Supreme Court hears arguments in MSPB ‘mixed case’ jurisdiction appeal

Attorneys for a former Labor Department employee and the federal government have presented oral argument to the U.S. Supreme Court in a dispute over the proper venue for an appeal of a case involving both termination and discrimination claims that the Merit Systems Protection Board rejected on procedural grounds.

There is no dispute that an MSPB decision in a case challenging both termination and discrimination should be appealed to a federal district court, assuming the board ruled on the merits of the case, but courts are divided over the question of jurisdiction when the board rules without addressing the merit of the claims.

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The Civil Service Reform Act of 1978, 5 U.S.C. § 7513, allows a federal employee to:

•           Bring discrimination claims against his or her employer before the Equal Employment Opportunity Commission.  If the employee is dissatisfied with the EEOC decision, a suit can be filed in federal district court.

•           Challenge a personnel decision, such as termination, with the Merit Systems Protection Board.  The employee can then ask the U.S. Court of Appeals for the Federal Circuit to review an MSPB ruling.

Confusion arises in “mixed case” suits that combine both EEOC and MSPB claims, because the Civil Service Reform Act has set out two different appeals processes.

On Oct. 2, the Supreme Court heard oral argument in a suit seeking to resolve the confusion.

(Click here to view the oral arguments transcript on Westlaw.)

Attorney Eric Schnapper, arguing before the high court for the former employee, Carolyn Kloeckner, said all appeals should go to the district court.  Otherwise, Schnapper said, either the employee would have to abandon her discrimination claims in the federal circuit or the discrimination and termination claims would be split and pending in different courts.

On behalf of the government, Sarah Harrington argued that when Congress adopted the Civil Service Reform Act it did not intend for MSPB decisions to be reviewed anywhere but the Federal Circuit.

Kloeckner is a former investigator for the Labor Department’s Employee Benefits Security Administration.  She filed a complaint with the EEOC in June 2005, alleging gender and age discrimination by the department.  A year later, before that complaint was resolved, Kloeckner was fired.

Kloeckner challenged the termination decision with the MSPB, the petition says, but later sought dismissal of the MSPB action to add the termination claim to her pending EEOC complaint.

An administrative law judge with the MSPB granted her dismissal motion Sept. 18, 2006, and said she had until January 2007 to refile an appeal with the board.

In April 2007 the EEOC referred her complaint back to the Labor Department and later that year the agency upheld her termination and dismissed her discrimination claims.  The department told her she could either appeal the decision to the MSPB or file a suit in federal district court, the petition says.

When Kloeckner appealed to the MSPB, the administrative law judge rejected the claim as untimely because it came after the imposed January 2007 deadline, according to the petition.

Kloeckner then sued the Labor Department in the U.S. District Court for the District of Columbia.  The agency successfully changed the venue to federal court in Missouri, where Kloeckner had worked.

According to the petition, the District Court dismissed the suit, saying it did not have jurisdiction in the matter. Kloeckner v. Chao, No. 09-804, 2010 WL 582590 (E.D. Mo. Feb. 18, 2010).

Kloeckner appealed to the 8th U.S. Circuit Court of Appeals, which affirmed the District Court’s decision.  Kloeckner v. Solis No. 10-2048, 639 F.3d 834 (8th Cir. May 13, 2011).

The 8th Circuit ruled that the Federal Circuit, not a district court, “had exclusive jurisdiction to review the MSPB’s decision, since the board did not determine the merits of employee’s discrimination claims.”

Kloeckner filed a petition for review with the Supreme Court, which the high court granted in January.

(Click here to view the petition for writ of certiorari on Westlaw.)

According to Kloeckner’s petition, there is no dispute that had the MSPB decided her case on the merits, rather than deeming it untimely, the District Court would have jurisdiction as it would in a discrimination claim.

But the high court must rule here, the petition says, because of disagreements among courts over proper jurisdiction in a “mixed case” decided on procedural grounds.

Kloeckner v. Solis, No. 11-184, oral argument held (U.S. Oct. 2, 2012).