Petition for Writ of Certiorari — Anthony Perry, Petitioner v. Gina M. Raimondo, Secretary of Commerce, et al.
Supreme Court briefNov 1, 2024
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1
Supreme Court. U.S.
niro
IN THE
NOV 0 1 2024
OFFICE OF THE CLERK
SUPREME COURT OF THE UNITED STATES
Anthony W. Perry — PETITIONER
vs.
Gina Raimondo et al., - RESPONDENT(S)
ON PETITION FOR A WRIT OF CERTIORARI TO
UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT
(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)
PETITION FOR WRIT OF CERTIORARI
ANTHONY W. PERRY
5907 CROOM STATION ROAD
UPPER MARLBORO, MARYLAND 20772
(301)928-2305
QUESTION(S) PRESENTED
This Court having decided the federal-question jurisdiction of mixed case dismissals
by the MSPB for lack of jurisdiction in this case, Perry v. MSPB S. Ct. 16-399 (2017), that
this case was properly before the MSPB and judicial review occurs in the district court.
Footnote 10 in this Court’s decision in Perry (2017) states, “If a reviewing court agree[d]
with the Board’s assessment [that Perry’s retirement was voluntary],” then Perry would
indeed have lost his chance to pursue his ... discrimination claim[s],” post, at 3, for those
claims would have been defeated had he voluntarily submitted to the agency’s action.”
This.second appeal of the D.C. Circuit Court’s jurisdictional decision in this case presents
the following question:
1. Whether, without having been provided an evidentiary hearing on a
nonfrivolous allegation of coercion before the MSPB, a procedure required by
law, the D. C. Circuit Court of Appeals’ partial decision affirming the district
court’s ruling sustaining that the MSPB properly dismissed Perry’s mixed
case for lack of jurisdiction with prejudice is reconcilable with the Supreme
Court’s jurisdictional decision and processing guidelines in Peiry v. MSPB,
582 U.S. 420 (2017) and unlawfully causes petitioner to have lost his chance
to pursue his ... discrimination claim[s].”
2. Whether, the district court’s decision to dismiss a nonfrivolous allegation of a
discriminatory civil service personnel action for lack of jurisdiction instead of
on the merits as this Court stated in the Perry (2017) decision is a reversible
legal error and violation of appellant’s due process rights that create a
structural error and structural barrier against a federal employee s right to
bring a mixed case appeal to the district court for a prescribed trial de novo
and de novo review.
3. Whether 5 U.S.C. 7702 and 7703 by its plain text language appropriates a
deferential arbitrary and capricious standard of judicial review to a
nonfrivolous allegation of an agency adverse discriminatory civil service
personnel action when an evidentiary hearing required by law was denied at
the MSPB and the Circuit Court fails to order such hearing in the District
Court or whether under any circumstances when, as this Court has decided,
the jurisdiction and the merits of a constructive personnel action are
inextricably intertwined.
LIST OF PARTIES
[ ] All parties appear in the caption of the case on the cover page.
A
[X ] All parties do not appear in the caption of the case on the cover page.
list of all parties to the proceeding in the court whose judgment is the subject
of this petition is as follows:
Brian Digiacomo, Defendant
John Guenther, Defendant
Barbara Fredericks, Defendant
United States of America, Defendant
Ronda J. Brown, Defendant
Adam Chandler, Defendant
David J. Spence, Defendant
Deborah Miron, Defendant
Daniel Turbitt, Defendant
Robert M. Groves, Defendant
Thomas Mesenbourg, Defendant
Brien E. McGrath, Defendant
Terryne F. Murphy, Defendant
Thomas Meerholz, Defendant
Darren Gutschow, Defendant
Roy Castro, Defendant
Tyra Dent Smith, Defendant
John Cunningham, Defendant
Ted Johnson, Defendant
Benjamin Felder, Defendant
Stacy Chalmers. Defendant
Johnny Zuagar, Defendant
Dale R. Reed, Defendant
Patricia Musselman, Defendant
TABLE OF CONTENTS
OPINIONS BELOW.
1
JURISDICTION
2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
3
STATEMENT OF THE CASE
13
REASONS FOR GRANTING THE WRIT
24
CONCLUSION
3a
INDEX TO APPENDICES
APPENDIX A
D.C. Circuit Court of Appeals, Perry v. Raimondo, et al
APPENDIX B
U S. District Court for District of Columbia, Perry v. Raimondo, et al
APPENDIX C
D C Circuit Court of Appeals Order on Petition For Panel Rehearing
APPENDIX D
D,C Circuit Court of Appeals Order on Petition For Rehearing En Banc
APPENDIX E
5 U.S.C 7702 and 7703
APPENDIX F
DC. Circuit Court of Appeals, Perry v. Ross, Order Vacate and Remand
TABLE OF AUTHORITIES CITED
CASES
PAGE NUMBER
Balien tine v. MSPB,
738 F.2d 1244 (Fed. Cir. 1984).....................................
11.26
Ciralsky v. CIA,
355 F.3d 661 (D.C. Cir. 2004).......................................
6, 22, 29
Crane v. Dep’t ofAir Force,
240 F. App’x 415 (Fed. Cir. 2007)................................
13
Daniels v. Donahoe,
No. 0120103252, 2012 WL 2068638 (E.E.O.C. 2012)
.14
Davis v. Dep’t ofArmy,
33 M.S.P.R. 223, 227 (1987)........................................
14
Deines v. Dep t ofEnergy,
98 M.S.P.R. 389 (2005)................................................
5
Douglas v: Veterans Adimn.,
5 M.S.P.R. 280 (1981)..................................
9
Dvorin v. Dep t ofAir Force,
70 M.S.P.R. 407 (1996)............................
10, 22, 25
Fassett v. U.S. Postal Serv.,
85 M.S.P.R. 677 (2000)....................-.......
15
Garcia v. Dep’t ofHomeland Sec.,
437 F.3d 1322 (Fed. Cir. 2006) (en banc)
5, 14
Hayes v. U.S. Gov’t Printing Off.,
684 F.2d 137 (D.C. Cir. 1982).................
6, 12, 28
Kloeckner v. Solis,
568 U.S. 41 (2012)
Locke v U.S. Postal Serv.,
61 M.S.P.R. 283 (1994)
7,8, 9, 11, 17, 18, 24
15
Morris v. Rumsfeld,
420 F.3d 287 (3d Cir. 2005)................
... 12
Motor Vehicle Mfrs. Assn of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
....... 13,26
463 U.S. 29 (1983)..............................
Perry v MSPB,
582 U.S. 420 (2017) (“PerryD ....
4, 5, 9, 17, 24, 25, 29
Perry v. MSPB,
829 F.3d 760 (D.C. Cir. 2016)..........
..... 24
Powell v. Dept, of Del,
158 F.3d 597 (D.C. Cir. 1998)..........
.... 17
Schultz v. U.S. Navy,
810 F.2d 1133 (Fed. Cir. 1987)........
....... 15
Scott v. Johanns,
409 F.3d 466 (D.C. Cir. 2005)..........
.... 12
Susan B. Anthony List v. Dnehaus,
573 U.S. 149 (2014)..........................
......... 12
IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of ceitiorari issue to review the
judgment below.
OPINIONS BELOW
[ ] For cases from federal courts;
The opinion of the United States court of appeals appears at Appendix
A to
the petition and is
> or,
UNKNOWN
[X ] reported at
[ 1 has been designated for publication but is not yet
reported! or, [ ] is unpublished.
The opinion of the United States district court appears at
Appendix B to
the petition and is
; or,
UNKNOWN
[X ] reported at
[ ] has been designated for publication but is not yet
reported; or, l ] is unpublished.
1
JURISDICTION
[X ] For cases from federal courts:
The date on which the United States Court of Appeals decided
. May 14,2024.
—
—
my case was
[ ] No petition for rehearing was timely filed in my case.
[X ] A timely petition for rehearing was denied by the United
States Court of
Appeals on the following date; Aug 6, 2024, and a copy of the order
denying rehearing appears at Appendix C andD
•
[ ] An extension of time to file the petition for a writ of certiorari was granted
to and including (date) on
------------- —------- (date) in
Application No.
A
The jurisdiction of this Court is invoked under 28 U. S. C. §
1254(1).
2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Applicable statutory provisions appear in Appendix E.
3
INTRODUCTION
Pro se Appellant is appealing a second D.C. Circuit Court decision in this
case, this one asking this Court to vacate the D.C. Circuit Court’s opinion affirming
the district court’s affirmation of the MSPB dismissal for lack of jurisdiction with
prejudice and to vacate the Circuit Court’s denial of appellant s motion for summary
reversal of the district court order to brief whether the district court should sustain
the MSPB dismissal for lack of jurisdiction and to vacate the Circuit Court’s denial
of appellant’s motion for summary reversal of the district court’s dismissal of this
mixed case for lack of jurisdiction with prejudice because these lower court decisions
are incompatible and irreconcilable with this Court s decision in Perry v. MSPB, 582
U.S. 420 (2017).
This Court decided in Perry (2017), the federal-question jurisdiction in this
case that the proper court in which to litigate a federal employee s mixed case when
the MSPB dismisses his complaint of a serious adverse employment action and
attributes the action, in whole or in part, to bias based on race, gender, age, or
disability is the district court and provided processing guidelines and questions
needing adjudication to the lower court. Perry v. MSPB, S. Ct. 16-399 (2017) Pp. 917, Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. 1101 et. seq. At that point,
the lower courts lack subject matter authority to render a contravening decision of a
Supreme Court decision. That both the Circuit Court and the District Court
rendered contravening decisions to this Court and did so while violating appellant s
due process and constitutional rights makes those decisions summarily reversible
4
legal errors, and void and unenforceable orders. This Court should summarily
reverse both lower courts, remedy legal errors, and remove structural errors and
barriers caused by an inadequate standard of review for an alleged disciiminatory
and retaliatory adverse civil service personnel action.
Perry v. MSPB, 582 U.S.
420 (2017).
In this Court’s attempt to further clarify adjudication of mixed case appeals
in this case), it decided: 1) Perry made a nonfrivolous allegation of coercion into a
settlement agreement; 2) that Perry therefore brought a mixed case to the MSPB
and the complaint was properly before the MSPB ; 3) that it does not matter what
label the Board assigns to its decision, whether “jurisdictional,” “procedural,” or on
the “merits”, all mixed cases undergo judicial review in the district court; 4) that if
the case is later dismissed by the reviewing court, it should be dismissed on the
merits, not for want of jurisdiction; 5) that the jurisdiction and merits of a
constructive termination are inextricable; 6) that the validity of the settlement
agreement in this case is at the heart of the dispute on the merits of Perry s
complaint; 7) and that “in essence, the MSPB ruled that it lacked jurisdiction
because Perry’s claims fail on the merits.” A nonfrivolous allegation of coercion
into a settlement agreement guarantees appellant an evidentiary hearing. Deines
v. Dep’t of Energy, 98 M.S.P.R, at 395 (2005); Garcia v. Homeland Sec., 437 F.3d
1322, 1324 (Fed. Cir.2006) (en banc).
The Circuit Court transferred the case to the district court where the district
court issued its opinion stating “this court will not reach his discrimination claims
5
either, but instead will affirm the Merit Systems Protection Board decision
dismissing his claims for lack of jurisdiction and subsequently dismissed the entire
case with prejudice. Hayes v. U.S. Gov’t Printing Off., 684 F.2d 137 (D.C. Cii.
1982). The district court did not address any other issues including the validity of
the settlement agreement where this Court stated that the validity of the
settlement agreement was at the heart of the merits of this dispute. Nor did it
dismiss any claims on the merits.
The D. C. Circuit Court affirmed the district court’s dismissal of the entire
case for lack of jurisdiction with prejudice. It is noted that the lack of jurisdiction
and the “with prejudice” label knowingly sets up the entire discrimination case to be
dismissed in the district court even though the Circuit Court was able to check the
box for statutory compliance for mixed case discrimination claims, but in the
manner that guarantees that the discrimination claims will never be adjudicated in
a jury trial de novo. Ciralsky v. CIA, 355 F.3d 661, 669 (D.C. Cir. 2004). In Perry
(2017), this Court decided that if the case, or by inference elements of the case are
dismissed, it should be dismissed on the merits not for want of jurisdiction. This is
irreconcilable with the decision in Perry (2017) and is a legal error. This decision
also injects confusion that requires this Court’s intervention.
This Court reference to this case a “paradigm mixed case”, it should use this
case and take the opportunity to further clarify and remove barriers to a federal
employees right to bring discrimination claims in the same manner as employees in
the private sector. In doing so, it must reconsider the barrier created by a
6
deferential arbitrary and capricious standard of review that is applied to the alleged
discriminatory and retaliatory civil service component of a mixed case which
permits the MSPB and the lower courts to dismiss merit claims without
adjudication on the merits. That deference denies fundamental fairness, when as
here the administrative record is intentionally left incomplete in the administrative
process. A deferential standard of review appears nowhere in the plain text of the
statutory language applicable to the mixed case appeal processing exception of an
alleged discriminatory adverse civil service personnel action. 5 U.S.C. 7702 and
7703.
Federal employees are protected by anti-discrimination laws, such as Title
VII of the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in
Employment Act of 1967 (“ADEA”). Title VII prohibits employment discrimination
on the basis of race, color, religion, sex, or national origin, see 42 U.S.C. § 2000e-16;
while the ADEA prohibits discrimination on the basis of age, see 29 U.S.C. § 633a.
Federal employees are also protected by the CSRA, which “establishes a
framework for evaluating personnel actions taken against federal employees.
Moeckner v Solis, 568 U.S. 41, 44 (2012). Under the CSRA, an agency may not.
take a “particularly serious” adverse employment action against an employee
such as a removal, a suspension for more than 14 days, or a demotion, id. at 44 &
n.i; see 5 U.S.C. § 7512 — unless doing so would “promote the efficiency of the
service,” 5 U.S.C. § 7513(a). The agency must demonstrate that the employee
“engaged in misconduct,” King v. Frazier, 77 F.3d 1361, 1363 (Fed. Cir. 1996), and
7
that the adverse action appropriately promotes the efficiency of the sendee after
accounting for various factors. See Douglas v. Veterans Admin., 5 M.S.P.R. 280,
304-06 (1981). When an agency takes a serious adverse employment action, “the
affected employee has a right to appeal the agency s decision to the MSPB, an
independent adjudicator of federal employment disputes.” Kloeckner, 568 U.S. at
44; seed U.S.C. § 7513(d). The employee might argue, for example, that they did
not commit any misconduct, see King, 77 F.3d at 1363, or that the adverse action
was too harsh and thus unnecessary to promote the efficiency of the service, see
Douglas, 5 M.S.P.R. at 304-06.
Sometimes, a federal employee alleges unlawful discrimination and a serious
adverse employment action: The employee might allege, for example, that they
were terminated based on their race. That federal employee “may proceed in a
variety of ways.” Kloeckner, 568 U.S. at 45. The employee may bring a standard
claim under Title VII by exhausting administrative remedies in the agency and
./
then filing a case in the district court. See Al-Saffy, 827 F.3d at 85-89. Or instead,
they may bring the case before the MSPB as a mixed case, which combines a claim
under a federal anti-discrimination statute with a challenge to a serious adverse
employment action under the CSRA. Kloeckner, 568 U.S. at 50 ( [Mjixed cases are
“those appealable to the MSPB and alleging discrimination.”); 29 C.F.R. §
1614.302(a)(2) (defining a “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”). In a mixed case, the employee can appeal the adverse action
8
directly to the MSPB, thereby “forgoing the agency’s own system for evaluating
discrimination charges.” Kloeckner, 568 U.S. at 45. Alternatively, the employee
may file an EEO complaint with the agency and then appeal an unfavorable
outcome to the MSPB. Id. (citing 5 CFR § 1201.154(b); 29 CFR § 1614.302(d)(1)(D).
If the employee chooses to proceed in a mixed case before the MSPB, and the
personnel action is upheld, the employee may seek review of the MSPB s ruling by a
United States District Court. Perry v. MSPB., 582 U.S. 420, 432 (2017).
Legal and structural barriers remain to a federal employee’s right to district
court litigation on the merits of a mixed case, a “case of discrimination”, which
includes an alleged discriminatory agency adverse civil service personnel action
claim, and the underlying discrimination claims under the provisions of the section
7702 and 7703. That may be due to at least two factors: 1) an MSPB dismissal for
lack of jurisdiction and the denial of an evidentiary hearing on a nonfrivolous
allegation coercion below, and 2) the “Federal Circuit-style” deferential standard of
judicial review of a merit based nonfrivolous allegation of coercion and retaliation in
this mixed case appeal.
The denial of an evidentiary hearing on a nonfrivolous allegation of coercion
in this case is a legal error and creates a structural error and a structural barrier
that blocks factual evidence and a decision on the merits. The barrier is then
hardened by the application of a “Federal-Circuit-style” deferential arbitrary and
capricious standard of review for the civil service component which is an alleged
discriminatory act itself and the jurisdiction of which is “inextricable” from the
9
merits of the dispute. If the jurisdiction of the adverse civil service action is
inextricable from the merits of the dispute, one cannot get to the merits of the
complaint without an evidentiary hearing.
This Court said Perry’s allegation of coercion into the settlement agreement
was a nonfrivolous allegation. The Circuit Court and the district court countered
with disputed facts, credibility determinations, and made inferences without an
evidentiary hearing that were not theirs to make but that of a jury and decided
Perry’s allegation of coercion was frivolous with the same information the Supreme
Court possessed when it made its determination Perry made a nonfrivolous
allegation of coercion into a settlement agreement. Dvorin v. Dep’t of Air Force, 70
M.S.P.R. 407, 411 (1996). This Court determined Perry’s allegation of coercion was
nonfrivolous and therefore he had the legal right to an evidentiary hearing on the
merits of that allegation.
This is a reversible legal error and a legal and structural
barrier to a mixed case trial de novo in the district court. The Circuit Court and
the District Court decided it didn’t care whether Perry’s allegations were
nonfrivolous, both courts affirmed and sustained the MSPB dismissal for lack of
jurisdiction with prejudice, violating this Court s decision in Perry (2017). This
Court must summarily reverse both the lower courts and order the evidentiary
hearing in the district court to guarantee federal employees the right to an
evidentiary hearing on a nonfrivolous allegation of a discriminatory adverse civil
service personnel action.
10
An arbitrary and capricious standard of review will not guarantee a federal
employee’s right to a fundamentally fair judicial process as evidenced in this case
with a Supreme Court determination in hand that Perry’s claim of coercion was
nonfrivolous.
There exists recorded testimony in the audio record of the AFGE
Union President stating that he was told to tell Perry he would be terminated on
the spot if he refused to sign the agreement or reported the agency action to the
EEO Office. That was not even considered in the lower court’s review. Neither was
evidence showing Perry worked after hours that he was not paid to make up time
missed during the work schedule. This entire action was an act of discriminatory
retaliation for having filed those seven prior pending EEOC cases and the agency’s
intent to deter other discriminated against employees from bringing cases of
discrimination against the U.S. Census Bureau and the Department of Commerce.
To justify its jurisdictional decision below, “the district court cites three
Federal Circuit cases, Ballentine v. MSPB, 738 F.2d 1244 (Fed.Cir. 1984), and two
of its progeny” abrogated by name twice in Kloeckner, 568 U.S. at 49 & n.3 and
Perry, 582 U.S. at 434 n.8. Perry v. Raimondo, U.S.D.C. l:17-cv-01932
Memorandum Opinion, Appendix B pgs. 10, 24-25.
Section 7703(b) designates the proper forum for judicial review of MSPB
decisions. Section 7703(b)(2) governs’”[c]ases of discrimination subject to provisions
of section 7702. Kloeckner , 568 U.S. at 46. Appendix E. The district court was
obligated to hear and decide this entire case de novo on the merits of plaintiffs
claims, unbound by the results of the administrative process nor limited to the
11
administrative record. Perry v. Raimondo, et. al. Amicus Initial Brief for Appellant,
D.C. Cir. 22-5319 (2024) p. 27.
Susan B. Anthony List v. Driehaus, 573 U.S. 149,
167 (2014); Morris v. Rumsfeld, 420 F.3d 287, 294 (3d Cir. 2005); see Scott v.
Johanns, 409 F.3d 466, 470 D.D. Cir. 2005); Hayes (D.C. Cir. 1982).
12
STATEMENT OF THE CASE
In 2007, Petitioner filed the first of seven EEO complaints for unlawful
employment discrimination and retaliation and which he had engaged the Census
Bureau in settlement discussions. All of these prior filed EEOC cases were pending
adjudication or settlement at the time the Census Bureau served appellant a
termination letter.
Petitioner Anthony W. Perry was hired by the U.S. Census Bureau in
Suitland, Maryland in 1982, and worked for that agency for thirty years without
any question or complaint of his performance or conduct. In mid-2000, appellant
developed osteoarthritis in his lower back and hip with pain extending into the
groin. To help manage the pain, Perry’s supervisor allowed him a flexible work
schedule. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co.,
463 U.S. 29, 43 (1983).
On June 6, 2011, Perry sent an email to the Director of the Census Bureau
complaining of being subjected to ongoing discrimination in the selection process for
promotion. On June 7, 2011, Perry was served a Notice of Proposed Removal by a
Census employee who was not his direct supervisor. The Notice proposed to
terminate Perry’s employment, alleging that he had been absent during regular
working hours and thus had been paid for hours he had not worked. Perry
contested the charges and pointed to the informal accommodation that his
supervisor had provided and his unblemished disciplinary record. Crane v. Dep t of
13
Air Force, 240 F.App’x 415 (Fed. Cir. 2007); Daniels v. Donahoe, No. 0120103252,
2012 WL 2068638 (E.E.O.C 2012); Davis v. Dep’t of Army, 33 M.S.P.R. 389 (2005).
In August 2011, Perry and the agency entered into a settlement agreement
that required him to serve a suspension for thirty calendar days, retire no later
than September 4, 2012 and forfeit his discrimination claims against the agency.
In 2012 after serving a 30-day suspension and early retirement April 3, 2012,
Perry filed a pro se challenge with the Board. An administrative law judge
(ALJ) ordered show cause briefs as to why the challenge should not be dismissed
for lack of jurisdiction. “[. . .], resignations and retirements are presumed to be
voluntary, and voluntary actions are not appealable to the Board, and the
Board cannot review the same claims over which you entered into a settlement
agreement with the agency.” Perry responded that the settlement agreement
had been coerced, and that the subsequent major adverse employment actions
were thus involuntary.
After reviewing the evidence without holding an evidentiary hearing, a
procedure required by law, on Perry’s allegation that he was coerced into signing
the nondisclosure agreement under threat of termination and duress if he failed
to sign the agreement or reported the proposed termination to the agency EEO,
the ALJ dismissed the case for lack of jurisdiction.
Under “a long line of cases,”
the Board may exercise jurisdiction over an “ostensibly . . . voluntary separation
from employment,” if the government coerces the employee “into resigning.’
Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1324 (Fed. Cir. 2006) (en banc).
14
An employee s coerced, involuntary choice is tantamount to forced removal. Id.
at 1328 (internal quotation marks omitted).
An employee can prove “involuntariness in a number of different ways.'’ Id.
As relevant here, an employee proves coercion if his “agency threatened to take a
future disciplinary action that it knew or should have known could not be
substantiated.” Fassett v. U.S. Postal Serv., 85 M.S.P.R. 67/, 679 (2000) (citing
Schultz, 810 F.2d at 1136). The touchstone is objective reasonableness. If the
agency lacks “reasonable grounds” for terminating an employee, but threatens
termination anyway, then the agency coerces the employee. Locke v. U.S. Postal
Serv., 61 M.S.P.R. 283, 288 (1994) (quoting Schultz, 810 F.2d at 1136). In
particular, the ALJ decided that both the 30-day suspension and retirement
were voluntary because they resulted from a voluntary settlement agreement.
Perry petitioned the Board for review.
The Board granted the petition and remanded the case to the ALJ for further
proceedings. The Board concluded that Perry had “made a nonfrivolous
allegation of involuntariness due to misrepresentation of Perry’s appeal rights
sufficient to warrant a jurisdictional hearing,” and that the ALJ had thus erred
by dismissing the case without holding an evidentiary hearing, but expressly
refused to hear Perry’s claim he was coerced into the settlement agreement
under threat of immediate termination if he did not sign the agreement or if he
reported the adverse personnel action to the EEOC.
15
On remand, the ALJ held a hearing on “misrepresentation” of Perry’s right of
appeal and concluded that Perry “failed to proved that he was coerced or
detrimentally relied on misinformation when he agreed to settle his appeals.”
The ALJ dismissed the appeal for lack of jurisdiction. Perry petitioned again for
Board review.
The Board affirmed the ALJ. It concluded that Perry “failed to establish that
he detrimentally relied on misinformation regarding his potential appeal rights
when entering into the settlement agreement and, therefore, that we lack
jurisdiction over his appeal because [he] validly waived his appeal rights [...] .
Perry also received a notice that further review rights would be at the U.S. Court
of Appeals for the Federal Circuit.
Perry proceeding pro se instead file a petition for review in the U.S. Court of
Appeals for the D.C. Circuit. The D.C. Circuit ordered Perry to “show cause
why this petition should not be dismissed for lack of jurisdiction or transferred to
the United States Court of Appeals for the Federal Circuit. After both parties
filed briefs on the jurisdictional issue, the court directed parties to “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),”
and appointed counsel as amicus curiae “to present arguments in favor of
petitioner’s position.” Judge Henderson dissented from the ordei, noting she
16
“would grant [the Government’s] request to transfer the case to the Federal
Circuit.”
Upon agreement that the D.C. Circuit lacked jurisdiction, the remaining
question was whether to transfer the case to a district court or the Federal
Circuit. The D.C. Circuit held, that it was constrained to transfer the case to the
Federal Circuit based on a pre-Kloeckner circuit precedent, (citing Powell v.
Dept, of Defense, 158 F.3d 597 (D.C. Cir. 1998)).
The Federal Circuit docketed the appeal but held the briefing in abeyance
until the Supreme Court resolved the jurisdictional issue presented in his
petition before the high Court. See Perry v. MSPB, No. 2016-2377 (Fed. Cir.
Aug. 31, 2016).
This Court granted certiorari and on June 23, 2017 and reversed the D.C.
Circuit deciding the mixed case was properly before the MSPB and remanded for
further processing. Perry v. MSPB (2017).
“A party, [it said,] [may] establish
jurisdiction at the outset of a case by means of a nonfrivolous assertion of
jurisdictional elements.’
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 complaint must simply be more than insubstantial
or frivolous,” 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.”).
17
The Court went further saying, federal employees have a right to pursue
claims of discrimination m violation of federal law in federal district court. See 5
U.S.C. 7703(c) (preserving ‘right to have the facts subject to trial de novo by the
reviewing court” in any “case of discrimination brought under 5 U.S.C
7703(b)(2)). MSPB’s adverse ruling on the merits of Perry s claim that the
settlement was coerced “did not retroactively divest the MSPB of jurisdiction to
render that decision. “Because Perry complamfed] of a personnel action serious
enough to appeal to the MSPB” (in his case , a 30-day suspension and
involuntary removal, see 5 U.S.C. 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. “Judicial review of such a case lies in district court.”
This Court went further still stating, “the distinction between jurisdictional
and merits issues is not inevitably sharp, for the two inquiries may overlap. See
Shoafv. Dept, of Agriculture, 260 F.3d 1336, 1341 (CAFed. 2001)
(“recognize[ing] that the MSPB’s jurisdiction and the'merits of an alleged
involuntary separation are inextricably intertwined. This case fits that bill.
The MSPB, this Court said, 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 S. Ct. 16-399 (2017), App. to Pet. for Cert. 27a. footnote 9 “But the validity
of the settlement is at the heart of the dispute on the merits of Perry’s
complaint.” “In essence”, the Court said, “the MSPB ruled that it lacked
18
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 retirement was
involuntary and thus tantamount to forced removal,” then “not only [does the
Board] ha[ve] jurisdiction, but also the employee wins on the merits and is
entitled to reinstatement.”
On remand, the district court ordered Plaintiff to file his complaint and
waived the government’s requirement to answer a civil complaint in accoiding
with Federal Rules of Civil Procedure Rule 12 without explanation.
(Perry v.
Ross (2022), l:17-cv-01932 (TSC).
The district court issued a Mediation Standing Order December 11, 2017.
After the agency declined to participate in the ordered mediation by letting the
time expire instead of informing the court it had no intent to engage in
settlement discussions.
The district court filed a scheduling order June 20, 2018 that the parties
shall brief the issue of whether the Merit Systems Protection Board’s (“MSPB”)
decision dismissing Plaintiffs appeal for lack of jurisdiction should be affirmed
by the district court, an issue not before it and of which the district court lacked
subject matter jurisdiction in this case. At this juncture, the court wifi not
entertain arguments on the underlying discrimination claim.” (l:17-cv-01932
(2022), Dkt. No. 24, Pp. 1-3).
That district court’s order waived the defendant’s
requirement to answer plaintiffs complaint. Instead, the district court would
19
later answer plaintiffs complaint with its opinion and order of dismissal with
prejudice approximately three years later.
On November 19, 2018, Plaintiff filed a motion for summary judgment (Dkt.
No. 30-1 Pp. 1-2), an accompanying Statement of Facts in support of a Rule 56
motion for summary judgment (Perry (2022) Dkt. No. 30-2 Pp. 1-17.), a Brief in
support of his Motion for Summary Judgment (Perry (2022) Dkt. No. 30-3 Pp. 143, and a Memorandum in Opposition to Defendant s Cross Motion for Summary
Judgment (Perry (2022) Dkt. No. 41, Pp. 1-35).
On August 30, 2022 the United States District Court for the District of
Columbia (l:17-cv-01932), without providing the evidentiary hearing denied by
the MSPB on Plaintiffs allegation of coercion into signing a settlement
agreement under threat of termination reviewed only the Board s jurisdictional
determination based on an incomplete administrative record and “affirmed the
Merit Systems Protection Board’s (MSPB or “Board ) decision dismissing the
case for lack of jurisdiction” and subsequently dismissed this case for lack of
jurisdiction with prejudice.
On appeal, the D. C. Circuit Court appointed an Amicus to argue the case in
support of Appellant’s position for summary reversal of the district court’s
dismissal for lack of jurisdiction with prejudice. On May 14, 2024, the D. C.
Circuit Court of Appeals issued a two part opinion bifurcating the case by
“affirm[mg] the district court’s ruling that the MSPB properly dismissed Perry’s
mixed case because the Board lacked jurisdiction to hear claims arising from
20
Perry’s voluntary retirement” and “reversed the district court s dismissal of
Perry’s discrimination claims” and remanded the discrimination claims for
further proceedings.
On July 25, 2024, appellant filed a petition for panel rehearing or m the
alternative a petition for rehearing en banc.
Subsequently, on August 6, 2024,
the D.C. Circuit Court of Appeal filed an order denying appellant’s petition for
panel rehearing and an order denying appellants petition for rehearing en banc
as a result of the absence of a request by any member of the court for a vote.
August 15, 2014, Appellant filed a Notice of intent to file a petition for
Supreme Court Review of D C. Circuit Court of Appeals opinion and order.
On August 16, the D.C. Circuit Court of Appeals filed a Mandate in
accordance with the judgment of May 14, 2024.
Below, the Circuit Court and the district court’s legal errors as well as the
MSPB’s legal error denying appellant an evidentiary hearing required by law in
Perry’s “nofrivolous allegation of coercion into a settlement agreement” leads to
structural errors and barriers to a federal employee s ability to exercise his due
process and constitutional rights to contest alleged workplace discrimination in
the federal district court.
In Perry (2017), this Court settled the federal-
question of jurisdiction of the judicial review of mixed cases dismissed by the
MSPB for lack of jurisdiction. The district court and the D.C. Circuit Court of
appeals contravened that Supreme Court decision in the latest adjudication of
this case. l:17-cv-01932 (TSC); D.C. Cir. No. 22-5319. The amicus in this case
21
said the district court imposed a “Federal Circuit-style review over Perry s
mixed case extricating the jurisdiction of the alleged agency adverse
discriminatory civil service personnel action from the remaining underlying
discrimination claims. D.C. Cir. 22-5319, Amicus Init. Br. for Appellant,
The use of the deferential arbitrary and capricious standard of review for the
discriminatory and retaliatory civil service personnel action which is at the heart
of the dispute of the merits of the entire discrimination complaint when a lesser
deferential standard of judicial review, de novo, is applied to the remaining
underlying claims of discrimination. In this case where the MSPB denied an
evidentiary hearing on a nonfrivolous allegation of coercion, a procedure
required by law, a structural error and barrier is intentionally placed before a
federal employee to block his path to a trial in the district court and deny due
process and other constitutional rights.
Both lower courts made credibility determinations, weighed evidence, and
made inferences from disputed facts that was the province of a jury. Dvorin, 70
M.S.P.R. (1996). In order to assure a federal employee’s right to bring a mixed
case to trial in the district court on the merits of her complaint, this Court must
summarily reverse the district court affirmation of the MSPB dismissal for lack
of jurisdiction as it did in Perry’s first petition to this Court and remove the label
“with prejudice” designed to defeat a federal employees case of discrimination
before a trial de novo or de novo review of the civil service personnel action is
held. Ciralsky at 661, 669 (D.C. Cir. 2004) This Court must reverse the Circuit
22
Court’s affirmation of the district court’s affirmation of the MSPB dismissal for
lack of jurisdiction and correct every legal error starting with the denial of the
evidentiary hearing at the MSPB. The Court on review of the statutory
language in 5 U.S.C 7702 and 7703 should review the plain text of the applicable
statutory language, and in the process give no deference to the fact that some
Circuit Courts have applied the arbitrary and capricious standard of review to
alleged discriminatory adverse agency civil service personnel actions and
determine an appropriate standard of review that at the very least guarantees
an evidentiary hearing on the merits of a nonfrivolous allegation of a
discriminatory civil service personnel action allegation and discovery to complete
the record from which the lower court will use to render it s decision.
23
REASONS FOR GRANTING THE PETITION
Most federal employees appear before the MSPB as pro se appellants. This
Court’s decision in this case will affect every federal employee who wishes to file a
complaint against a federal agency for an alleged discriminatory adverse civil
service personnel action.
The Supreme Court reversed and remanded this case to the D. C. Circuit
Court of Appeals. 829 F. 3d 760 (2016) The Amicus curiae for Appellant in that
petition to this Court stated, “this case presents this Court an opportunity to finish
the job it started in Kloeckner v. Solis, 133 S. Ct. 596 (2012): to bring coherence and
clarity to the statutory regime governing judicial review of decisions by the Merit
Systems Protection Board (MSPB or Board)”. S. Ct. 16-399 Perry v. MSPB (2017),
Amicus Petition For Writ Of Certiorari for Petitioner, p. 1.
Concluding in his
petition for certiorari for Perry (2017) amicus stated, insofar as the D.C. Circuit is
correct that Kloeckner did not expressly answer the question of which court reviews
“mixed” cases dismissed by the MSPB on jurisdictional grounds, this Court should
do so now. Few things are more wasteful than litigation over the proper court in
which to litigate”.
This Court should continue to use this case to bring coherence
and clarity to the statutory regime governing judicial review of decisions by the
Merit Systems Protection Board” and the appropriate standard of judicial review
that will guarantee federal employees statutory and constitutional rights to an
adjudication on the merits of their allegations.
24
D. C. Circuit Court of Appeals has labeled its affirmation of the district
court’s affirmation of the MSPB dismissal of this case for lack of jurisdiction and its
remand of the discrimination claims to the district court precedential .
Here, the
lower courts are using the ‘lack of jurisdiction” label to deny statutory and
constitutional rights this Court addressed in Perry (2017). That decision is
irreconcilable with this Court’s decision in Perry v. MSPB, 582 U.S. 420 (2017),
violates appellants due process, uses legal errors to violate statutory and
constitutional rights, to deny appellant’s 6th amendment right to confront accusers
and to deny appellant’s 7th amendment right to a hearing in a civil complaint, and
finally to disregard appellant’s property rights to his federal employment. The
district court waived the defendants duty to respond to appellants legal complaint,
The district court’s order to brief jurisdiction is m excess of the trial courts order on
transfer from the Circuit Court and the opinion and order in Perry (2017).
Both the D.C. Circuit Court of Appeals and the U.S. District Court for
District of Columbia acts as counsel for the government in this case reaching
conclusions that do not appear on the face of the MSPB decision. Both make
credibility determinations, weigh evidence, and draw inference from disputed facts,
made reversible legal errors in its decisions, failed to correct the MSPB legal error.
The evidence in the case is the exact same evidence the Supreme Court used to
render a totally different opinion in Perry v. MSPB (2017). Dvorin, 70 M.S.P.R.
(1996)
25
Fatal legal errors include declining to consider Perry’s discrimination claims
and relying on the abrogated case law of Ballentine v. MSPB, 738 F.2d 1244 (Fed.
Cir. 1984) and its progeny. Perry v. Raimondo 22-5319, Amicus Init. Br. for
Appellant pgs. 22-24. The district court dismissed the case with prejudice
potentially preventing appellant from adjudicating his discrimination claims, some
of which were coerced into forfeiture by the government in violation of Title VII of
the Civil Rights Act and interference in appellant’s right to bring his mixed case
complaint of discrimination to the district court. The Circuit Court allowed the
MSPB denial of an evidentiary hearing on coercion into a settlement agreement to
stand which denied appellant due process when it could have ordered an
evidentiary hearing in the district court.
The District Court erred when it upheld the Merit Systems Protection
Board’s determination that the Board lacked “jurisdiction” over Perry’s claim under
the Civil Service Reform Act. This Court said Appellant raised a nonfrivolous
allegation the agency coerced him into a settlement agreement. Consequently, an
evidentiary hearing was required by law. The lower courts continue to focus on
appellant being out of the building instead of whether the Bureau knew, or should
have known it could not fire Perry for the absence because of his supervisor
provided accommodation. Motor Vehicle Mfrs. Ass n, 463 U.S. 29 (1983).
The
agency, the MSPB, the district court and the Circuit Court all refused to allow
Perry’s supervisors to testify on this issue and this Court should rule hi favor of
26
Perry on the merits of his complaint and reinstate his employment and he prevail
on his remaining nonfrivolous claims.
This Court should review that a federal employee shall receive a trial de novo
on the merits of the underlying discrimination (which includes the discriminatory
civil service action) and on the alleged discriminatory adverse agency civil service
personnel action itself alleged to be discriminatory, which then leads to the
underlying discriminatory claims. That plain text language does not appear m the
applicable sections of the CSRA (1978). Noting here that without an evidentiary
hearing required by law on a nonfrivolous allegation, the arbitrary and capricious
standard of judicial review would be done using an intentionally mcomplete
administrative record and the merits of the complaint omitted from the record.
This Court should grant the petition and issue an opinion, order, and
processing guidelines without any additional argument. The Court must use this
case
to further clarify federal employee rights to appeal a wrongly dismissed mixed
case for lack of jurisdiction when an evidentiary hearnig on an appellants
nonfrivolous allegation is denied and break the “Federal Circuit-style” resolution to
alleged discriminatory adverse personnel actions. The Circuit Court and District
Court decisions here, the legal and resulting structural barriers, and the citation of
abrogated Federal Circuit law to dismiss this complaint are intended to bar federal
employee’s due process and the constitutional rights to adjudicate a mixed case
appeal in the district court.
27
The government argued that the Circuit Court should consider only “the
threshold issue
of whether the Board’s “decision dismissing” Perry’s appeal for lack
of jurisdiction should be affirmed.” JA83.
The District Court agreed and declined
“to entertain arguments on the underlying discrimination claim” and subsequently
granted the government’s motion for summary judgment and dismissed the entire
complaint with prejudice, JA89; JA10 (5/3/2018 Minute Order); JA752. The
lower courts failed to analyze the Supreme Court’s decision in this case or the
statutory text of 5 U.S.C. 7702-7703. Instead, the District Court held that its only
task in a mixed case dismissed on jurisdictional grounds was “to decide if the
Board’s “decision was arbitrary and capricious .. ” and then decided the Board’s
jurisdictional decision was neither arbitrary nor capricious and granted summary
dismissal with prejudice, never considering the freestanding discrimination claims.
JA748. This decision is irreconcilable with this Court’s prior decision in Perry’s first
appeal to this Court. Hayes (D.C. Cir. 1982).
The Circuit Court could have remanded this case to MSPB or ordered the
district court to hold the evidentiary hearing to complete the administrative record
and subsequently perform a de novo review of the facts and a trial de novo on the
discrimination claims.
Instead, it chose to “contravene” this Court’s decision m
Perry (2017) and its attempt to protect the right of federal workers to bring these
“cases
of discrimination” to the district court, preferring the expedience of a
deferential “Federal-Circuit-style disposal of them.
28
The Circuit Court allows the MSPB’s legal errors to create a structural error
and barrier that is intended to bar federal employees from bringing mixed case
appeals to the district court specifically targeting the discriminatory and retaliatory
civil service component for dismissal.
By sustaining the district court’s affirmation
of the MSPB dismissal for lack of jurisdiction with prejudice, the Circuit Court
ruling allows the district court to eventually dismiss the entire case and prior
existing discrimination claims within the complaint without a hearing on the merits
or the validity of the settlement agreement of appellant’s complaint, The “with
prejudice” label subjects the complaint to the fait described in the Supreme Court’s
footnote 10 in Perry v. MSPB (2017). Ciralsky (2004).
Footnote 10 of this Court’s opinion and remand order in Perry
v. MSPB, 582
U.S. 420 (2017) states “if a reviewing court “agree[d] with the Board’s assessment,
then Perry would indeed have “lost his chance to pursue his ... discrimination
claim[s],” post, at 3 for those claims would have been defeated had he voluntarily
submitted to the agency’s action” and “that with-prejudice judgment may
unintentionally prevent Perry from refilling his discrimination claims. ” See also
Init. Br. for Appellant at 40, Perry v. Raimondo, D. C. Cir. No. 22-5319 (2024).
Without being provided an evidentiary hearing required by law, appellant’s case of
discrimination is defeated without ever having the opportunity guaranteed by the
law
that federal employees have the right to bring claims of discrimination to the
district court for a trial de novo.
29
CONCLUSION
The petition for a writ of certiorari should be granted and this Court should vacate
the Circuit Court's partial decision affirming the district court decision affirming
the MSPB dismissal for lack of jurisdiction with prejudice and summarily
the entire contravening district court opinion.
Respectfully submitted,
3&
reverse
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.