right to appeal any effectuated removal. JA301-02. Because the ALJ

had not held a jurisdictional hearing and Perry had not waived his right

to one, the Board sent that misrepresentation claim back for a hearing.

JA302-05.

On remand, the ALJ heard testimony and received evidence on

whether “the agency provided the appellant with misinformation upon


19

which he detrimentally relied in signing the settlement agreement

(namely, that he would not otherwise have appeal rights).” JA474

(internal quotation marks omitted). After the hearing, the ALJ

concluded that the agency did not engage in fraud or make

misrepresentations to Perry regarding his appeal rights in connection

with the proposed removal and settlement negotiations, and dismissed

the appeal. JA489-93.

Perry again petitioned the Board for review. JA489-549. This

time, the Board agreed that Perry failed to establish that the agency

misled him about his appeal rights, and therefore affirmed the ALJ’s

decision dismissing Perry’s case. JA584, 588-90. The Board declined to

revisit issues previously decided in its initial remand order or presented

for the first time on appeal. JA587-88. The Board also rejected Perry’s

arguments that the ALJ erroneously denied discovery and exhibited

bias. JA590-92.

Perry thereafter filed a petition for review in this Court.

SUMMARY OF ARGUMENT

As an initial matter, this Court lacks jurisdiction over Perry’s

appeal and should transfer his case to the district court. Before the


20

Board, Perry alleged a classic “mixed case”: he both complained of a

personnel action serious enough to appeal to the Board, and alleged

that the action was based, at least in part, on discrimination. See 29

C.F.R. § 1614.302. Under the Act, judicial review of mixed cases lies in

the district courts. See 5 U.S.C. § 7703(b)(2). And as the Supreme

Court recently confirmed, that rule applies regardless of whether the

Board reached the merits of a petitioner’s claims. Kloeckner v. Solis,

133 S. Ct. 596, 607 (2012). That straightforward rule should be the

beginning and end of the threshold jurisdictional question here.

Alternatively, should this Court assert jurisdiction over this

appeal and reach the merits, it should vacate and remand the Board’s

decision. Because Perry advanced non-frivolous allegations that the

Census Bureau could not substantiate the charges against him and

thereby coerced him into a settlement agreement, he was entitled to a

hearing before the Board. In denying Perry that hearing, the Board

entirely ignored many of Perry’s allegations, and misread the evidence

it did consider. That decision should not stand.


21

STANDING

Perry has both statutory and constitutional standing to challenge

the Board’s orders. The Act provides that “[a]ny employee … adversely

affected or aggrieved by a final order or decision of the Merit Systems

Protection Board may obtain judicial review of the order or decision.” 5

U.S.C. § 7703(a)(1). Perry is “adversely affected or aggrieved” because

the Board declined to review his appeal of adverse personnel actions.

Because the Board’s orders therefore inflict an injury on Perry that can

be redressed by this Court, he has standing to challenge them here.

See, e.g., TC Ravenswood, LLC v. FERC, 705 F.3d 474, 476-77 (D.C. Cir.

2013).

ARGUMENT

I. This Court Should Transfer Perry’s Appeal To The District Court.

The Civil Service Reform Act of 1978 (the Act) “established a

comprehensive system for reviewing personnel action taken against

federal employees.” United States v. Fausto, 484 U. S. 439, 455 (1988).

That complex system prescribes “the protections and remedies

applicable to such action, including the availability of administrative

and judicial review,” which vary based on the type of personnel action


22

at issue, the type of employee affected, and the nature of the employee’s

allegations. Id. at 443. One aspect of the Act’s complicated scheme is,

however, relatively straightforward: When a federal employee

complains of a personnel action serious enough to appeal to the Board,

and alleges that the action was based, at least in part, on

discrimination, that employee has brought a “mixed case.” See 29

C.F.R. § 1614.302(a). And when the Board issues a decision in a mixed

case, judicial review lies in the district courts. See 5 U.S.C. § 7703(b)(2);

Kloeckner, 133 S. Ct. at 607. Under that rule, this case should be

transferred to the district court.

A. Under The Act, Judicial Review Of Mixed Cases Lies In The District Courts.

In the Act, Congress created a tiered system of “graduated

procedural protections” for federal employees based on the seriousness

of the personnel action at issue. Kloeckner, 133 S. Ct. at 600.

Employees affected by more serious personnel actions—termed “adverse

actions”—may appeal those actions directly to the Board, an

independent agency that adjudicates federal employment disputes. Id.;

see 5 U.S.C. § 7701. Those actions include “(1) a removal; (2) a


23

suspension for more than 14 days; (3) a reduction in grade; (4) a

reduction in pay; and (5) a furlough of 30 days or less.” 5 U.S.C. § 7512.

An employee affected by an adverse action may allege that his

employing agency lacked a sufficient basis to impose it. See id.

§ 7701(c). Alternatively, or in addition, the employee might also allege

that the adverse action was motivated by discrimination, in violation of

Title VII, the Age Discrimination in Employment Act, the

Rehabilitation Act, or the Fair Labor Standards Act. See id.

§ 7702(a)(1). In those circumstances, when an employee “alleges that

an appealable agency action was effected, in whole or in part, because of

discrimination on the basis of race, color, religion, sex, national origin,

disability, age, or genetic information,” he has filed a “mixed case

appeal.” 29 C.F.R. § 1614.302(a).

The Act, and regulations promulgated by the Board and EEOC,

set forth distinct procedures for processing mixed case appeals. Those

procedures are notoriously complex, and they create several alternative

paths for employees to obtain administrative and judicial review. See 5

U.S.C. § 7702; 5 C.F.R. pt. 1201, subpt. E; 29 C.F.R. pt. 1614, subpt. C;

see, e.g., Taylor v. Mabus, 685 F. Supp. 2d 94, 97 (D.D.C. 2010) (“courts


24

bestow labels such as ‘byzantine’ and ‘extremely complicated’ on this

statutory and regulatory framework”). Fortunately, only one aspect of

those procedures is at issue here: judicial review of the Board’s

decisions in mixed appeals.

There are multiple routes for an employee’s mixed case to reach

the Board. Once it is there, however, the Act provides one forum for

judicial review of a Board decision: the district court. “Any employee …

adversely affected or aggrieved by a final order or decision of the Merit

Systems Protection Board may obtain judicial review of the order or

decision.” 5 U.S.C. § 7703(a)(1). While judicial review of Board

decisions generally lies in the Federal Circuit, § 7703 of the Act creates

two exceptions to that rule, one of which applies here:

Cases of discrimination subject to the provisions of section 7702 of this title shall be filed under section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(c)), section 15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a(c)), and section 16(b) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 216(b)), as applicable.


25

Id. § 7703(b)(2). The enforcement provisions of the antidiscrimination

statutes listed in § 7703(b)(2) each “authorizes an action in federal

district court.” Elgin v. Dep’t of Treasury, 132 S. Ct. 2126, 2134 (2012).3

Section 7702, in turn, describes the “cases of discrimination”

referenced in § 7703(b)(2) and subject to review in the district courts.

Specifically, § 7702(a)(1) refers to cases in which an employee “(A) has

been affected by an action which the employee … may appeal to the

Merit Systems Protection Board, and (B) alleges that a basis for the

action was discrimination prohibited by [Title VII, the Fair Labor

Standards Act, the Rehabilitation Act, or the Age Discrimination in

Employment Act].” The “cases of discrimination” described in § 7702,

and sent to the district court by § 7703(b)(2), “in other words, are mixed

cases, in which an employee challenges as discriminatory a personnel

action appealable to the [Board].” Kloeckner, 133 S. Ct. at 602.

3 The other exception to Federal Circuit jurisdiction, known as “All Circuit Review,” is found at 5 U.S.C. § 7703(b)(1)(B). That provision applies to appeals in which the only challenged issue is the Board’s disposition of whistleblowing allegations. See King v. Dep’t of the Army, 570 Fed. App’x 863, 865 (11th Cir. 2014). Although Perry originally invoked that provision to support this Court’s jurisdiction over his petition, the administrative record indicates that, in fact, Perry’s claims go beyond pure whistleblowing allegations.


26

Together, sections 7702 and 7703 thus establish one

straightforward aspect of the Act’s otherwise complex scheme: “Under

§ 7703(b)(2), ‘cases of discrimination subject to [§ 7702]’ shall be filed in

district court. Under § 7702(a)(1), the ‘cases of discrimination subject to

[§ 7702]’ are mixed cases—those appealable to the [Board] and alleging

discrimination.” Kloeckner, 133 S. Ct. at 604. As a result, a “federal

employee who claims that an agency action appealable to the [Board]

violates an antidiscrimination statute listed in § 7702(a)(1) should seek

judicial review in district court, not in the Federal Circuit.” Id. at 607.

B. The Same Rule Should Apply When, As Here, The Board Dismisses A Mixed Case On Jurisdictional Grounds.

In this case, it is undisputed that Perry “claims that an agency

action appealable to the [Board] violates an antidiscrimination statute

listed in § 7702(a)(1).” Id. The personnel actions that Perry seeks to

challenge are his “involuntary retirement” and “suspension for more

than 14 days,” both of which fall within the category of Board-

appealable actions. See JA3. And as the Board explained in its

preliminary filing in this Court, “the petitioner’s initial appeal [to the

Board] states on multiple occasions that he believes the adverse actions


27

were made due to his race, age, and disability.” Oct. 2, 2014 Resp.’s

Reply to Order to Show Cause at 3-4; see also, e.g., JA31 (“I was …

discriminated against on the basis of my disability … and on the basis

of race, age … and coerced to sign the EEOC Settlement Agreement

which included my forced and involuntary retirement [and] 30-day

suspension ….”). Because Perry plainly “alleges that an appealable

agency action was effected, in whole or in part, because of

discrimination on the basis of race, color, religion, sex, national origin,

disability, age, or genetic information,” he has filed a “mixed case

appeal.” 29 C.F.R. § 1614.302(a). And under the Act, judicial review of

Board decisions in mixed case appeals lies in the district court.

The Board did not, of course, issue a decision on the merits of

Perry’s discrimination claims. Instead, the Board dismissed Perry’s

appeal on threshold jurisdictional grounds. JA584-92. In its

preliminary filing to this Court, the Board argues that, as a result,

further judicial review of Perry’s case is available only in the Federal

Circuit, and not a district court. Oct. 2, 2014 Resp.’s Reply to Order to

Show Cause at 2. That position, however, is inconsistent with the text

of the Act and with the Supreme Court’s recent decision in Kloeckner.


28

Until 2012, a majority of circuits—including this one—would have

agreed with the Board, holding that the Federal Circuit has exclusive

jurisdiction to review the Board’s threshold, non-merits determinations

in mixed cases like Perry’s. See, e.g., Kloeckner v. Solis, 639 F.3d 834,

838 (8th Cir. 2011), rev’d and remanded, 133 S. Ct. 596 (2012);

Burzynski v. Cohen, 264 F.3d 611, 620-21 (6th Cir. 2001); Powell v.

Dep’t of Defense, 158 F.3d 597, 598-99 (D.C. Cir. 1998); Ballentine v.

MSPB, 738 F.2d 1244, 1246 (Fed. Cir. 1984). Those courts largely

followed the Federal Circuit’s decision in Ballentine, which held that

“until the merits of a ‘mixed’ discrimination case are reached by the

[Board], procedural or threshold matters, not related to the merits of a

discrimination claim before the [Board], may properly be appealed to

this court.” 738 F.2d at 1247; see, e.g., Kloeckner, 639 F.3d at 838

(applying Ballentine to hold that Board ruling on procedural grounds is

appealable only to the Federal Circuit); Powell, 158 F.3d at 598-600

(applying Ballentine to hold that Board ruling on jurisdictional grounds

is appealable only to the Federal Circuit).

In Kloeckner, however, the Supreme Court unanimously reversed

that line of cases. 133 S. Ct. 596. Based on a straightforward


29

application of sections 7702 and 7703, Kloeckner held that mixed cases

should be filed in district court regardless of whether the Board reaches

any issues of discrimination on the merits: The Act routes mixed cases,

“in crystalline fashion, to district court,” 133 S. Ct. at 604, and “[t]hat is

so whether the [Board] decided [a] case on procedural grounds or

instead on the merits,” id. at 607. Kloeckner squarely rejected the

Government’s argument that the Act directs only the Board’s merits

decisions to the district court, concluding that “the merits-procedure

distinction is a contrivance, found nowhere in the statute’s provisions

on judicial review.” Id. at 604.

Kloeckner concerned a Board decision on threshold procedural

grounds (in that case, timeliness), and did not explicitly address Board

decisions on threshold jurisdictional grounds (like the one below).

But—as both the petitioner and the Government in Kloeckner agreed—

the same rule should apply regardless of whether the Board resolves a

mixed case on jurisdictional grounds or procedural ones. See Resp’t Br.

in Opp’n at 15, Kloeckner, 133 S. Ct. 596; Rep. Br. for Pet’r at 2,

Kloeckner, 133 S. Ct. 596. Under Kloeckner, that rule is clear: The Act


30

directs all mixed cases to the district courts, regardless of the content of

the Board’s decision. 5 U.S.C. § 7703(b)(2).

As a textual matter, none of the Act’s provisions on judicial review

of mixed cases draws any distinction between merits-based rulings,

procedural rulings, and jurisdictional rulings. As the Supreme Court

observed, “[i]f Congress had wanted to send merits decisions to district

court and procedural dismissals to the Federal Circuit, it could have

just said so.” Kloeckner, 133 S. Ct. at 605. But it did not “say so,” for

either procedural or jurisdictional dismissals. Nor do the Board

regulations governing the processing of mixed cases, which provide only

that an employee may “file a civil action in an appropriate United

States district court” after “[a]ny final decision” in a mixed case unless

the employee explicitly “elects to waive the discrimination issue.” 5

C.F.R. § 1201.157 (emphasis added). Thus nothing in the Act’s text or

implementing regulations suggests an exception to Kloeckner’s rule for

the Board’s jurisdictional decisions.

Notwithstanding the plain language of the Act and of Kloeckner, a

divided panel of the Federal Circuit recently ruled that it retains

exclusive jurisdiction to review the Board’s jurisdictional dismissals in


31

mixed cases. Conforto v. MSPB, 713 F.3d 1111 (Fed. Cir. 2013). That

decision turned on the Federal Circuit’s analysis of § 7702(a)(1), which

defines the “cases of discrimination” that § 7703(b)(2), in turn, sends to

district court. 713 F.3d at 1118. According to Conforto, when the Board

decides it lacks jurisdiction over an employee’s case, that means the

employee has not in fact “been affected by an action which the employee

… may appeal to the Merit Systems Protection Board,” which is the

first half of § 7702(a)(1)’s definition of mixed cases. Id. And because

the Board has decided the case is not “mixed” after all under

§ 7702(a)(1), the district-court review provision of § 7703(b)(2) never

kicks in, and the Federal Circuit retains exclusive jurisdiction to review

the Board’s decision. See id.4

That reading of the Act does not withstand scrutiny, especially in

light of Kloeckner. As Judge Dyk pointed out in dissent, Conforto’s

4 Conforto found support for this analysis in two pre-Kloeckner decisions from the Second and Tenth Circuits, which similarly concluded that jurisdictional dismissals of mixed cases are appealable only to the Federal Circuit. See Harms v. IRS, 321 F.3d 1001, 1008 (10th Cir. 2003); Downey v. Runyon, 160 F.3d 139, 146 (2d Cir. 1998). The reasoning of those cases does not differ materially from the reasoning in Conforto, and, for the same reasons Conforto is wrong under Kloeckner, Harms and Downey have been abrogated by Kloeckner.


32

reading of § 7702(a)(1) “would equally give [the Federal Circuit]

jurisdiction to review procedural issues in mixed cases,” a result that

directly contradicts Kloeckner. 713 F.3d at 1124 (Dyk, J., dissenting).

That is because an employee who violates the Board’s procedural

rules—for example, by filing an untimely appeal—also may not “appeal

to the Merit Systems Protection Board” as required by § 7702(a)(1).

See, e.g., Stahl v. MSPB, 83 F.3d 409, 412-13 (Fed. Cir. 1996)

(employee’s untimely claim that removal was based on discrimination

not appealable to the Board under § 7702(a)). As a result, a dismissal

on procedural grounds could also imply that the case is not “mixed”

after all under § 7702(a)(1), meaning that the district-court review

provision of § 7703(b)(2) would never kick in and judicial review would

lie exclusively in the Federal Circuit. Of course, that is the rule

Kloeckner explicitly rejected. By logical extension, Kloeckner thus

necessarily rejected Conforto’s reading of § 7702(a)(1). Because the

statutory text does not actually differentiate between jurisdictional and

procedural dismissals, Conforto’s attempt to conjure such a distinction

is ultimately irreconcilable with Kloeckner’s reading of the Act.


33

Nor does Conforto’s rule further the purposes or improve the

operation of the Act’s scheme for judicial review. As the Government

argued in Kloeckner, often the “distinction between procedural [Board]

dismissals (reviewable in district court) and jurisdictional [Board]

dismissals (reviewable only in the Federal Circuit) is ‘difficult and

unpredictable.’” Resp’t Br. in Opp’n at 15, Kloeckner, 133 S. Ct. 596; see

also Conforto, 713 F.3d at 1124 (Dyk, J., dissenting). Ballentine, for

example, involved a “jurisdictional” time-bar that prevented an

employee from appealing to the Board. See 738 F.2d at 1248 (“the

[Board] held that it lacked jurisdiction … because he had not waited to

file his appeal at the [Board] until” the appropriate time). Kloeckner, by

comparison, involved a “procedural” time-bar that prevented an

employee from appealing to the Board. See 133 S. Ct. at 603 (Board

“dismissed Kloeckner’s appeal as untimely” for missing the Board’s

filing deadline). There is no practical difference between those two

types of Board rulings, and it would make little sense for an employee

to appeal the former to the Federal Circuit but the latter to the district

court. Yet that is what Conforto’s rule requires.


34

When jurisdictional and procedural dismissals of mixed cases do

differ, the Board’s jurisdictional dismissals more closely resemble the

merits-based decisions that everyone agrees should be appealed to

district court. In that respect, the case for district-court review of

jurisdictional dismissals is even stronger than for the procedural

dismissals considered in Kloecker. This case presents an example: As it

did below, the Board frequently evaluates its own jurisdiction when

there is some dispute over whether the adverse personnel actions were

in fact voluntary, rather than coerced—so-called “constructive adverse

action” cases. See Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322,

1324 (Fed. Cir. 2006) (en banc). In those cases, the employee must

“prove that the action was involuntary” (through allegations and a

hearing) before the Board can assume jurisdiction. Id. at 1325. As a

consequence, the Board’s analysis of its own jurisdiction often overlaps

with the merits of the employee’s claim that a personnel action was

coerced by discrimination or otherwise involuntary. See, e.g., Boyd v.

Dep’t of Transp., 21 Fed. App’x 906, 909 (Fed. Cir. 2001) (reviewing

Board jurisdictional decision that turned on whether allegations of

hostile work environment were non-frivolous); Powell, 158 F.3d at 599


35

(noting that “evidence of voluntariness or constructive termination [may

be] more closely ‘related to the merits of a discrimination claim’”); Price

v. U.S. Postal Serv., 50 M.S.P.R. 107, 110 (MSPB 1991) (noting that the

Board may “make an initial determination on a claim of prohibited

discrimination where … that claim is asserted as the sole cause of an

involuntary action, and thereby determine Board jurisdiction”). If

Conforto was correct, those Board decisions—technically called

“jurisdictional,” but in fact analyzing the merits of an employee’s

claims—would be reviewed by the Federal Circuit, rather than the

district court. “This anomalous approach turns Congress’ clear intent

on its head, requiring that [the Federal Circuit] address the type of fact-

intensive inquiries into matters such as voluntariness and

discrimination, for which Congress specifically found review in district

courts ‘more appropriate.’” Conforto, 713 F.3d at 1127 (Dyk, J.,

dissenting) (quoting S. Rep. No. 95–969, at 63 (1978), 1978

U.S.C.C.A.N. 2723).

Indeed, it would be unconventional (to say the least) if the forum

for judicial review of an employee’s case turned on the success or failure

of his substantive claims, even if the Board’s decision is couched in


36

jurisdictional terms. In this case, for example, the Board found it

lacked jurisdiction because Perry failed to produce sufficient evidence or

allegations to demonstrate that his resignation and suspension were

coerced. In substance, that looks very much like a decision “on the

merits,” and in fact Perry could have prevailed “on the merits” had the

Board reached the opposite conclusion. Yet under Conforto, the Board’s

rejection of Perry’s claims changes the forum for further judicial review,

routing his case to the Federal Circuit rather than the district court.

That system makes little sense under the Act, and would be a

substantial departure from the normal understanding of federal

jurisdiction. See, e.g., Bell v. Hood, 327 U.S. 678, 682 (1946) (federal

courts’ jurisdiction “is not defeated … by the possibility that the

averments might fail to state a cause of action on which the petitioners

could actually recover”).

Finally, Conforto’s rule—that the district courts lose the power to

review mixed cases when the Board dismisses those cases on

jurisdictional grounds—also creates a host of practical problems in

determining which court should review any given mixed case. What

happens, for example, when the Board rules on alternative grounds, one


37

of which is jurisdictional and another is either procedural or merits-

based? See, e.g., Davenport v. U.S. Postal Serv., 97 M.S.P.R. 417, 417

(MSPB 2004) (dismissing “for lack of jurisdiction and as untimely

filed”). Or what if the Board, addressing a case that encompasses

multiple claims, dismisses one claim on jurisdictional grounds and

another for procedural or merits-based reasons? See, e.g., Donahue v.

U.S. Postal Service, 2006 WL 859448, at *1 (E.D. Pa. Mar. 31, 2006)

(Board rejected related claims for lack of jurisdiction, on the merits, and

based on res judicata); Marshall v. Dep’t of the Navy, 84 M.S.P.R. 676,

677-78 (MSPB 2000) (dismissing some allegations as waived, others as

abandoned, others as untimely, and others for lack of jurisdiction). If

one applies both Kloeckner and Conforto, it is unclear whether further

judicial review of such cases lies in the district court or the Federal

Circuit. Indeed, the Board has applied Conforto to find that mixed

appeals should go to the Federal Circuit even when the Board dismisses

on procedural grounds without reaching a jurisdictional question at all.

Bean v. U.S. Postal Service, 120 M.S.P.R. 447, 450-52 (MSPB 2013).

That result—which is plainly contrary to Kloeckner—reflects the


38

confusion created by Conforto’s artificial distinction between procedural

and jurisdictional rulings.

Conforto thus reintroduces the complexity surrounding judicial

review of mixed appeals that Kloeckner swept away. Under the Act’s

plain text and a fair application of Kloeckner, however, the rule is clear:

Judicial review of all mixed cases lies in the district courts, regardless

of how the Board resolves them. That rule provides “clear guidance

about the proper forum for [an] employee’s claims at the outset of the

case,” and does not turn on “amorphous distinctions” like those adopted

in Conforto. Elgin, 132 S. Ct. at 2135-36. That clarity is itself a reason

to eschew Conforto, as “administrative simplicity is a major virtue in a

jurisdictional statute.” Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010).

“Complex jurisdictional tests complicate a case, eating up time and

money as the parties litigate, not the merits of their claims, but which

court is the right court to decide those claims.” Id. That is especially

problematic in this context, where many petitioners (like Perry) proceed

pro se. Rather than puzzling over jurisdiction, litigants like Perry

should be able to simply and predictably obtain judicial review of their

mixed claims.


39

Because it is undisputed that Perry alleged a mixed case before

the Board, his appeal should be transferred to the district court. Perry

worked with the Business Planning Staff in the LAN Technology

Support Office of the U.S. Census Bureau in Suitland, Maryland, and

alleges that he suffered discrimination there. See, e.g., JA340. In

addition, it appears that key adverse employment actions—specifically,

the proposed removal and suspension notice—were initiated at the

main Department of Commerce office in Washington, D.C., and Perry’s

employment records may be located there. See JA43 (Notice of

Proposed Removal from Department of Commerce in Washington, D.C.);

JA54 (directing any response to Notice of Proposed Removal to Census

Bureau office in Washington, D.C.); JA72 (Proposed Removal Decision

and suspension notice issued from Washington, D.C.). Under the venue

provisions of the anti-discrimination statutes at issue here, either the

District of Maryland or the District of D.C. would be an appropriate

forum for Perry’s case. See 42 U.S.C. § 2000e-5(f)(3) (“Such an action

may be brought in any judicial district in the State in which the

unlawful employment practice is alleged to have been committed, in the

judicial district in which the employment records relevant to such


40

practice are maintained and administered, or in the judicial district in

which the aggrieved person would have worked but for the alleged

unlawful employment practice . . . .”).5 In the district court, Perry could

both seek review of the Board’s decision and attempt to pursue his

discrimination claims, which is precisely the system Congress intended

for mixed cases. See Barnes v. Small, 840 F.2d 972, 978-79 (D.C. Cir.

1988) (describing district court review in mixed cases appealed from the

Board).

II. The Board Erroneously Denied Perry A Hearing On His Claim That The Settlement Agreement Was Coerced.

Should this Court nevertheless conclude that it has jurisdiction

over Perry’s petition for review, the Court should vacate the Board’s

decision and remand for the Board to conduct a hearing on Perry’s claim

that his retirement and suspension were involuntary. Perry made non-

frivolous allegations that the Census Bureau knew or should have

5 See also 29 U.S.C. § 633a (authorizing a civil action by a federal employee alleging age discrimination “in any Federal district court of competent jurisdiction”); id. § 791(f) (adopting standards of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12111 et seq., for federal employee Rehabilitation Act claims); 42 U.S.C. § 12117(a) (adopting “powers, remedies, and procedures” set forth in “section[] . . . 2000e-5 . . . of this title” for “any person alleging discrimination on the basis of disability”).


41

known that its Notice of Proposed Removal was unsubstantiated, and

he produced evidence to the same effect. That showing entitled Perry to

a hearing on his allegation that the Settlement Agreement was, as a

result, coerced. The Board’s contrary conclusion should be set aside.6

A. Non-Frivolous Allegations Of Coercion Entitle An Employee To A Jurisdictional Hearing Before The Board.

As described above, Congress vested the Board with the authority

“to adjudicate appeals of adverse personnel actions taken by a federal

agency against its employees.” Garcia, 437 F.3d at 1327; see 5 U.S.C.

§ 7701(a). Voluntary actions, such as retirement or an action taken

pursuant to a settlement agreement, do not fall under the Board’s

jurisdiction. Garcia, 437 F.3d at 1328. A “facially voluntary action by

the employee may actually be involuntary,” however, if coerced by the

agency. Id. at 1324; see, e.g., id. (“For example, although a resignation

6 Perry also maintains that the Board erroneously rejected his contention that the settlement agreement was involuntary because it was based on misinformation, that the Board erroneously rejected Perry’s claim that the the administrative judge exhibited bias toward Perry, and that the settlement contained an unlawful gag order. Appointed amicus does not represent Perry, and the arguments herein do not necessarily capture all the claims Perry would make should he proceed in an alternate forum (such as the district court or Federal Circuit).


42

is ostensibly a voluntary separation from employment, it is possible

that an employee can be coerced into resigning by actions of the

employing agency.”); Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1340-41

(Fed. Cir. 2001).

Coercion can take on a number of forms, and one is particularly

relevant here: if “an employee can show that the agency knew that the

reason for the threatened removal could not be substantiated, the

threatened action by the agency is purely coercive.” Schultz v. U.S.

Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987). That rule applies with

equal force to personnel actions taken pursuant to a settlement

agreement. Thus, the Board will consider a settlement involuntary if

the agency “knew or should have known” that the proposed personnel

action precipitating the settlement “could not be substantiated.”

Fassett v. U.S. Postal Serv., 85 M.S.P.R. 677, 680 (MSPB 2000) (setting

aside settlement where the “agency should have known that the

appellant’s removal based on this charge could not be substantiated”).

With the coerced settlement set aside, the Board can exercise

jurisdiction over the relevant employment action.


43

Perry invoked that doctrine here, repeatedly alleging that “the

agency knew that the reason for the threatened removal [which led to

his settlement agreement] could not be substantiated” and that, as a

result, his suspension and resignation were involuntary and subject to

the Board’s jurisdiction. Schultz, 810 F.2d at 1136. Under settled

precedent, those allegations, if “non-frivolous,” should have earned

Perry a hearing to establish the Board’s jurisdiction: “[O]nce a claimant

makes non-frivolous claims of Board jurisdiction, . . . then the claimant

has a right to a hearing.” Garcia, 437 F.3d at 1344. “All relevant non-

frivolous allegations, including background facts, . . . must be viewed as

a whole” in determining whether a petitioner has made such a showing.

Middleton v. Dep’t of Defense, 185 F.3d 1374, 1380 (Fed. Cir. 1999).

B. Perry Made Non-Frivolous Allegations Of Coercion Here.

Here, however, the Board denied Perry a hearing on his most

substantial claims of Board jurisdiction, finding that his “claim that the

agency knew it could not substantiate his proposed removal does not

constitute a nonfrivolous allegation of coercion.” JA300. That decision

ignored the bulk of Perry’s allegations and evidence, and should be

vacated.


44

In reviewing the Board’s decisions, a court must “set aside any

agency action, findings, or conclusions found to be . . . (1) arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with

law; (2) obtained without procedures required by law, rule, or regulation

having been followed; or (3) unsupported by substantial evidence.” 5

U.S.C. § 7703(c); see also id. § 706. The right to a hearing on non-

frivolous allegations of jurisdiction is a “procedure required by law.”

Garcia, 437 F.3d at 1345; see also Covington v. Dep’t of Health &

Human Servs., 750 F.2d 937, 943 (Fed. Cir. 1984). The Federal Circuit

has, in the past, reviewed the Board’s decision not to hold such a

hearing for abuse of discretion. See Middleton, 185 F.3d at 1380. 7

The Board abused its discretion here. Throughout the proceedings

below, Perry maintained that the Census Bureau knew it could not

substantiate its allegations that he had received pay for time not

worked, which was the chief basis for Perry’s proposed removal. See,

7 In this context, the difference between review for “abuse of discretion” and “arbitrary and capricious” review is largely semantic. See, e.g., Eagle Broad. Grp., Ltd. v. F.C.C., 563 F.3d 543, 551 (D.C. Cir. 2009) (“the courts rarely draw any meaningful distinctions between acts that are arbitrary, capricious, or an abuse of discretion”) (internal quotation marks omitted); Block v. Pitney Bowes, Inc., 952 F.2d 1450, 1454 (D.C. Cir. 1992) (R.B. Ginsburg, J.) (same).


45

e.g., JA32-34; JA271-78. And he produced evidence to support that

allegation, including documents and claims indicating the following:

• 31 of the hours Perry was charged with not working were attributable to his supervisor’s policy to have one-hour lunches, and therefore constituted “legally allowable break-time every employee receives.” JA33-34; see JA125 (email from supervisor noting that lunch break is “one hour”); cf. JA43 (proposed removal noting that agency believed Perry’s schedule included “a 30-minute non-paid lunch period mid-day”).

• Perry did substantial work from home outside normal working hours. See JA126 (email referring to “at least 40 hours working on” a project “at home”); JA128-60 (emails showing Perry working after normal office hours). Indeed, Perry calculated “more than 158 hours worked outside of the official 7:30 am to 5:00 pm schedule,” JA275, which alone would surpass the 133 hours and 35 minutes the agency claimed he did not work, JA53.

Perry also consistently argued that his supervisors “were fully

aware and until June 7, 2011 [the date of the proposed removal] . . .

provided an informal accommodation for my disability,” JA31, which

included “permission to work outside of my 7:30 to 5:00 formal work

hours,” JA32. If, as Perry alleged, the Census Bureau had long been

aware of and sanctioned his flexible work schedule, it could not seek his

removal on the same basis. “Precedent generally requires notice to an

employee when previously condoned activity is no longer condoned,

giving the employee the opportunity to conform to any new rules.”


46

Crane v. Dep’t of the Air Force, 240 Fed. App’x 415, 418 (Fed. Cir. 2007);

see, e.g., Rabago v. Dep’t of Army, 25 M.S.P.R. 530, 532-33 (MSPB 1985).

Even if more senior agency personnel had previously been unaware of

Perry’s supervisor-approved work arrangements, his response to the

notice of removal explained the situation clearly. JA67 (“The Agency

failed to notify me that my supervisor’s prior accommodations for me

were no longer going to be provided. Had I known, I would have

pursued the accommodations provided by the Disability Office.”). If

substantiated at a hearing, Perry’s allegations could therefore

demonstrate that the proposed removal was knowingly unjustified and

the resulting Settlement Agreement coerced.

Indeed, the evidence presented here shares critical similarities

with Schultz. There, the petitioner submitted to the agency a bona fide

request for an accommodation due to illness. 810 F.2d at 1134-35. The

agency denied her request, threatened her with “disciplinary action up

to removal” in light of her “unauthorized absence status,” and forced her

to choose between returning to work immediately or voluntarily

resigning. Id. at 1135. The petitioner resigned. Id. She appealed to


47

the Board, but the Board held that it lacked jurisdiction over her

“voluntary” resignation. Id.

The Court of Appeals reversed. In light of the supporting

documentation the petitioner had provided, the court found that “the

agency acted coercively in denying her leave request and forcing a

retroactive resignation.” Id. at 1136. That the agency official may not

have been “personally aware” of the full details of petitioner’s situation

and request at the time did not matter, since the agency’s position

became untenable once petitioner provided the necessary supporting

documentation. Id. In short, the “agency knew or should have known”

that its “charge . . . was no longer a viable basis” for the adverse action.

Id. at 1137.

Perry’s allegations paint a similar picture. Perry has cited

evidence that he was authorized to work on a flexible schedule, which

could explain away the agency’s charge of receiving pay for time not

worked. See p. 45-46, supra. He made the agency aware of those

arrangements in his response to the proposed removal. JA65-67. Like

Schultz, then, the “agency knew or should have known” that its “charge


48

. . . was no longer a viable basis” for the adverse action. 810 F.2d at

1137.

The Board nevertheless found Perry’s allegations frivolous.

JA300-01. To reach that conclusion, the Board relied entirely on Perry’s

formal response to the agency’s Notice of Proposed Removal, and did not

consider or address any of the allegations or documentary evidence

Perry had presented to the ALJ. JA300-01. Based on that omission

alone, the Board’s decision cannot withstand judicial review. See, e.g.,

Norris v. S.E.C., 675 F.3d 1349, 1355-56 (Fed. Cir. 2012) (finding that

the Board is generally required to consider all evidence before it in

evaluating a personnel action, and remanding “because the Board failed

to explicitly analyze [petitioner’s] medical evidence”); Morall v. Drug

Enforcement Admin., 412 F.3d 165, 167 (D.C. Cir. 2005) (agency

“decision cannot withstand review, because it fails to consider

contradictory record evidence where such evidence is precisely on

point”); El Rio Santa Cruz Neighborhood Health Ctr. v. U.S. Dep’t of

Health & Human Servs., 396 F.3d 1265, 1278 (D.C. Cir. 2005) (finding

agency action arbitrary and capricious in failing to address relevant

evidence before it); Shoaf, 260 F.3d at 1342-43 (Board “abused its


49

discretion” by failing to consider “the totality of the circumstances in

determining whether [petitioner’s] resignation was involuntary”);

Middleton, 185 F.3d at 1380 (Board must “view[] as a whole” “[a]ll

relevant non-frivolous allegations” in determining whether a

jurisdictional hearing is warranted).

The Board also selectively interpreted the only piece of evidence it

did consider. In analyzing Perry’s response to the Notice of Proposed

Removal, the Board focused on limited excerpts to imply that Perry had

effectively conceded the agency’s charges. JA300-01. Read as a whole,

however, Perry’s response conceded no such thing. Instead, his letter

explained the prior accommodations provided by his supervisor and how

they accounted for the agency’s specific allegations of time not worked.

See, e.g., JA65 (“My supervisor has been aware of my health issues

since 2007 and told me to ‘do what I needed to do’ when I told him I

needed to walk and stretch for relief of my knee and then later my hip

and back several years ago. … I was never told that the informal

accommodation had changed.”). Perry’s response letter thus did not

substantiate the agency’s charges, nor did it contradict the allegations

and evidence that he later presented to the Board regarding his


50

removal. Yet the Board did not address those aspects of Perry’s

response letter, instead focusing on Perry’s admissions that he did, in

fact, work a somewhat flexible schedule. JA300. By doing so, the Board

failed to appreciate the “totality of the circumstances” surrounding

Perry’s proposed removal. Shoaf, 260 F.3d at 1343. That “piecemeal

analysis” of Perry’s allegations “may have blinded the Board to what is

clear . . . . namely, that [Perry]’s allegations, taken as a whole, entitle

him to an evidentiary hearing on the voluntariness of his retirement.”

Middleton, 185 F.3d at 1383.

Because the Board declined to conduct a hearing on Perry’s

jurisdictional allegations, he never made it past “go” on non-frivolous

claims that his adverse personnel actions were unjustified and his

Settlement Agreement coerced. The Board reached that decision

without considering the evidence before it, in violation of basic

principles of administrative law. A fair reading of the evidentiary

record demonstrates that, in fact, Perry’s allegations warranted at least

a preliminary jurisdictional hearing. Should the Court reach this issue,

the Board’s contrary conclusion must be set aside.


51

CONCLUSION

For the foregoing reasons, the Court should transfer this case to

the district court. Should the Court conclude that it has jurisdiction

over Perry’s petition for review, the Court should grant the petition,

vacate the Board’s order, and instruct the Board to conduct a hearing on

Perry’s claims.

Respectfully submitted,

February 13, 2015

/s/ Rebecca Taibleson____ Rebecca Taibleson Devin S. Anderson KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Washington, DC 20005 (202) 879-5000

Court-Appointed Amicus Curiae Christopher Landau, P.C. KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Washington, DC 20005 (202) 879-5000 Of Counsel


CERTIFICATE OF COMPLIANCE

Pursuant to Rule 32(a) of the Federal Rules of Appellate

Procedure and Circuit Rule 32(a)(2), I hereby certify that the textual

portion of the foregoing brief (exclusive of the disclosure statement,

tables of contents and authorities, certificates of service and compliance,

but including footnotes) contains 9,998 words as determined by the

word counting feature of Microsoft Word 2000.

/s/ Rebecca Taibleson____ Rebecca Taibleson


CERTIFICATE OF SERVICE

The undersigned certifies that on this 13th day of February 2015,

she caused an electronic version of the Brief of Amicus Curiae to be

served upon the following by ECF:

Stephen Fung Jeffrey Gauger MERIT SYSTEMS PROTECTION BOARD 1615 M Street, N.W. Washington, DC 20419 (202) 653-6772 [email protected] [email protected] Counsel for Respondent

And the undersigned also certifies that on this 13th day of February

2015, she caused the Brief of Amicus Curiae to be served by United

States First Class mail on the following:

Anthony W. Perry 5907 Croom Station Road Upper Marlboro, MD 20772 Petitioner

_/s/ Rebecca Taibleson________ Rebecca Taibleson


mailto:[email protected]

Documents

Amicus Brief: Anthony W. Perry v Merit Systems Protection Board