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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

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

Of Counsel

Court-Appointed Amicus

February 13, 2015

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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-0752-12-0487I-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.

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/s/ Rebecca Taibleson___

Rebecca Taibleson
February 13, 2015

ii

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TABLE OF CONTENTS

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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.

II.

This Court Should Transfer Perrys 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

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
iii

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TABLE OF AUTHORITIES1

Page 5 of 61

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. Dept of Transp.,
21 Fed. Appx 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. Dept of Health & Human Servs.,
750 F.2d 937 (Fed. Cir. 1984)......................................................... 44
1
Authorities upon which amicus chiefly relies are marked with
asterisks.
iv

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Crane v. Dept of the Air Force,

240 Fed. Appx 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. Dept of Health & Human Servs.,
396 F.3d 1265 (D.C. Cir. 2005)....................................................... 48
Elgin v. Dept 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. Dept 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. Dept of the Army,
570 Fed. Appx 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
v

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Marshall v. Dept of the Navy,

84 M.S.P.R. 676 (MSPB 2000) ....................................................... 37
*Middleton v. Dept 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. Dept 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. Dept 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. Dept 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

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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
petitioners position.
STATEMENT OF AUTHORSHIP AND FINANCIAL
CONTRIBUTIONS
Appointed amicus is the author of the brief. No party, a partys
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, Perrys

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 Perrys claims on jurisdictional grounds, without

holding a hearing on Perrys most substantial allegations.

Perry,

seeking to have his claims heard and attempting, in good faith, to follow
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the Acts 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 Perrysso called mixed cases,
alleging both appealable personnel actions and discriminationreview
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 petitioners claims. That straightforward rule should apply equally
to Perrys case, where the Board dismissed his appeal on jurisdictional
grounds. This Court should therefore transfer Perrys appeal to the
district court, where he may pursue both his claims of discrimination
and his petition for review of the Boards decision.
Alternatively, should the Court reach the merits of Perrys
petition for review, it should vacate the Boards 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 Perrys appeal without
permitting a hearing on his most significant claims. It reached that
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decision by ignoring Perrys allegations, and by misreading the limited

evidence on which it did rely. That decision should be vacated.
STATEMENT OF JURISDICTION
This Courts 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), Perrys 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
Boards 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 Perrys appeal, which

challenges the Boards resolution of Perrys 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 Boards 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 Boards 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 Perrys appeal for lack of jurisdiction
without reaching many of his allegations, some of the facts underlying
Perrys 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, Perrys 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, Perrys 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 Perrys direct supervisor. JA43-55. The
Notice proposed to terminate Perrys 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 Perrys 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 Perrys 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

supervisors

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

accommodation for his disability. JA68.

14

formal

reasonable

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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 Perrys 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 Perrys pending actions had been resolved, and issued a
formal notice of Perrys 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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USCA Case #14-1155

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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.
removal

JA3.

notice

He argued that the Census Bureaus proposed

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.
Perrys 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 Boards
jurisdiction.

JA25-28.

The order noted that the Board would

nevertheless exercise jurisdiction over an employment action taken

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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 nonfrivolous allegation that his claims were within the Boards
jurisdiction. JA24. Should Perry produce such allegations, the ALJ
would conduct a hearing to evaluate his jurisdictional claims. JA24.
In response to the ALJs 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 agencys coercive tactics were the product of
discrimination and retaliation for Perrys prior complaints, JA30-32,
JA34-37.
Without holding a hearing on Perrys claims, the ALJ issued a
decision dismissing his appeal for lack of jurisdiction. JA259-66. The
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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 ALJs
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 Perrys allegations that the

agency coerced him into signing the settlement by pursuing an
employment action the agency knew it could not substantiate. JA30001.

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 Perrys
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
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which he detrimentally relied in signing the settlement agreement

(namely, that he would not otherwise have appeal rights).
(internal quotation marks omitted).

JA474

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 ALJs
decision dismissing Perrys 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 Perrys
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 Perrys
appeal and should transfer his case to the district court. Before the
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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 petitioners 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 Boards
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 Perrys allegations, and misread the evidence
it did consider. That decision should not stand.

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STANDING
Perry has both statutory and constitutional standing to challenge
the Boards 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 Boards 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 Perrys 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
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at issue, the type of employee affected, and the nature of the employees
allegations. Id. at 443. One aspect of the Acts complicated scheme is,
however,

relatively

straightforward:

When

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 actionstermed adverse

actionsmay 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

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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

Rehabilitation Act, or the Fair Labor Standards Act.

Act,

the

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
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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 Boards
decisions in mixed appeals.
There are multiple routes for an employees 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.

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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. Dept 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 Boards
disposition of whistleblowing allegations. See King v. Dept of the Army,
570 Fed. Appx 863, 865 (11th Cir. 2014). Although Perry originally
invoked that provision to support this Courts jurisdiction over his
petition, the administrative record indicates that, in fact, Perrys claims
go beyond pure whistleblowing allegations.
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7702

and

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7703

thus

Page 34 of 61

establish

one

straightforward aspect of the Acts 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 casesthose 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 Boardappealable actions.

See JA3.

And as the Board explained in its

preliminary filing in this Court, the petitioners initial appeal [to the
Board] states on multiple occasions that he believes the adverse actions
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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
Perrys discrimination claims.

Instead, the Board dismissed Perrys

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 Perrys 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 Courts recent decision in Kloeckner.
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Until 2012, a majority of circuitsincluding this onewould have

agreed with the Board, holding that the Federal Circuit has exclusive
jurisdiction to review the Boards threshold, non-merits determinations
in mixed cases like Perrys. See, e.g., Kloeckner v. Solis, 639 F.3d 834,
838 (8th Cir. 2011), revd and remanded, 133 S. Ct. 596 (2012);
Burzynski v. Cohen, 264 F.3d 611, 620-21 (6th Cir. 2001); Powell v.
Dept 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 Circuits 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.

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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

Governments argument that the Act directs only the Boards merits
decisions to the district court, concluding that the merits-procedure
distinction is a contrivance, found nowhere in the statutes 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).
Butas 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 Respt Br.
in Oppn at 15, Kloeckner, 133 S. Ct. 596; Rep. Br. for Petr at 2,
Kloeckner, 133 S. Ct. 596. Under Kloeckner, that rule is clear: The Act

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directs all mixed cases to the district courts, regardless of the content of
the Boards decision. 5 U.S.C. 7703(b)(2).
As a textual matter, none of the Acts 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 Acts text or
implementing regulations suggests an exception to Kloeckners rule for
the Boards 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 Boards jurisdictional dismissals in
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mixed cases. Conforto v. MSPB, 713 F.3d 1111 (Fed. Cir. 2013). That
decision turned on the Federal Circuits 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 employees 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 Boards 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, Confortos

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.
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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 Boards procedural
rulesfor example, by filing an untimely appealalso 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)
(employees 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.
Kloeckner explicitly rejected.

Of course, that is the rule

By logical extension, Kloeckner thus

necessarily rejected Confortos reading of 7702(a)(1).

Because the

statutory text does not actually differentiate between jurisdictional and

procedural dismissals, Confortos attempt to conjure such a distinction
is ultimately irreconcilable with Kloeckners reading of the Act.

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Nor does Confortos rule further the purposes or improve the

operation of the Acts 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. Respt Br. in Oppn 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 Kloeckners appeal as untimely for missing the Boards
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 Confortos rule requires.

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When jurisdictional and procedural dismissals of mixed cases do

differ, the Boards 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 coercedso-called constructive adverse
action cases. See Garcia v. Dept 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 Boards analysis of its own jurisdiction often overlaps
with the merits of the employees claim that a personnel action was
coerced by discrimination or otherwise involuntary. See, e.g., Boyd v.
Dept of Transp., 21 Fed. Appx 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
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(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).
Conforto

was

correct, those

Board

decisionstechnically

If

called

jurisdictional, but in fact analyzing the merits of an employees

claimswould 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 factintensive

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. 95969, 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 employees case turned on the success or failure
of his substantive claims, even if the Boards decision is couched in
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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 Boards
rejection of Perrys 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, Confortos rulethat the district courts lose the power to
review mixed cases when the Board dismisses those cases on
jurisdictional groundsalso 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
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of which is jurisdictional and another is either procedural or meritsbased? 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. Dept 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 resultwhich is plainly contrary to Kloecknerreflects the

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confusion created by Confortos artificial distinction between procedural

and jurisdictional rulings.
Conforto thus reintroduces the complexity surrounding judicial
review of mixed appeals that Kloeckner swept away. Under the Acts
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] employees 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.
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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 actionsspecifically,

the proposed removal and suspension noticewere initiated at the
main Department of Commerce office in Washington, D.C., and Perrys
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 Perrys 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
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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 Boards 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 Perrys petition for review, the Court should vacate the Boards
decision and remand for the Board to conduct a hearing on Perrys claim
that his retirement and suspension were involuntary. Perry made nonfrivolous 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).
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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 Boards 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 Boards
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
Perrys 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).
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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. Dept 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
appellants 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.

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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 Boards jurisdiction.

Schultz, 810 F.2d at 1136.

Under settled

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

Perry a hearing to establish the Boards 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 nonfrivolous allegations, including background facts, . . . must be viewed as
a whole in determining whether a petitioner has made such a showing.
Middleton v. Dept 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 Perrys allegations and evidence, and should be
vacated.
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In reviewing the Boards 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 nonfrivolous allegations of jurisdiction is a procedure required by law.
Garcia, 437 F.3d at 1345; see also Covington v. Dept of Health &
Human Servs., 750 F.2d 937, 943 (Fed. Cir. 1984). The Federal Circuit
has, in the past, reviewed the Boards 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 Perrys 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).
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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 supervisors 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 Perrys 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.
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Crane v. Dept of the Air Force, 240 Fed. Appx 415, 418 (Fed. Cir. 2007);
see, e.g., Rabago v. Dept of Army, 25 M.S.P.R. 530, 532-33 (MSPB 1985).
Even if more senior agency personnel had previously been unaware of
Perrys supervisor-approved work arrangements, his response to the
notice of removal explained the situation clearly. JA67 (The Agency
failed to notify me that my supervisors 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, Perrys 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

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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 petitioners situation
and request at the time did not matter, since the agencys 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.
Perrys allegations paint a similar picture.

Perry has cited

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

could explain away the agencys 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

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. . . was no longer a viable basis for the adverse action. 810 F.2d at
1137.
The Board nevertheless found Perrys allegations frivolous.
JA300-01. To reach that conclusion, the Board relied entirely on Perrys
formal response to the agencys 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 Boards 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 [petitioners] 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. Dept 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
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discretion by failing to consider the totality of the circumstances in

determining whether [petitioners] resignation was involuntary);
Middleton, 185 F.3d at 1380 (Board must view[] as a whole [a]ll
relevant

non-frivolous

allegations

in

determining

whether

jurisdictional hearing is warranted).

The Board also selectively interpreted the only piece of evidence it
did consider. In analyzing Perrys response to the Notice of Proposed
Removal, the Board focused on limited excerpts to imply that Perry had
effectively conceded the agencys charges. JA300-01. Read as a whole,
however, Perrys response conceded no such thing. Instead, his letter
explained the prior accommodations provided by his supervisor and how
they accounted for the agencys 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.).

Perrys response letter thus did not

substantiate the agencys charges, nor did it contradict the allegations

and evidence that he later presented to the Board regarding his
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Yet the Board did not address those aspects of Perrys

response letter, instead focusing on Perrys 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
Perrys proposed removal. Shoaf, 260 F.3d at 1343. That piecemeal
analysis of Perrys 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 Perrys
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, Perrys allegations warranted at least

a preliminary jurisdictional hearing. Should the Court reach this issue,
the Boards contrary conclusion must be set aside.

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CONCLUSION
For the foregoing reasons, the Court should transfer this case to
the district court. Should the Court conclude that it has jurisdiction
over Perrys petition for review, the Court should grant the petition,
vacate the Boards order, and instruct the Board to conduct a hearing on
Perrys 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

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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

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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
stephen.fung@mspb.gov
jeffrey.gauger@mspb.gov
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