Perry v. Merit Systems Protection Bd. (16-399)

argument 16-399

Perry v. Merit Systems Protection Bd.

Supreme Court of the United States 57 min 5 speakers 5 chapters transcribed 5 days ago official recording ↗

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What is the central dispute over “mixed cases” in Perry v. MSPB?

John G. Roberts 0:00

We'll hear argument first this morning in Case 16-399, Perry v. the Merit Systems Protection Board. Mr. Landau.

Benjamin D. Landau 0:11

Thank you, Mr. Chief Justice, and may it please the Court. The parties here agree that a Federal employee has a mixed case when he alleges that he was affected by an appealable civil service action and discrimination. The parties dispute whether the case ceases to be a mixed case if and when the Board decides that the employee hasn't proven that he was affected by an appealable civil service action. The answer to that question is no. Whenever the Board rejects an employee's allegations that he was affected by an appealable civil service action, the Board is making a substantive decision on the merits of the employee's civil service claim. That point has nothing to do with the Board's jurisdiction and therefore nothing to do with whether the employee has brought a mixed case reviewable in district court as opposed to the Federal Circuit.

Benjamin D. Landau 1:06

Here, the as in so many cases, the root of the problem is the word jurisdiction. Whenever the Board rejects an employee's allegations that he was affected by an appealable civil service action, the Board labels its decision jurisdictional. That label is incorrect. The board's conclusion that the employee's civil service claim fails on the merits doesn't retroactively strip the board of jurisdiction, just as the failure of an alleged federal question on the merits doesn't retroactively strip a federal court of jurisdiction.

Unknown 1:42

I'm sorry. Just as an introductory question, Michelin, it's really probably more for the government than for you. But if the government were to review, this same case could potentially go from the board to the Federal Circuit, back to the board, then to the district court. Is there any other scheme like that? Is there anything that the government might point to that is an analogous scheme?

Benjamin D. Landau 2:07

I don't think they'll be able to, Your Honor, and certainly that detour to the Federal Circuit for a decision where ultimately the Federal Circuit can't resolve the case is is unprecedented in my experience. Certainly

Unknown 2:22

— But the district court couldn't resolve the case at this point either because the internal remedies weren't exhausted. So if the appealability — the civil service appealability goes to the district court, then it has to go back to MHPB, and it gets to the district court only if the EEO remedy has been exhausted. Isn't that so?

Benjamin D. Landau 2:46

Well, you raise an interesting question, Your Honor, about exhaustion. Exhaustion is a defense. If the government, if you're in the district court and the court rejects the, the board, excuse me, the court affirms the board on the civil service claim, again, that that's really a merits determination that the board has made, notwithstanding its label, then there would certainly be a question, Your Honor, as to whether or not the discrimination case has been exhausted. Well,

Unknown 3:15

couldn't the government take the position that it hasn't been? And exhaustion is a requirement. You can't get to the district court on a discrimination claim without exhausting your internal remedy.

Benjamin D. Landau 3:26

They could take that position, Your Honor. And arguably, there certainly could be a fight about exhaustion at that point, whether or not having presented the case to the MSPB in the first instance was exhaustion. But if not, Your Honor, even under the government's own scenario, District courts deal with unexhausted claims every day and have mechanisms for dealing with that. The district court could hold the case in abeyance, for instance, and require the employee to exhaust in the agency. But that doesn't mean that the case doesn't belong in the district court in the first place. That's really kind of a remedial point. Once you wind up in the district court, our whole point here is that This is a mixed case, so you should be in district court in the first place as opposed to the Federal

John G. Roberts 4:13

Circuit. You could go to the district court right away simply by skipping the MSPB, right?

Benjamin D. Landau 4:19

Absolutely. And that's one of the problems with their argument, Your Honor, because under that point, one of their main arguments is that the scheme is set up to create a uniform system