Perry v. Merit Systems Protection Bd.

(Slip Opinion) OCTOBER TERM, 2016 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

PERRY v. MERIT SYSTEMS PROTECTION BOARD

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

No. 16–399. Argued April 17, 2017—Decided June 23, 2017

Under the Civil Service Reform Act of 1978 (CSRA), the Merit Systems

Protection Board (MSPB or Board) has the power to review certain

serious personnel actions against federal employees. If an employee

asserts rights under the CSRA only, MSPB decisions are subject to

judicial review exclusively in the Federal Circuit. 5 U. S. C.

§7703(b)(1). If the employee invokes only federal antidiscrimination

law, the proper forum for judicial review is federal district court. See

Kloeckner v. Solis, 568 U. S. 41, 46.

An employee who complains of a serious adverse employment ac-

tion and attributes the action, in whole or in part, to bias based on

race, gender, age, or disability brings a “mixed case.” When the

MSPB dismisses a mixed case on the merits or on procedural

grounds, review authority lies in district court, not the Federal Cir-

cuit. Id., at 50, 56. This case concerns the proper forum for judicial

review when the MSPB dismisses such a case for lack of jurisdiction.

Anthony Perry received notice that he would be terminated from

his employment at the U. S. Census Bureau for spotty attendance.

Perry and the Bureau reached a settlement in which Perry agreed to

a 30-day suspension and early retirement. The settlement also re-

quired Perry to dismiss discrimination claims he had filed separately

with the Equal Employment Opportunity Commission (EEOC). After

retiring, Perry appealed his suspension and retirement to the MSPB,

alleging discrimination based on race, age, and disability, as well as

retaliation by the Bureau for his prior discrimination complaints.

The settlement, he maintained, did not stand in the way, because the

Bureau had coerced him into signing it. But an MSPB administra-

tive law judge (ALJ) determined that Perry had failed to prove that

the settlement was coerced. Presuming Perry’s retirement to be vol-

2 PERRY v. MERIT SYSTEMS PROTECTION BD.

Syllabus

untary, the ALJ dismissed his case. Because voluntary actions are

not appealable to the MSPB, the ALJ observed, the Board lacked ju-

risdiction to entertain Perry’s claims. The MSPB affirmed, deeming

Perry’s separation voluntary and therefore not subject to the Board’s

jurisdiction. If dissatisfied with the MSPB’s ruling, the Board stated,

Perry could seek judicial review in the Federal Circuit. Perry instead

sought review in the D. C. Circuit, which, the parties later agreed,

lacked jurisdiction. The D. C. Circuit held that the proper forum was

the Federal Circuit and transferred the case there. Kloeckner did not

control, the court concluded, because it addressed dismissals on pro-

cedural grounds, not jurisdictional grounds.

Held: The proper review forum when the MSPB dismisses a mixed case

on jurisdictional grounds is district court. Pp. 9–17.

(a) The Government argues that employees must split their mixed

claims, appealing MSPB nonappealability rulings to the Federal Cir-

cuit while repairing to the district court to adjudicate their discrimi-

nation claims. Perry counters that the district court alone can re-

solve his entire complaint. Perry advances the more sensible reading

of the statutory prescriptions.

Kloeckner announced a clear rule: “[M]ixed cases shall be filed in

district court.” 568 U. S., at 50; see id., at 56. The key to district

court review is the employee’s “clai[m] that an agency action appeal-

able to the MSPB violates an antidiscrimination statute listed in

§7702(a)(1).” Id., at 56 (emphasis added). Such a nonfrivolous alle-

gation of jurisdiction suffices to establish district court jurisdiction.

EEOC regulations are in accord, and several Courts of Appeals have

similarly described mixed-case appeals as those alleging an adverse

action subject to MSPB jurisdiction taken, in whole or in part, be-

cause of unlawful discrimination. Perry, who “complain[ed] of a per-

sonnel action serious enough to appeal to the MSPB” and “allege[d]

that the [personnel] action was based on discrimination,” brought a

mixed case, and district court jurisdiction was therefore proper.

Pp. 9–12.

(b) The Government’s proposed distinction—between MSPB merits

and procedural decisions, on the one hand, and the Board’s jurisdic-

tional rulings, on the other—has multiple infirmities. Had Congress

wanted to bifurcate judicial review, sending merits and procedural

decisions to district court and jurisdictional dismissals to the Federal

Circuit, it could have said so. See Kloeckner, 568 U. S., at 52. The

Government’s newly devised attempt to distinguish jurisdictional

dismissals from procedural dismissals is a departure from its position

in Kloeckner. Such a distinction, as both parties recognized in

Kloeckner, would be perplexing and elusive. The distinction between

jurisdiction and the merits is also not inevitably sharp, for the two

Cite as: 582 U. S. ____ (2017) 3

Syllabus

inquiries may overlap. And because the MSPB may issue rulings on

alternate or multiple grounds, some “jurisdictional,” others procedur-

al or substantive, allocating judicial review authority based on a sep-

arate rule for jurisdictional rulings may prove unworkable in prac-

tice. Perry’s comprehension of the complex statutory text, in

contrast, serves “[t]he CSRA’s objective of creating an integrated

scheme of review[, which] would be seriously undermined” by “paral-

lel litigation regarding the same agency action.” Elgin v. Department

of Treasury, 567 U. S. 1, 14. Pp. 12–17.

829 F. 3d 760, reversed and remanded.

GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and KENNEDY, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ.,

joined. GORSUCH, J., filed a dissenting opinion, in which THOMAS, J.,

joined.

Cite as: 582 U. S. ____ (2017) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 16–399

_________________

ANTHONY W. PERRY, PETITIONER v. MERIT

SYSTEMS PROTECTION BOARD

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

[June 23, 2017]

JUSTICE GINSBURG delivered the opinion of the Court.

This case concerns the proper forum for judicial review

when a federal employee complains of a serious adverse

employment action taken against him, one falling within

the compass of the Civil Service Reform Act of 1978

(CSRA), 5 U. S. C. §1101 et seq., and attributes the action,

in whole or in part, to bias based on race, gender, age, or

disability, in violation of federal antidiscrimination laws.

We refer to complaints of that order, descriptively, as

“mixed cases.”

In the CSRA, Congress created the Merit Systems Pro-

tection Board (MSPB or Board) to review certain serious

personnel actions against federal employees. If an em-

ployee asserts rights under the CSRA only, MSPB deci-

sions, all agree, are subject to judicial review exclusively

in the Federal Circuit. §7703(b)(1). If the employee as-

serts no civil-service rights, invoking only federal antidis-

crimination law, the proper forum for judicial review,

again all agree, is a federal district court, see Kloeckner v.

Solis, 568 U. S. 41, 46 (2012); the Federal Circuit, while

empowered to review MSPB decisions on civil-service

2 PERRY v. MERIT SYSTEMS PROTECTION BD.

Opinion of the Court

claims, §7703(b)(1)(A), lacks authority over claims arising

under antidiscrimination laws, see §7703(c).

When a complaint presents a mixed case, and the MSPB

dismisses it, must the employee resort to the Federal

Circuit for review of any civil-service issue, reserving

claims under federal antidiscrimination law for discrete

district court adjudication? If the MSPB dismisses a

mixed case on the merits, the parties agree, review au-

thority lies in district court, not in the Federal Circuit. In

Kloeckner, 568 U. S., at 50, 56, we held, the proper review

forum is also the district court when the MSPB dismisses

a mixed case on procedural grounds, in Kloeckner itself,

failure to meet a deadline for Board review set by the

MSPB. We hold today that the review route remains the

same when the MSPB types its dismissal of a mixed case as

“jurisdictional.” As in Kloeckner, we are mindful that re-

view rights should be read not to protract proceedings,

increase costs, and stymie employees,1 but to secure expedi-

tious resolution of the claims employees present. See Elgin

v. Department of Treasury, 567 U. S. 1, 15 (2012) (empha-

sizing need for “clear guidance about the proper forum for

[an] employee’s [CSRA] claims”). Cf. Fed. Rule Civ. Proc. l.

I

A

The CSRA “establishes a framework for evaluating

personnel actions taken against federal employees.”

Kloeckner v. Solis, 568 U. S. 41, 44 (2012). For “particu-

larly serious” actions, “for example, a removal from em-

ployment or a reduction in grade or pay,” “the affected

employee has a right to appeal the agency’s decision to the

MSPB.” Ibid. (citing §§1204, 7512, 7701). Such an appeal

——————

1 Many CSRA claimants proceed pro se. See MSPB, Congressional

Budget Justification FY 2017, p. 14 (2016) (“Generally, at least half or

more of the appeals filed with the [MSPB] are from pro se appellants

. . . .”).

Cite as: 582 U. S. ____ (2017) 3

Opinion of the Court

may present a civil-service claim only. Typically, the

employee may allege that “the agency had insufficient

cause for taking the action under the CSRA.” Id., at 44.

An appeal to the MSPB, however, may also complain of

adverse action taken, in whole or in part, because of dis-

crimination prohibited by another federal statute, for

example, Title VII of the Civil Rights Act of 1964, 42

U. S. C. §2000e et seq., or the Age Discrimination in Em-

ployment Act of 1967, 29 U. S. C. §621 et seq. See 5

U. S. C. §7702(a)(1); Kloeckner, 568 U. S., at 44.

In Kloeckner, we explained, “[w]hen an employee com-

plains of a personnel action serious enough to appeal to

the MSPB and alleges that the action was based on dis-

crimination, she is said (by pertinent regulation) to have

brought a ‘mixed case.’ ” Ibid. (quoting 29 CFR §1614.302

(2012)). See also §1614.302(a)(2) (2016) (defining “mixed

case appeal” as one in which an employee “alleges that an

appealable agency action was effected, in whole or in part,

because of discrimination”). For mixed cases, “[t]he CSRA

and regulations of the MSPB and Equal Employment

Opportunity Commission (EEOC) set out special proce-

dures . . . different from those used when the employee

either challenges a serious personnel action under the

CSRA alone or attacks a less serious action as discrimina-

tory.” Kloeckner, 568 U. S., at 44–45.

As Kloeckner detailed, the CSRA provides diverse proce-

dural routes for an employee’s pursuit of a mixed case.

The employee “may first file a discrimination complaint

with the agency itself,” in the agency’s equal employment

opportunity (EEO) office, “much as an employee challeng-

ing a personnel practice not appealable to the MSPB could

do.” Id., at 45 (citing 5 CFR §1201.154(a) (2012); 29 CFR

§1614.302(b) (2012)); see §7702(a)(2). “If the agency [EEO

office] decides against her, the employee may then either

take the matter to the MSPB or bypass further adminis-

trative review by suing the agency in district court.”

4 PERRY v. MERIT SYSTEMS PROTECTION BD.

Opinion of the Court

Kloeckner, 568 U. S., at 45 (citing 5 CFR §1201.154(b); 29

CFR §1614.302(d)(1)(i)); see §7702(a)(2). “Alternatively,

the employee may initiate the process by bringing her case

directly to the MSPB, forgoing the agency’s own system for

evaluating discrimination charges.” Kloeckner, 568 U. S.,

at 45 (citing 5 CFR §1201.154(a); 29 CFR §1614.302(b));

see §7702(a)(1).

Section 7702 prescribes appellate proceedings in actions

involving discrimination. Defining the MSPB’s jurisdic-

tion in mixed-case appeals that bypass an agency’s EEO

office, §7702(a)(1) states in relevant part:

“[I]n the case of any employee . . . who—

“(A) has been affected by an action which the em-

ployee . . . may appeal to the [MSPB], and

“(B) alleges that a basis for the action was discrimi-

nation prohibited by [specified antidiscrimination

statutes], . . .

“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 ap-

pellate procedures . . . .”2

Section 7702(a)(2) similarly authorizes a mixed-case ap-

peal to the MSPB from an agency EEO office’s decision.

Then, “[i]f the MSPB upholds the personnel action

(whether in the first instance or after the agency has done

so), the employee again has a choice: She may request

additional administrative process, this time with the

EEOC, or else she may seek judicial review.” Kloeckner,

568 U. S., at 45 (citing §7702(a)(3), (b); 5 CFR §1201.161;

29 CFR §1614.303).

——————

2 If the MSPB fails to render a “judicially reviewable action” within

120 days, an employee may, “at any time after . . . the 120th day,” “file

a civil action [in district court] to the same extent and in the same

manner as provided in” the federal antidiscrimination laws invoked by

the employee. §7702(e)(1).

Cite as: 582 U. S. ____ (2017) 5

Opinion of the Court

Section 7703(b) designates the proper forum for judicial

review of MSPB decisions. Section 7703(b)(1)(A) provides

the general rule: “[A] petition to review a . . . final decision

of the Board shall be filed in the United States Court of

Appeals for the Federal Circuit.” Section 7703(b)(2) states

the exception here relevant, governing “[c]ases of discrim-

ination subject to the provisions of [§]7702.” See Kloeck-

ner, 568 U. S., at 46 (“The ‘cases of discrimination’ in

§7703(b)(2)’s exception . . . are mixed cases, in which an

employee challenges as discriminatory a personnel action

appealable to the MSPB.”). Such cases “shall be filed

under [the enforcement sections of Title VII of the Civil

Rights Act of 1964, the Age Discrimination in Employment

Act, and the Fair Labor Standards Act of 1938, 29 U. S. C.

§201 et seq.], as applicable.” §7703(b)(2). Those enforce-

ment provisions “all authorize suit in federal district

court.” Kloeckner, 568 U. S., at 46 (citing, inter alia, 42

U. S. C. §§2000e–16(c), 2000e–5(f); 29 U. S. C. §633a(c);

§216(b)). Thus, if the MSPB decides against the employee

on the merits of a mixed case, the statute instructs her to

seek review in federal district court under the enforcement

provision of the relevant antidiscrimination laws.

§7703(b)(2); see Kloeckner, 568 U. S., at 56, n. 4.3

Federal district court is also the proper forum for judicial

review, we held in Kloeckner, when the MSPB dismisses

a mixed case on procedural grounds. Id., at 50, 56. We

——————

3 Our decision in Kloeckner v. Solis, 568 U. S. 41 (2012), did not merely

assume that the civil-service component of mixed cases travels to

district court. See id., at 56, n. 4 (“If the MSPB rejects on the merits a

complaint alleging that an agency violated the CSRA as well as an

antidiscrimination law, the suit will come to district court for a decision

on both questions.” (emphasis added)). But see post, at 9–10. Charac-

teristic of “mixed cases,” the employee in Kloeckner complained of

adverse action taken, at least in part, because of discrimination. See

568 U. S., at 47. The Board dismissed that case, not for any flaw under

antidiscrimination law, but because the employee missed a deadline set

by the MSPB. See id., at 47–48.

6 PERRY v. MERIT SYSTEMS PROTECTION BD.

Opinion of the Court

rested that conclusion on this syllogism: “Under §7703(b)(2),

‘cases of discrimination subject to [§7702]’ shall be filed in

district court.” Id., at 50 (alteration in original). Further,

“[u]nder §7702(a)(1), [mixed cases qualify as] ‘cases of

discrimination subject to [§7702].’ ” Ibid. (third alteration

in original). Thus, “mixed cases shall be filed in district

court.” Ibid. That syllogism, we held, holds true whether

the dismissal rests on procedural grounds or on the merits,

for “nowhere in the [CSRA’s] provisions on judicial review”

is a distinction drawn between MSPB merits decisions and

procedural rulings. Id., at 51.

The instant case presents this question: Where does

an employee seek judicial review when the MSPB dis-

misses her civil-service case alleging discrimination neither

on the merits nor on a procedural ground, but for lack of

jurisdiction?

B

Anthony Perry worked at the U. S. Census Bureau until

2012. 829 F. 3d 760, 762 (CADC 2016). In 2011, Perry

received notice that he would be terminated because of

spotty attendance. Ibid. Later that year, Perry and the

Bureau reached a settlement in which Perry agreed to a

30-day suspension and early retirement. Ibid. The

agreement required Perry to dismiss discrimination claims

he had separately filed with the EEOC. Ibid.

After retiring, Perry appealed his suspension and re-

tirement to the MSPB. Ibid. He alleged discrimination on

grounds of race, age, and disability, as well as retaliation

by the Bureau for his prior discrimination complaints.

Ibid. The settlement, he maintained, did not stand in the

way, because the Bureau coerced him into signing it. Ibid.

An MSPB administrative law judge (ALJ) eventually

determined that Perry had failed to prove that the settle-

ment was coerced. Perry v. Department of Commerce, No.

DC–0752–12–0486–B–1 etc. (Dec. 23, 2013) (initial deci-

Cite as: 582 U. S. ____ (2017) 7

Opinion of the Court

sion), App. to Pet. for Cert. 32a, 47a. Presuming Perry’s

retirement to be voluntary, the ALJ dismissed his case.

Id., at 33a, 47a. Voluntary actions are not appealable to

the MSPB, the ALJ observed, hence, the ALJ concluded,

the Board lacked jurisdiction to entertain Perry’s claims.

Id., at 51a.

The MSPB affirmed the ALJ’s decision. See Perry v.

Department of Commerce, 2014 WL 5358308, *1 (Aug. 6,

2014) (final order). The settlement agreement, the Board

recounted, provided that Perry would waive his Board

appeal rights with respect to his suspension and retire-

ment. Ibid. Because Perry did not prove that the agree-

ment was involuntary, the Board determined (in accord

with the ALJ) that his separation should be deemed vol-

untary, hence not an adverse action subject to the Board’s

jurisdiction under §7702(a)(1). Id., at *3–*4. If dissatis-

fied with the MSPB’s ruling, the Board stated in its deci-

sion, Perry could seek judicial review in the Federal Cir-

cuit. Id., at *4.

Perry instead filed a pro se petition for review in the

D. C. Circuit. 829 F. 3d, at 763. The court ordered juris-

dictional briefing and appointed counsel to argue for

Perry. Ibid. By the time the court heard argument, the

parties had agreed that the D. C. Circuit lacked jurisdic-

tion, but disagreed on whether the proper forum for judi-

cial review was the Federal Circuit, as the Government

contended, or federal district court, as Perry maintained.

Ibid.

The D. C. Circuit held that the Federal Circuit had

jurisdiction over Perry’s petition and transferred his case

to that court under 28 U. S. C. §1631. 829 F. 3d, at 763.

The court’s disposition was precedent-bound: In a prior

decision, Powell v. Department of Defense, 158 F. 3d 597,

598 (1998), the D. C. Circuit had held that the Federal

Circuit is the proper forum for judicial review of MSPB

decisions dismissing mixed cases “on procedural or

8 PERRY v. MERIT SYSTEMS PROTECTION BD.

Opinion of the Court

threshold grounds.” See 829 F. 3d, at 764, 767–768.

Notably, Powell ranked as a “procedural or threshold

matter” “the Board’s view of its jurisdiction.” 158 F. 3d, at

599 (internal quotation marks omitted).

The D. C. Circuit rejected Perry’s argument that Powell

was undermined by this Court’s intervening decision in

Kloeckner, which held MSPB procedural dispositions of

mixed cases reviewable in district court. 829 F. 3d, at

764–768. Kloeckner, the D. C. Circuit observed, repeatedly

tied its decision to dismissals on “procedural grounds,” 568

U. S., at 44, 46, 49, 52, 54, 55. See 829 F. 3d, at 765.

Jurisdictional dismissals differ from procedural dismis-

sals, the D. C. Circuit concluded, given the CSRA’s refer-

ence to mixed cases as those “which the employee . . . may

appeal to the [MSPB].” Id., at 766–767 (quoting

§7702(a)(1)(A); emphasis added). A jurisdictional dismis-

sal, the court said, rests on the Board’s determination that

the employee may not appeal his case to the MSPB. Id., at

766–767. In contrast, a dismissal on procedural grounds,

e.g., untimely resort to the MSPB, leaves the employee

still “affected by an action which [she] may appeal to

the MSPB.” Ibid. (quoting §7702(a)(1)(A); alteration in

original).

We granted certiorari to review the D. C. Circuit’s deci-

sion, 580 U. S. ___ (2017), which accords with the Federal

Circuit’s decision in Conforto v. Merit Systems Protection

Bd., 713 F. 3d 1111 (2013).

II

Federal employees, the Government acknowledges, have

a right to pursue claims of discrimination in violation of

federal law in federal district court. Nor is there any

doubt that the Federal Circuit lacks authority to adjudi-

cate such claims. See §7703(c) (preserving “right to have

the facts subject to trial de novo by the reviewing court” in

any “case of discrimination” brought under §7703(b)(2)).

Cite as: 582 U. S. ____ (2017) 9

Opinion of the Court

The sole question here disputed: What procedural route

may an employee in Perry’s situation take to gain judicial

review of the MSPB’s jurisdictional disposition of a com-

plaint that alleges adverse action taken under the CSRA

in whole or in part due to discrimination proscribed by

federal law?

The Government argues, and the dissent agrees, that

employees, situated as Perry is, must split their claims,

appealing MSPB nonappealability rulings to the Federal

Circuit while repairing to the district court for adjudica-

tion of their discrimination claims. As Perry sees it, one

stop is all he need make. Exclusively competent to adjudi-

cate “[c]ases of discrimination,” §7703(b)(2), the district

court alone can resolve his entire complaint, Perry urges;

the CSRA, he maintains, forces no bifurcation of his case.

Section 7702(a)(1), the Government contends, marks a

case as mixed only if the employee “has been affected by

an action which the employee . . . may appeal to the

[MSPB].” Brief for Respondent 15, 17–19, 21. An MSPB

finding of nonappealability removes a case from that

category, the Government asserts, and hence, from the

purview of “[c]ases of discrimination” described in

§7703(b)(2). Id., at 21. Only this reading of the CSRA’s

provisions on judicial review—one ordering Federal Cir-

cuit review of any and all MSPB appealability determina-

tions—the Government maintains, can ensure nationwide

uniformity in answering questions arising under the

CSRA. Id., at 26–32.

Perry emphasizes in response that §7702(a)(1)(A)’s

language, delineating cases in which an employee “has

been affected by an action which the employee . . . may

appeal to the [MSPB],” is not confined to cases an em-

ployee may successfully appeal to the Board. Brief for Peti-

tioner 19. The MSPB’s adverse ruling on the merits of his

claim that the settlement was coerced, Perry argues, “did

not retroactively divest the MSPB of jurisdiction to render

10 PERRY v. MERIT SYSTEMS PROTECTION BD.

Opinion of the Court

that decision.” Id., at 21. The key consideration, accord-

ing to Perry, is not what the MSPB determined about

appealability; it is instead the nature of an employee’s

claim that he had been “affected by an action [appealable]

to the [MSPB]” (here, suspension for more than 14 days

and involuntary removal, see §7512(1), (2)). See id., at 11,

23–24. Perry draws support for this argument from our

recognition that “a party [may] establish jurisdiction at

the outset of a case by means of a nonfrivolous assertion of

jurisdictional elements,” Jerome B. Grubart, Inc. v. Great

Lakes Dredge & Dock Co., 513 U. S. 527, 537 (1995). See

Brief for Petitioner 21–22.

Perry, we hold, advances the more sensible reading of

the statutory prescriptions. The Government’s procedure-

jurisdiction distinction, we conclude, is no more tenable

than “the merits-procedure distinction” we rejected in

Kloeckner, 568 U. S., at 51.

A

As just noted, a nonfrivolous allegation of jurisdiction

generally suffices to establish jurisdiction upon initiation

of a case. See Jerome B. Grubart, Inc., 513 U. S., at 537.

See also Bell v. Hood, 327 U. S. 678, 682–683 (1946) (To

invoke federal-question jurisdiction, allegations in a com-

plaint must simply be more than “insubstantial or frivo-

lous,” and “[i]f the court does later exercise its jurisdiction

to determine that the allegations in the complaint do not

state a ground for relief, then dismissal of the case would

be on the merits, not for want of jurisdiction.”). So too

here: whether an employee “has been affected by an

action which [she] may appeal to the [MSPB],” §7702(a)

(1)(A), turns on her well-pleaded allegations. Kloeckner,

EEOC regulations, and Courts of Appeals’ decisions are

corroborative.

We announced a clear rule in Kloeckner: “[M]ixed cases

shall be filed in district court.” 568 U. S., at 50. An em-

Cite as: 582 U. S. ____ (2017) 11

Opinion of the Court

ployee brings a mixed case, we explained, when she “com-

plains of a personnel action serious enough to appeal to

the MSPB,” e.g., suspension for more than 14 days,

§7512(2), “and alleges that the action was based on dis-

crimination.” Id., at 44 (emphasis deleted). The key to

district court review, we said, was the employee’s “clai[m]

that an agency action appealable to the MSPB violates an

antidiscrimination statute listed in §7702(a)(1).” Id., at 56

(emphasis added).

EEOC regulations, see supra, at 3, are in accord: The

defining feature of a “mixed case appeal,” those regula-

tions instruct, is the employee’s “alleg[ation] that an ap-

pealable agency action was effected, in whole or in part,

because of discrimination.” 29 CFR §1614.302(a)(2) (2016)

(emphasis added). Several Courts of Appeals have simi-

larly described mixed-case appeals as those alleging an

adverse action subject to MSPB jurisdiction taken, in

whole or in part, because of unlawful discrimination. See,

e.g., Downey v. Runyon, 160 F. 3d 139, 143 (CA2 1998)

(“Mixed appeals to the MSPB are those appeals alleging

an appealable action affected in whole or in part by pro-

hibited discrimination.” (emphasis added)); Powell, 158

F. 3d, at 597 (defining mixed-case appeal as “an appeal

alleging both a Board-jurisdictional agency action and a

claim of unlawful discrimination” (emphasis added)).

See also Conforto, 713 F. 3d, at 1126–1127, n. 5 (Dyk, J.,

dissenting).4

Because Perry “complain[ed] of a personnel action seri-

ous enough to appeal to the MSPB” (in his case, a 30-day

suspension and involuntary removal, see supra, at 6;

——————

4 Our interpretation is also consistent with another CSRA provision,

§7513(d), which provides that “[a]n employee against whom an action is

taken under this section is entitled to appeal to the . . . Board.” Be-

cause the “entitle[ment] to appeal” conferred in §7513(d) must be

determined before an appeal is filed, such a right cannot depend on the

outcome of the appeal.

12 PERRY v. MERIT SYSTEMS PROTECTION BD.

Opinion of the Court

§7512(1), (2)) and “allege[d] that the [personnel] action

was based on discrimination,” he brought a mixed case.

Kloeckner, 568 U. S., at 44.5 Judicial review of such a case

lies in district court. Id., at 50, 56.

B

The Government rests heavily on a distinction between

MSPB merits and procedural decisions, on the one hand,

and the Board’s jurisdictional rulings, on the other.6 The

distinction has multiple infirmities.

“If Congress had wanted to [bifurcate judicial review,]

send[ing] merits decisions to district court and procedural

dismissals to the Federal Circuit,” we observed in Kloeck-

ner, “it could just have said so.” Id., at 52. The same

observation could be made about bifurcating judicial re-

view here, sending the MSPB’s merits and procedural

decisions to district court, but its jurisdictional dismissals

to the Federal Circuit.7

——————

5 If,as the dissent and the Government argue, see post, at 8–10; Brief

for Respondent 19–26, 33–35, Perry’s case is not “mixed,” one can only

wonder what kind of case it is, surely not one asserting rights under the

CSRA only, or one invoking only antidiscrimination law. See supra, at

1–2. This is, of course, a paradigm mixed case: Perry alleges serious

personnel actions (suspension and forced retirement) caused in whole

or in part by prohibited discrimination. So did the employee in Kloeck-

ner. She alleged that her firing (a serious personnel action) was based

on discrimination. See 568 U. S., at 47. Thus Perry, like Kloeckner,

well understood what the term “mixed case” means.

6 Notably, the dissent ventures no support for the principal argument

made by the Government, i.e., that MSPB jurisdictional dispositions

belong in the Federal Circuit, procedural and merits dispositions, in

district court.

7 As Judge Dyk, dissenting in Conforto v. Merit Systems Protection

Bd., 713 F. 3d 1111 (CA Fed. 2013), pointed out: “[W]here Congress

intended to distinguish between different types of Board decisions, it

did so expressly.” Id., at 1124, n. 1 (citing §3330b(b) (“An election

under this section may not be made . . . after the [MSPB] has issued a

judicially reviewable decision on the merits of the appeal.” (emphasis

added)); §7703(a)(2) (“The Board shall be named respondent in any

Cite as: 582 U. S. ____ (2017) 13

Opinion of the Court

The Government’s attempt to separate jurisdictional

dismissals from procedural dismissals is newly devised.

In Kloeckner, the Government agreed with the employee

that there was “no basis” for a procedure-jurisdiction

distinction. Brief for Respondent, O. T. 2012, No. 11–184,

p. 25, n. 3; see Reply to Brief in Opposition, O. T. 2012, No.

11–184, pp. 1–2 (stating employee’s agreement with the

Government that procedural and jurisdictional dismissals

should travel together). Issues of both kinds, the Govern-

ment there urged, should go to the Federal Circuit. Draw-

ing such a distinction, the Government observed, would be

“difficult and unpredictable.” Brief in Opposition in

Kloeckner, O. T. 2012, No. 11–184, p. 15 (internal quota-

tion marks omitted). Now, in light of our holding in

Kloeckner that procedural dismissals should go to district

court, the Government has changed course, contending

that MSPB procedural and jurisdictional dismissals

should travel different paths.8

A procedure-jurisdiction distinction for purposes of

determining the court in which judicial review lies, as both

——————

proceeding brought pursuant to this subsection, unless the employee

. . . seeks review of a final order or decision on the merits . . . .” (empha-

sis added))).

8 This is not the first time the Government has changed its position.

Before the Federal Circuit in Ballentine v. Merit Systems Protection

Bd., 738 F. 2d 1244 (1984), the Government moved to transfer to

district court an appeal challenging a jurisdictional dismissal by the

MSPB. See id., at 1245. The Government argued that “even a question

of the Board’s jurisdiction to hear an attempted mixed case appeal must

be addressed by a district court.” Id., at 1247 (internal quotation marks

omitted). Rejecting the Government’s position, the Federal Circuit

concluded that it could review MSPB decisions on “procedural or

threshold matters, not related to the merits of a discrimination claim.”

Ibid. In Kloeckner, we disapproved the Federal Circuit’s holding with

respect to MSPB procedural dismissals. 568 U. S., at 50, 56. Today we

disapprove Ballentine’s holding with respect to jurisdictional dismis-

sals, thereby adopting precisely the position advanced by the Govern-

ment in that case.

14 PERRY v. MERIT SYSTEMS PROTECTION BD.

Opinion of the Court

parties recognized in Kloeckner, would be perplexing and

elusive. If a 30-day suspension followed by termination

becomes nonappealable to the MSPB when the Board

credits a release signed by the employee, one may ask why

a determination that the employee complained of such

adverse actions (suspension and termination) too late, i.e.,

after a Board-set deadline, does not similarly render the

complaint nonappealable. In both situations, the Board

disassociates itself from the case upon making a threshold

determination. This Court, like others, we note, has some-

times wrestled over the proper characterization of timeli-

ness questions. Compare Bowles v. Russell, 551 U. S. 205,

209–211, 215 (2007) (timely filing of notice of appeal in

civil cases is “jurisdictional”), with id., at 217–219 (Souter,

J., dissenting) (timeliness of notice of appeal is a proce-

dural issue).

Just as the proper characterization of a question as

jurisdictional rather than procedural can be slippery, the

distinction between jurisdictional and merits issues is not

inevitably sharp, for the two inquiries may overlap. See

Shoaf v. Department of Agriculture, 260 F. 3d 1336, 1341

(CA Fed. 2001) (“recogniz[ing] that the MSPB’s jurisdic-

tion and the merits of an alleged involuntary separation

are inextricably intertwined” (internal quotation marks

omitted)). This case fits that bill. The MSPB determined

that it lacked jurisdiction over Perry’s civil-service claims

on the ground that he voluntarily released those claims

by entering into a valid settlement with his employing

agency, the Census Bureau. See App. to Pet. for Cert. 27a.9

——————

9 In civil litigation, a release is an affirmative defense to a plaintiff’s

claim for relief, not something the plaintiff must anticipate and negate

in her pleading. See Fed. Rule Civ. Proc. 8(c)(1) (listing among affirma-

tive defenses “release” and “waiver”); Newton v. Rumery, 480 U. S. 386,

391 (1987). In that light, the MSPB’s jurisdiction should be determined

by the adverse actions Perry asserts, suspension and forced retirement;

the settlement releasing Perry’s claims would figure as a defense to his

Cite as: 582 U. S. ____ (2017) 15

Opinion of the Court

But the validity of the settlement is at the heart of the

dispute on the merits of Perry’s complaint. In essence, the

MSPB ruled that it lacked jurisdiction because Perry’s

claims fail on the merits. See Shoaf, 260 F. 3d, at 1341 (If

it is established that an employee’s “resignation or retire-

ment was involuntary and thus tantamount to forced

removal,” then “not only [does the Board] ha[ve] jurisdic-

tion, but also the employee wins on the merits and is

entitled to reinstatement.” (internal quotation marks

omitted)). See also Conforto, 713 F. 3d, at 1126 (Dyk, J.,

dissenting) (“[I]t cannot be that [the Federal Circuit]

lack[s] jurisdiction to review the ‘merits’ of mixed cases

but nevertheless may review ‘jurisdictional’ issues that are

identical to the merits . . . .”).10

Distinguishing between MSPB jurisdictional rulings

and the Board’s procedural or substantive rulings for

purposes of allocating judicial review authority between

district court and the Federal Circuit is problematic for a

further reason: In practice, the distinction may be un-

workable. The MSPB sometimes rules on alternate

grounds, one typed “jurisdictional,” another either proce-

dural or substantive. See, e.g., Davenport v. Postal Ser-

vice, 97 MSPR 417 (2004) (dismissing “for lack of jurisdic-

tion and as untimely filed” (emphasis added)). To which

court does appeal lie? Or, suppose that the Board ad-

dresses a complaint that encompasses multiple claims,

dismissing some for want of jurisdiction, others on proce-

dural or substantive grounds. See, e.g., Donahue v. Postal

Service, 2006 WL 859448, *1, *3 (ED Pa., Mar. 31, 2006).

Tellingly, the Government is silent on the proper channel-

——————

complaint, it would not enter into the determination whether the Board

has jurisdiction over his claims.

10 If a reviewing court “agree[d] with the Board’s assessment,” then

Perry would indeed have “lost his chance to pursue his . . . discrimina-

tion claim[s],” post, at 3, for those claims would have been defeated had

he voluntarily submitted to the agency’s action.

16 PERRY v. MERIT SYSTEMS PROTECTION BD.

Opinion of the Court

ing of appeals in such cases.

Desirable as national uniformity may be,11 it should not

override the expense, delay, and inconvenience of requir-

ing employees to sever inextricably related claims, resort-

ing to two discrete appellate forums, in order to safeguard

their rights. Perry’s comprehension of the complex statu-

tory text, we are persuaded, best serves “[t]he CSRA’s

objective of creating an integrated scheme of review[,

which] would be seriously undermined” by “parallel litiga-

tion regarding the same agency action.” Elgin, 567 U. S.,

at 14. See also United States v. Fausto, 484 U. S. 439,

444–445 (1988).12 Perry asks us not to “tweak” the stat-

——————

11 In Kloeckner, we rejected the Government’s national uniformity

argument. See 568 U. S., at 55–56, n. 4. “When Congress passed the

CSRA, the Federal Circuit did not exist,” we observed, so uniformity did

not then figure in Congress’ calculus. Id., at 56, n. 4. Moreover, even

under the Government’s reading, “many cases involving federal em-

ployment issues [would be resolved] in district court. If the MSPB

rejects on the merits a complaint alleging that an agency violated the

CSRA as well as an antidiscrimination law, the suit will come to

district court for a decision on both questions.” Ibid.

12 In both Elgin v. Department of Treasury, 567 U. S. 1 (2012), and

United States v. Fausto, 484 U. S. 439 (1988), we rejected employees’

attempts to divide particular issues or claims among review forums. In

Elgin, a federal employee opted not to seek review of an MSPB ALJ’s

decision, either before the full Board or in the Federal Circuit; he

instead brought in District Court, in the first instance, a constitutional

challenge to an agency personnel action. 567 U. S., at 7–8. We con-

cluded that an employee with civil-service claims must follow the

CSRA’s procedures and may not bring a standalone constitutional

challenge in district court. Id., at 8. In Fausto, a federal employee with

CSRA claims filed an action in the United States Claims Court under

the Back Pay Act of 1966. 484 U. S., at 443. We determined that the

employee could not bring his action under the Back Pay Act because the

CSRA provided “the comprehensive and integrated review scheme.”

See id., at 454. Contrary to the dissent’s suggestion, see post, at 10,

neither case indicated that the Federal Circuit, as opposed to district

court, is the preferred forum for judicial review of all CSRA claims.

Rather, both decisions emphasized the benefits of an integrated review

scheme and the problems associated with bifurcating consideration of a

Cite as: 582 U. S. ____ (2017) 17

Opinion of the Court

ute, see post, at 1, but to read it sensibly, i.e., to refrain

from reading into it the appeal-splitting bifurcation sought

by the Government. Accordingly, we hold: (1) the Federal

Circuit is the proper review forum when the MSPB dis-

poses of complaints arising solely under the CSRA; and (2)

in mixed cases, such as Perry’s, in which the employee (or

former employee) complains of serious adverse action

prompted, in whole or in part, by the employing agency’s

violation of federal antidiscrimination laws, the district

court is the proper forum for judicial review.

* * *

For the reasons stated, the judgment of the United

States Court of Appeals for the District of Columbia Cir-

cuit is reversed, and the case is remanded for further

proceedings consistent with this opinion.

It is so ordered.

——————

single matter in different forums. See 567 U. S., at 13–14; 484 U. S., at

444–445. It is the dissent’s insistence on bifurcated review, therefore,

that “Elgin and Fausto warned against,” post, at 10.

Cite as: 582 U. S. ____ (2017) 1

GORSUCH, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 16–399

_________________

ANTHONY W. PERRY, PETITIONER v. MERIT

SYSTEMS PROTECTION BOARD

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

[June 23, 2017]

JUSTICE GORSUCH, with whom JUSTICE THOMAS joins,

dissenting.

Anthony Perry asks us to tweak a congressional stat-

ute—just a little—so that it might (he says) work a bit

more efficiently. No doubt his invitation is well meaning.

But it’s one we should decline all the same. Not only is

the business of enacting statutory fixes one that belongs to

Congress and not this Court, but taking up Mr. Perry’s

invitation also seems sure to spell trouble. Look no fur-

ther than the lower court decisions that have already

ventured where Mr. Perry says we should follow. For

every statutory “fix” they have offered, more problems

have emerged, problems that have only led to more “fixes”

still. New challenges come up just as fast as the old ones

can be gaveled down. Respectfully, I would decline Mr.

Perry’s invitation and would instead just follow the words

of the statute as written.

Our case concerns the right of federal employees to

pursue their employment grievances under the Civil Ser-

vice Reform Act. Really, it concerns but a small aspect of

that right. Everyone agrees that employees may contest

certain adverse employment actions—generally serious

ones like dismissals—before the Merit Systems Protection

Board. See 5 U. S. C. §§7701–7702, 7512–7513. Everyone

agrees, too, that employees are generally entitled to seek

2 PERRY v. MERIT SYSTEMS PROTECTION BD.

GORSUCH, J., dissenting

judicial review of the Board’s decisions. See §7703. The

only question we face today is where. And on that ques-

tion, the Act provides clear directions.

First, the rule. The Act says that an employee’s appeal

usually “shall be filed in . . . the Federal Circuit,”

§7703(b)(1)(A), which then applies a deferential, APA-style

standard of review familiar to administrative law,

§7703(c). No doubt this makes sense, too, for Congress

established the Federal Circuit in no small part to ensure

a uniform case law governs Executive Branch personnel

actions and guarantees the equal treatment of civil serv-

ants without regard to geography. See United States v.

Fausto, 484 U. S. 439, 449 (1988).

Second, the exception. Congress recognized that some-

times agencies taking adverse employment actions against

employees violate not just federal civil service laws, but

also federal antidiscrimination laws. Usually, of course,

employees who wish to pursue discrimination claims in

federal district court must first exhaust those claims in

proceedings before their employing agency. See, e.g., 42

U. S. C. §2000e–16(c). But the Act provides another op-

tion. Employees affected by adverse employment actions

that trigger the Act’s jurisdiction may (but need not) elect

to exhaust their discrimination claims before the Board.

See 5 U. S. C. §7702(a). They also may ask the Board to

review discrimination claims already exhausted before

their employing agencies, and in this way obtain an addi-

tional layer of administrative review. See ibid. In §7702

of the Act, Congress proceeded to set forth the rules the

Board must apply in reviewing these cases of discrimina-

tion. And it then said that “[c]ases of discrimination

subject to the provisions of section 7702” are exempt from

the default rule of Federal Circuit review and instead

“shall be filed” in district court “under” specified antidis-

crimination statutes like Title VII or the ADEA.

§7703(b)(2). At that point, district courts are instructed to

Cite as: 582 U. S. ____ (2017) 3

GORSUCH, J., dissenting

engage in de novo factfinding, §7703(c), not APA-style

judicial review, just as they would in any other discrimi-

nation lawsuit.

Putting these directions together, the statutory scheme

is plain. Disputes arising under the civil service laws

head to the Federal Circuit for deferential review; discrim-

ination cases go to district court for de novo review. Con-

gress allowed employees an elective option to bring their

discrimination claims to the Board, but didn’t allow this

option to destroy the framework it established for the

resolution of civil service questions. These rules provide

straightforward direction to courts and guidance to federal

employees who often proceed pro se.

These rules also tell us all we need to know to resolve

our case. Construing his pro se filings liberally, Mr. Perry

pursued civil service and discrimination claims before the

Board without first exhausting his discrimination claim

before his own agency. The Board held that it couldn’t

hear Mr. Perry’s claims because he hadn’t suffered an

adverse employment action sufficient to trigger its juris-

diction under the Act. Mr. Perry now seeks to contest the

Board’s assessment of its jurisdiction and win a review

there that so far he’s been denied. See, e.g., Brief for

Petitioner 24. No doubt, too, he wants the chance to pro-

ceed on the merits before the Board for good reason: A

victory there is largely unappealable by the government.

See 5 U. S. C. §§7701, 7703(d); see also Brief for Respond-

ent 34. And because the scope of the Board’s jurisdiction

is a question of civil service law, Mr. Perry must go to the

Federal Circuit for his answer. If that court agrees with

Mr. Perry about the scope of the Board’s authority, he can

return to the Board and argue the merits of his two

claims. If instead the court agrees with the Board’s as-

sessment of its powers, then Mr. Perry still hasn’t lost his

chance to pursue his remaining discrimination claim, for

he may seek to exhaust that claim in the normal agency

4 PERRY v. MERIT SYSTEMS PROTECTION BD.

GORSUCH, J., dissenting

channels and proceed to district court.

Mr. Perry, though, invites us to adopt a very different

regime, one that would have the district court review the

Board’s ruling on the scope of its jurisdiction. Having to

contest Board rulings on civil service and discrimination

issues in different courts, he says, is a hassle. So, he

submits, we should fix the problem by allowing civil ser-

vice law questions to proceed to district court whenever an

employee pursues a case of discrimination before the

Board. In support of his proposal, he points us to a line of

lower court cases associated with Williams v. Department

of Army. And there, indeed, the Federal Circuit adopted a

fix much like what Mr. Perry now proposes: allowing civil

service claims to tag along to district court with discrimi-

nation claims because, in its judgment, “[f ]rom the stand-

point of judicial economy, consideration of all issues by a

single tribunal is clearly preferable.” 715 F. 2d 1485, 1490

(1983) (en banc).

Mr. Perry’s is an invitation I would run from fast. If a

statute needs repair, there’s a constitutionally prescribed

way to do it. It’s called legislation. To be sure, the de-

mands of bicameralism and presentment are real and the

process can be protracted. But the difficulty of making

new laws isn’t some bug in the constitutional design: it’s

the point of the design, the better to preserve liberty.

Besides, the law of unintended consequences being what it

is, judicial tinkering with legislation is sure only to invite

trouble. Just consider the line of lower court authority

Mr. Perry asks us to begin replicating now in the U. S.

Reports. Having said that district courts should some-

times adjudicate civil service disputes, these courts have

quickly and necessarily faced questions about how and

when they should do so. And without any guidance from

Congress on these subjects, the lower courts’ solutions

have only wound up departing further and further from

statutory text—and invited yet more and more questions

Cite as: 582 U. S. ____ (2017) 5

GORSUCH, J., dissenting

still. A sort of rolling, case-by-case process of legislative

amendment.

Take this one. Recall that the statute says that de novo

standard of review applies to cases filed in district court.

See 5 U. S. C. §7703(c). But everyone agrees that stand-

ard is poorly adapted to the review of administrative civil

service decisions. So what’s to be done with civil service

disputes that tag along to district court? Rather than see

the problem as a clue things have gone awry, lower courts

following Williams have suggested that maybe civil service

claims should be assessed under deferential standards of

review the Act prescribes only for (yes) Federal Circuit

cases. And today Mr. Perry encourages us to follow suit

too. See Brief for Petitioner 17, n.; Sher v. Department of

Veterans Affairs, 488 F. 3d 489, 499 (CA1 2007), cert.

denied, 552 U. S. 1309 (2008).

But that’s just the beginning. The statute allows only

cases “filed under” certain specified federal antidiscrimi-

nation statutes to proceed to district court. Those laws (of

course) prescribe remedies to vindicate harms associated

with discrimination, including equitable relief and damages.

See, e.g., 29 U. S. C. §633a(c). But what remedies can

or should a district court afford a plaintiff in a run-of-the-

mill civil service dispute that lands there? Might a plain-

tiff be forced to litigate in the district court only to be told

at the end that no remedial authority exists? May a dis-

trict court fashion some remedy in the absence of a statu-

tory mandate to do so? Should it only adopt APA-style

remedies prescribed by the Act for (again) the Federal

Circuit? Who knows.

Answer all those questions and still more arise. What

happens if the Board fully remedies an employee’s dis-

crimination claim, but rejects his simultaneously litigated

civil service dispute? Should the employee go to district

court with a stand-alone civil service complaint, to be

nominally “filed” and adjudicated “under” a federal anti-

6 PERRY v. MERIT SYSTEMS PROTECTION BD.

GORSUCH, J., dissenting

discrimination statute? Or has by this point the case

somehow transformed into one that should be sent to the

Federal Circuit? Williams itself anticipated these particu-

lar problems but (notably) declined to take any stab at

answering them. See 715 F. 2d, at 1491.

Still more and even curiouser questions follow. In some

cases a district court will find the employee’s discrimina-

tion claim meritless. When that happens, what should the

district court do with a tag along civil service claim? Some

lower courts after Williams have suggested that cases like

these should be transferred back to the Federal Circuit in

the “interests of judicial economy.” Nater v. Riley, 114

F. Supp. 2d 17, 29 (PR 2000). But isn’t it more than a

little strange that an employee (often proceeding pro se, no

less) should be sent to district court only to be bounced

back to the Federal Circuit—with each trip undertaken in

the name of “judicial economy”?

And speaking of judicial economy, you might wonder

what happened to the (no doubt efficient) policy Congress

itself articulated when it declared that civil service issues

should be decided by the Federal Circuit so they might be

subject to a uniform body of appellate case law. See

Fausto, 484 U. S., at 449; see also Elgin v. Department of

Treasury, 567 U. S. 1, 13–14 (2012). In an effort to

achieve a simulacrum of that statutory command, one

Federal Circuit judge has suggested that the regional

circuits hearing tag along civil service issues should defer

to Federal Circuit interpretations of civil service laws,

much as federal courts defer to state courts on matters of

state law when sitting in diversity. See Williams, supra,

at 1492–1493 (Nichols, J., concurring). Call it a sort of

Erie doctrine for the Federal Circuit—if, of course, one

lacking any basis in federalism, not to mention the statu-

tory text.

By this point, you might wonder too if accepting Mr.

Perry’s invitation will even wind up saving him (or those

Cite as: 582 U. S. ____ (2017) 7

GORSUCH, J., dissenting

like him) any hassle at all. Not only because of all the

complications that arise from accepting his invitation. But

also because, regardless which court hears his case, Mr.

Perry should wind up in the same place anyway. If the

reviewing court (whichever court that may be) finds that

the Board was wrong and it actually possessed jurisdiction

over his civil service and discrimination claims, presum-

ably the court will seek to send Mr. Perry back to the Board

to adjudicate those claims. See Reply Brief 18 (agreeing

with this point). Meanwhile, if the reviewing court con-

cludes that the Board was right and it lacked jurisdiction

over Mr. Perry’s claims, presumably the court will require

him to exhaust his remaining discrimination claim in

normal agency channels before litigating it in court. So

even if we take up Mr. Perry’s ambitious invitation to

overhaul the statute, is it even clear that we would save

him and those like him any hassle at all? Or might future

courts respond to this development with a yet further

statutory rewrite, suggesting next that claimants should

be allowed to proceed in district court on the merits of both

their civil service and discrimination claims? Even where

(as here) the discrimination claim remains unexhausted

before any agency and the civil service claim isn’t one even

the Board could hear?

Mr. Perry’s proposal for us may be seriously atextual

and practically unattractive, but perhaps it has one thing

going for it, he says. While we of course owe no fealty to

Williams or other lower court opinions, and are free to

learn from, rather than repeat, their misadventures, Mr.

Perry suggests our decision in Kloeckner v. Solis, 568 U. S.

41 (2012), requires us to rule for him. Whatever we think

about the statute’s plain terms, he says, we are bound by

precedent to send him to district court all the same.

But I just don’t see in Kloeckner what Mr. Perry would

have us find there. This Court was not asked to decide—

and did not decide—whether issues arising under the civil

8 PERRY v. MERIT SYSTEMS PROTECTION BD.

GORSUCH, J., dissenting

service laws go to district court. Rather, we were asked

to answer the much more prosaic question where an em-

ployee seeking to pursue only a discrimination claim should

proceed. See Pet. for Cert. in Kloeckner v. Solis, O. T.

2012, No. 11–184, p. i (“If the [Board] decides a mixed case

without determining the merits of the discrimination

claim, is the court with jurisdiction over that claim the

Court of Appeals for the Federal Circuit or a district

court?” (emphasis added)). And this Court simply (and

quite rightly) responded to that question by holding that

“[a] federal employee who claims that an agency action

appealable to the [Board] violates an antidiscrimination

statute . . . should seek judicial review in district court, not

in the Federal Circuit . . . whether the [Board] decided her

case on procedural grounds or instead on the merits.”

Kloeckner, 568 U. S., at 56 (emphasis added). Nothing

about the question presented or holding suggests that a

claimant wishing to challenge a Board ruling under the

civil service laws may also proceed in district court.

Mr. Perry replies that Kloeckner endorsed the idea that

something called “mixed cases” should go to district court.

But that term does not mean what he thinks it means.

The phrase “mixed case” appears nowhere in the statute.

Instead, it is but “lingo [from] the applicable regulations.”

Id., at 50. And even those regulations don’t say that civil

service questions may go to district court. Instead, the

regulations use the term “mixed cases” to describe admin-

istrative challenges where the employee both “complains

of a personnel action serious enough to appeal to [the

Board] and alleges that the action was based on discrimi-

nation.” Id., at 44 (second emphasis added); see also 29

CFR §1614.302(a)(2) (2016). The regulations thus simply

acknowledge that some administrative matters are both

sufficient to trigger the Board’s authority and raise ques-

tions addressed by federal antidiscrimination statutes.

They say nothing about what goes to district court.

Cite as: 582 U. S. ____ (2017) 9

GORSUCH, J., dissenting

Neither did Kloeckner redefine the term “mixed case” in

some novel way. After discussing the regulatory definition

of “mixed cases,” the decision proceeds to say just this:

“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. Ergo, mixed

cases shall be filed in district court.” 568 U. S., at 50

(some brackets in original; emphasis added).

In context, it seems clear that this passage only seeks to

restate the statute, using the term “mixed cases” as short-

hand for cases that go to district court under §7703(b)(2).

And from that statute we know that only “cases of discrim-

ination . . . filed under” certain specified federal antidis-

crimination statutes go to district court—no more, no less.

Nothing in this passage suggests the Court meant to

rewrite a regulatory term as a tool to undo a statute.

Now, admittedly, a footnote in Kloeckner did seem to go

a step farther and assume Williams’ view that civil service

claims may tag along with discrimination claims to district

court. Kloeckner, 568 U. S., at 55–56, n. 4. But even by its

terms such an assumption wouldn’t help Mr. Perry, for he

isn’t seeking to pursue a discrimination claim in district

court. By his own telling, he is seeking to overturn the

Board’s holding that it lacked jurisdiction to hear his

administrative appeal so he might seek relief there in the

first instance. And that, of course, raises only a question

of civil service law. What’s more, the footnote’s discussion

about Williams is no more than dicta. The footnote ad-

dressed only a policy argument from the government and

said that argument failed both under Williams and for

other reasons “[i]n any event.” 568 U. S., at 56, n. 4. As

near as I can tell, then, Mr. Perry would have us upend a

carefully crafted statutory scheme on the strength of a

10 PERRY v. MERIT SYSTEMS PROTECTION BD.

GORSUCH, J., dissenting

comment in one sentence of one footnote offered in reply to

a policy argument that failed for other reasons anyway.

Full respect for stare decisis does not demand so much

from us. To the contrary, this Court has long made clear

that where, as here, we have not “squarely addressed [an]

issue, and have at most assumed [one side of it to be cor-

rect], we are free to address the issue on the merits.”

Brecht v. Abrahamson, 507 U. S. 619, 631 (1993); see also

Legal Services Corporation v. Valazquez, 531 U. S. 533,

537 (2001) (Scalia, J., dissenting) (“Judicial decisions do

not stand as binding ‘precedent’ for points that were not

raised, not argued, and hence not analyzed”).

Notably, even the Court today doesn’t read Kloeckner as

holding that all civil service claims and issues must pro-

ceed to district court after a discrimination claim is pre-

sented to the Board. Instead, the Court says that result is

justified in large measure because it will “best serv[e]” the

statute’s “ ‘objective of creating an integrated scheme of

review[, which] would be seriously undermined’ by ‘paral-

lel litigation.’ ” Ante at 16 (quoting Elgin, 567 U. S., at 14).

Yet, the very case the Court quotes for its account about

the statute’s purpose (Elgin which, in turn, quotes Fausto)

speaks of Congress’ desire to provide an “ ‘integrated

scheme of administrative and judicial review’ ” for civil

service disputes that “would be seriously undermined” if

“employees [had] the right to challenge employing agency

actions in district court across the country,” and regional

district and circuit courts could pass on such matters.

Elgin, supra, at 13–14 (quoting Fausto, 484 U. S., at 445).

And, respectfully, the result Elgin and Fausto warned

against is exactly the result the Court’s opinion seems sure

to guarantee. Rather than pursue the congressional policy

discussed in those cases, the Court seems more nearly

headed in the opposite direction.

Beyond its claim about the statute’s purpose, the Court

offers little in the way of a traditional statutory interpre-

Cite as: 582 U. S. ____ (2017) 11

GORSUCH, J., dissenting

tation. It does not explain how the result it reaches

squares with the statute’s text and structure, or grapple

with the arguments presented here on those counts. The

Court does not explain, for example, how exactly a civil

service dispute might be said to be “filed under” a federal

antidiscrimination statute, what the standard of review

might apply in such a matter (nowhere discussed in the

statute), or what the remedial powers of the district court

could be in these circumstances. And it remains far from

obvious whether the Court’s eventual answers to questions

like these will wind up yielding a regime better for em-

ployees, or instead one just different or even a good deal

worse.

Indeed, the only answer the Court supplies to any of the

questions raised above lies in a footnote and seems telling.

There, the Court instructs that Mr. Perry will not be able

to pursue his discrimination claim if the district court

agrees with the Board that it lacked jurisdiction over his

claim. Ante, at 15, n. 10. But this will surely come as a

surprise to Mr. Perry, who tells us he wants to pursue a

federal discrimination claim even if it isn’t one the Board

has jurisdiction to hear. And it comes as a surprise to me

too, for as I’ve described and the government concedes,

nothing in the statute would prevent Mr. Perry from

trying to bring a discrimination claim in district court

after seeking to exhaust it before his employing agency.

See, e.g., Brief for Petitioner 11, 16–17, 28; Brief for Re-

spondent 25; Tr. of Oral Arg. 17.

At the end of a long day, I just cannot find anything

preventing us from applying the statute as written—or

heard any good reason for deviating from its terms. In-

deed, it’s not even clear how overhauling the statute as

Mr. Perry wishes would advance the efficiency rationale

he touts. The only thing that seems sure to follow from

accepting his invitation is all the time and money litigants

will spend, and all the ink courts will spill, as they work

12 PERRY v. MERIT SYSTEMS PROTECTION BD.

GORSUCH, J., dissenting

their way to a wholly remodeled statutory regime. Re-

spectfully, Congress already wrote a perfectly good law. I

would follow it.