Supreme Court Simplifies Mixed Case Appeals

December 19, 2012

In a unanimous decision on December 10, 2012, the Supreme Court simplified the appellate procedures for federal employees appealing adverse actions in cases involving discrimination or EEO reprisal. The Court’s decision in Kloeckner v. Solis, 568 U.S. ____ (2012), Case No. 11-184, reinstated the “mixed case” appeal process envisaged by Congress.

The Civil Service Reform Act of 1978 (CSRA) established the present system for adjudicating federal employees’ discrimination complaints and appeals from disciplinary actions. Under the CSRA, employees who suffer an adverse action which may be appealed to the Merit Systems Protection Board (MSPB), but who allege that the adverse action constitutes discrimination or EEO reprisal – the “mixed case” scenario – appeal their adverse action and their EEO claims to the MSPB in the first instance. As the Supreme Court noted in Kloeckner, mixed cases are adjudicated through “a complicated, at times confusing, process.”

Kloeckner decided the issue of where employees may then appeal from the MSPB in a mixed case. Under preexisting caselaw, in mixed cases where the MSPB administrative judge issued a merits decision on the discrimination claim, the employee can choose to (A) appeal the MSPB decision with its discrimination count into U.S. District Court, or to (B) appeal to the MSPB’s reviewing court – the U.S. Court of Appeals for the Federal Circuit – on the adverse action alone and waive the discrimination claim.

The issue in Kloeckner was what happens when the MSPB decides the employee’s mixed case appeal without expressly deciding the discrimination issue (such as by finding a lack of MSPB jurisdiction over the appeal). The decision below from the U.S. Court of Appeals for the Eighth Circuit held that all such appeals must go to the Federal Circuit. However, since the MSPB did not conduct a trial nor adjudicate the discrimination claim in that circumstance, the record would be incomplete. Under the Eighth Circuit’s analysis, the Federal Circuit would then have to remand the discrimination claim back to the MSPB to take evidence on the discrimination claim, then refer the case back up to the Federal Circuit to actually decide the discrimination claim.

Writing for the unanimous Supreme Court, Justice Kagan rejected the Eighth Circuit’s analysis. Instead, the Court held that the CSRA clearly vested judicial review on MSPB decisions in mixed cases in the federal district courts, whether or not the MSPB expressly adjudicated the discrimination claim.