This news from the Supreme Court: On January 13, 2011, the Supreme Court announced that it would hear an appeal in Kloeckner v. Solis, Secretary of Labor. The case asks the Court to clarify how federal employees can appeal certain adverse personnel actions where the action is challenged as discrimination or EEO reprisal (“mixed cases”). Specifically, the Supreme Court has to decide this question: “If the MSPB decided 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?” Under present statute, mixed cases are heard on the merits by the Merit Systems Protection Board (“MSPB”), which adjudicates both the personnel action appeal and the discrimination argument. The issue on appeal to the Supreme Court is what avenues of appeal are open to employees after the MSPB has heard the case. For cases where the MSPB’s decision expressly rules on both the discrimination claim and the personnel action, the law is clear: the employee has the choice between either appealing the personnel action only to the Court of Appeals for the Federal Circuit (dropping the discrimination claim), or else taking the discrimination claim into federal district court on the discrimination theory (but lose the chance to overturn the personnel action on anything other than discrimination grounds). A split had emerged between the various Circuit Courts of Appeals as to how to handle the situation where the MSPB’s decision on a mixed case is silent on the discrimination arguments (for example, because the MSPB dismissed the case for lack of jurisdiction without deciding the merits). Some courts hold that, when the MSPB does not rule on the discrimination claim, the sole avenue for court review is to the Federal Circuit. Others circuits have held that, when the MSPB does not rule on the discrimination claim in adjudicating a mixed case, the employee may, or indeed may only, take the case into federal district court on the discrimination issues. The Supreme Court will now have to decide which approach is correct.
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