# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Ar gued November 18, 2015 Decided July 22, 2016

No. 14

- 1155

A NTHONY W. P ERRY , P ETITIONER

v.

M ERIT S YSTEMS P ROTECTION B OARD , R ESPONDENT

On Petition for Review of a Decision of the Merit Systems Protection Board

Rebecca Taibleson , appointed by the court, argued the cause for petitioner. With her on the briefs were Devin S. Anderson and Christopher Landau , all appointed by the court.

Anthony W. Perry , pro se, filed the brief for petitioner.

Stephen W. Fung , Attorney, Merit Systems Protection Board, argued the cause and filed the brief for respondent.

Before: G RIFFITH , S RINIVASAN and M ILLETT , Circuit Judges

. Opinion for the Court filed by Circuit Judge S RINIVASAN

.2

S RINIVASAN , Circuit Judge : When a federal agency takes a significant adverse employment action against an employee, the employee can appeal to the Merit Systems Protection Board. If the Board then rules against the employee, she can seek review o f the Board’s decision in a federal court. But which federal court? That is the question we confront in this

case. There are two possible answers: the Federal Circuit or

a federal district court.

As a general matter, Board decisions are reviewed in the Federal Circuit. An exception to that default rule arises with

so

- called “mixed cases.” Mixed cases are ones in which an employee not only challenges an adverse action within the Board’s jurisdiction but also alleges discrimination in violation of certa in federal statutes. I f the Board in a mixed

case rules against the employee on the merits of her discrimination claim, she must seek review in district court, not the Federal Circuit

. Our court has held, though, that the mixed

- case exception does not apply if the Board dismisses the employee’s appeal for lack of jurisdiction without reaching the merits of her discrimination claim. I n that circumstance, review lies in the Federal Circuit rather than district court

. Powell v. Dep’t of Def. , 158 F.3d 59 7 (D.C. Cir. 1998). This case involves exactly that situation. So in the normal course, our precedent in Powell would straightforwardly dictate transferring this

case to the Federal Circuit.

It turns out the path is not so straightforward because of the Supreme Court’s intervening decision in Kloeckner v. Solis , 133 S. Ct. 596 (2012). In Kloeckner , the Court held that w hen the Board dismisses a mixed

- case appeal without reaching the merits on a procedural ground

— there,3

un timeliness

— judicial review resides in district court (as when the Board reaches the merits) , not the Federal Circuit

. The question we now address is whether Kloeckner effectively overruled ou r decision in Powell . That is, does Kloeckner ’s result for pre

- merits procedural dismissals eviscerate Powell ’s contrary result for pre

- merits jurisdictional dismissals?

We find that the answer is no, and that we remain bound by our precedent in Powell . We therefore trans fer this case to the Federal Circuit.

I.

Anthony Perry , the appellant in this case, worked for the Census Bureau until 2012. In 2011, the Bureau sent Perry a memorandum notifying him that he would be terminated because of problems with his attendance. The Bureau alleged that Perry had refused t o document his hours properly and had been absent from his desk for hours at a time. Perry responded, explaining that he had an informal agreement with his supervisor allowing him to take walking breaks during the workday due to his osteoarthritis.

In August 2011, Perry entered into a settlement agreement with the Bureau

. T he agreement settled the disciplinary action in exchange for Perry’s early retirement and his completion of a thirty

- day suspension. It also required Perry to dismiss discriminatio n claims he had separately filed with the Equal Employment Opportunity Commission. Although Perry later expressed his desire to continue working, he retired in April 2012 per the settlement agreement.4
Perry then appealed his suspension and retirement to the MSPB

. He alleged that the Bureau’s complaints about his performance resulted from discrimination based on his race, age, and disability, and also constituted retaliation against him for bringing his discrimination claims. Perry further claimed th at , because of the discrimination and because the Bureau had misrepresented his appeal rights

, his settlement agreement with the Bureau had been coerced

. The MSPB’s jurisdiction hinged on Perry’s claim that the settlement had been involuntary : b ecause the Board generally lacks jurisdiction to review voluntarily accepted actions

, see 5 U.S.C. § 7512 (1)

- (5) ; 5 C.F.R. § 752.401 (b) (9) ; Garcia v. Dep’t of Homeland Sec. , 437 F.3d 1322, 1328 (Fed. Cir. 2006) , its jurisdiction in this cas e depended on the validity of Perry’s contention that the settlement

— and hence, the resulting suspension and retirement

— had been involuntary. An administrative law judge rejected Perry’s claims of coercion , finding that the retirement and suspension had b een imposed pursuant to a voluntary agreement. The judge thus dismissed the case for lack of jurisdiction. The MSPB , after remanding the case once for reasons not relevant here

, affirmed the dismissal for lack of jurisdiction.

Perry , proceeding pro se, filed a petition for review of the Board’s dismissal in this court. We appointed an amicus curiae to present argument on whether this court has jurisdiction, and, if not, whether the case should be transferred to the Federal Circuit or a federal distr ict court . Because Perry has fully joined amicus’s arguments on those issues , we will refer to them collectively as Perry

.5

II.

The question we confront is which federal court has jurisdiction to review the Board’s dismissal of Perry’s case

. We can qui ckly rule out one court

— ours. Although Perry initially petitioned for review in this court, he now acknowledges that this court lacks jurisdiction. The Boa rd agrees, and so do we

. The statute under which Perry initially brought the case to us, 5 U.S.C. § 7703(b)(1)(B), allows for jurisdiction in any court of ap peals over cases in wh ich the employee exclusively makes whistleblower claims. That provision, as all parties agree, has no application to this case.

Although this court lacks jurisdiction

, we can transfer the
case to a court in which it could have been brought originally

. See 28 U.S.C. § 1631. And while the parties agree that the

case should be transferred from here , they disagree a bout where it should go

. Perry contends that jurisdiction to review the Board’s decision lies in federal district court. The Board argues that the case instead belongs in the Federal Circuit. We conclude that our precedent requires transferring the case to the Federal Circuit.

Before turning to which court has jurisdiction to review the MSPB’s decision, we briefly set out which cases can go to the Board in the first place. Not every type of adverse employment action can be appealed to the Board. Rather, to come within the Boar d’s jurisdiction, the action must be sufficiently serious

— e.g., a termination or a suspension of longer than fourteen days. See 5 U.S.C. § § 7512, 7513(d). Additionally, as explained, the contested action generally cannot have been voluntarily undertaken by the employee.

Let ’ s assume the employee brings to the Board a case that meets those criteria and thus lies within the MSPB’s6
jurisdiction. If the Board renders a decision against her

, she may seek judicial review pursuant to the Civil Service Reform Act, 5 U.S.C. § 1101 et seq

. As a general matter, review of Board decisions lies in the Federal Circuit. 5 U.S.C. § 7703(b)(1) (A) . There is an exception to that rule for certain “[c]ases of discrimination,” as to which review lies in federal district court. Id. § 7703(b)(2).

The statute defines the cases falling within that exception as ones in which an employee “(A) has been affected by an action which [she] may appeal to the Merits Systems Protection Board, and (B) alleges that a basis for the action was discrimination prohibited by” enumerated federal laws. Id. § 7702(a)(1). Such cases have come to be known as “mixed cases.” E.g.
, Kloeckner , 133 S. Ct. at 602, 604. The upshot is that, whereas review of MSPB decisions no rmally resides in the Federal Circuit, “mixed cases

— those appealable to the MSPB and alleging discrimination”

— “shall be filed in district court.” Id. at 604.

But where should an employee seek judicial review in a situation in which she brought to the MSPB what she believed

was a mixed case, but the Board d ismissed her appeal for lack of jurisdiction upon deciding that the case was not in fact “appealable to the MSPB”? Id. That happened here : Perry sought review in the MSPB of a case in which he “alleg[ed] discrimination

, ” id.

, but the Board dismissed his appeal for lack of jurisdiction based on a conclusion that his retirement and suspension had been voluntary.

We previously faced the same situation in Powell v. Dep artme nt of Def ense , 158 F.3d 597. There, a fter concerns had been raised about Lawana Powell’s absences from work, she agreed to a transfer to a temporary position which expired

soon thereafter

. Id. at 597. Powell appealed to the MSPB,7
arguing that her separa tion had been involuntary and that the agency had discriminated against her. Id. The Board dismissed her appeal for lack of jurisdiction upon finding that her acceptance of the transfer had been voluntary. Id. at 597

- 98. She sought review in district court on the assumption that her case was a mixed case. But the district court “ruled that Powell’s case was not a true mixed case because it included only a discrimination claim and not a Board

jurisdictional claim.” Id. at 598. We agreed, holding that the Federal Circuit

— not the district court

— was the proper forum for Powell’s appeal. Id. at 599

- 600.

Powell is materially indistinguishable from this case

. Like Powell, Perry resolved a disciplinary issue by agreeing to a significant employment action that could be appealed to the Board if involuntary (in this case, mandatory retirement and a thirty

- day suspension ). Like Powell, Perry then claimed that his agreement had been involuntary due to discrimination. As in Powell , the Board disagreed, finding that the agreement was voluntary and thus dismissing the appeal for lack of jurisdiction. And like Powell, Perry contends that review of the Board’s dismissal lies in district court. We rejected that argument in Powell

. As a result,

u nless there has been some controlling change in the law in the interim

, our precedent in that case would require us to conclude that Perry’s appeal , like Powell’s, belongs in the Federal Circuit rather than in district court

.
Perry argues that Powell no longer binds us because of the Supreme Court’s intervening decision in Kloeckner v. Solis , 133 S. Ct. 596. As we have explained, “a circuit precedent eviscerated by subsequent Supreme Court cases is no longer binding on a court of appeals.” Dellums v. U

. S

. Nuc lear Regulatory Comm’n , 863 F.2d 968, 978 n.11 (D.C. Cir. 1988). “The question” for us is whether the intervening8
Supreme Court decision “effectively overrules, i.e.
, ‘eviscerates’” our prior precedent. United States v. Williams

, 194 F.3d 100, 105 (D.C. Cir. 1999) (alteration omitted) (quoting Dellums , 863 F.3d at 978 n.11), abrogated on other grounds by Apprendi v. New Jersey , 530 U.S. 466 (2000)

. Here, consequently, we ask whether Kloeckner “ effectively overrule s ” or “eviscerate s ” Powell , such that Powell is incompatible with Kloeckner

. We conclude it does not

.
For starters, all sides agree that Kloeckner did not involve the precise issue raised by both this case and Powell

. See Amicus Reply Br. 9

- 10 n.2 ; Respondent Br. 18

- 21

. In the latter cases , the Board dismissed the employee’s appeal for lack of jurisdiction, holding that it could not hear the appeal because the challenged action was voluntary. See Powell , 158 F.3d at 597

- 98. Kloeckner did not involve a jurisdictional dismissal. There was no doubt that Kloeckner alleged an adverse action within the Board’s jurisdiction

— she had been fired. Kloeckner , 133 S. Ct. at 602. The Bo ard instead dismissed her claim on the procedural ground of untimeliness

. Id. at 603. And each time the Kloeckner Court described the question before it, it specifically defined the issue by reference to MSPB dismissals on “procedural grounds.” Id. at 600, 602, 603, 607.

The Court did so, moreover, with awareness of the potential distinction between procedural and j urisdictional dismissals. In explaining that it had g ranted review to “resolve a Circuit split on whether an employee seeking judicial review should proceed in the Federal Circuit or in a district court when the MSPB has dismissed her mixed case on proced ural grounds,” the Court cited

— as the cases making up the district

- court side of the split

— decisions from the Second and Tenth Circuits. Id. at 603 & n.3 (citing Harms v. IRS , 321 F.3d 1001 (10th Cir. 2003); Downey v. Runyon , 1609
F.3d 139 (2d Cir. 1998)). And i n both o f those decisions, the
court s of appeals had suggested a distinction between procedural and jurisdictional dismissals

. See Harms , 321 F.3d at 1007

- 08; Downey , 160 F.3d at 145

- 46. In Harms , the Tenth Circuit expressly drew a divide bet ween “dismissals by the MSPB on procedural

. . . grounds, ” which it held must be appealed to district court, “ as op posed to [dismissals on] jurisdictional [] grounds, ” which under that court’s precedent
must go to the Federal Circuit. 321 F.3d at 1007. The Supreme Court in Kloeckner , aware of the Tenth Circuit’s decision in Harms
, repeatedly said that it was addressing only the proper forum for appealing MSPB d ismissals on “procedural grounds.”

In the oral argument in Kloeckner , the Justices ’ questions likewise manifested awareness of the potential distinction between procedural and jurisdictional dismissal s. Justice Sotomayor , after not ing that “[e]very circuit court unanimously holds that jurisdictional dismissals should go only t o the Federal Circuit ,” suggested that the argument for Federal

- Circuit jurisdiction “has more legs” in the jurisdictional context because “[t]he point is that you’re only permitted to go to district court on issues of discrimination that are wi thin the Bo ard’s jurisdiction.” Transcript of Oral Argument at 21

- 2 2

, Kloeckner , 133 S. Ct. 596 (No. 11

- 184) ( Resp . Supp. App. 22

- 23 )

. Similarly, Justice Ka gan

— who would la ter author the Court’s unanimous opinion

— observed that there “ seem [ ed ] to be a good deal of difference between the question, what happens to something that is clearly a mixed case, and alternatively, the question of whether something is a mixed case; that is, whether it includes a claim about an action which the employee may appeal to the MSPB .” Id. at 23

- 24 (Resp. Supp. App. 2 4

- 25 ) . She suggested that “ one could think that questions about what can be appealed to the MSPB ought to go to the Federal [C] ircuit10
under this statutory language in a way that questions that are involved in this case do not. ” Id. at 2 4 (Resp

. Supp. App. 25)

.
Of course, we do not mean to suggest that statements made in the course of questioning at oral argument can profitably be parsed for reliable indication s of the speaker’s position on the subject addressed

. W e therefore do not cite the Justices’ questions during the Kloeckner oral argument in support of the proposition that they had necessarily decided there is a material distinction between procedural and jurisdictional dismissals ( with the former appealed to d istrict

cour t and the latter to the Federal Circuit ) . Rather, the Justices’ questions

— like the Court’s citation of the Second and Tenth Circuit s ’ opinions

— indicate something more modest : awareness of the possibility of such a distinction. In that light, we understand Kloeckner ’s repeated (and consistent) references to “procedural” dismissals to have been made in the context of awareness of an argument that jurisdictional dismissals are different.

Of course, even though Kloeckner involved procedural rath er than jurisdictional dismissals, and even assuming the Court fashioned its decision with awareness that the distinction might be a material one, in theory the Court still might have “effectively overrule [ d ] ” our precedent in Powell if its decision in fac t turned out to be incompatible with Powell. Williams , 194 F.3d at 105; see Davis v. U.S. Sentencing Comm’n , 716 F.3d 660, 664

- 66 (D.C. Cir. 2013). But u nless Powell has been eviscerated in that manner, we, as a panel, have no leeway to depart from it

. We find no such incompatibility here. In reaching that result , we agree with the one other court of appeals to have addressed the same issue: the Federal Circuit has held that its pre

- Kloeckner decisions directing appeals from MSPB jurisdictional dism issals to its own court remain good law in the wake of11

Kloeckner

. Conforto v. MSPB , 713 F.3d 1111 , 1116

- 19 (Fed. Cir. 2013). We arrive at the same conclusion about our own parallel precedent in Powell

. In finding that Powell is not necessarily incompatible with Kloeckner , we focus on the statute’s description of a mixed case. Recall that an appeal from an MSPB decision generally belongs in the Federal Circuit unless the case appeal ed from is a mixed case, in which event review lies in the distr ict court. The statute describes a mixed case as one in which the employee both alleges discrimination and “has been affected by an action which [she] may appeal to the” MSPB. 5 U.S.C. § 7702(a)(1) (A) (emphasis added). Kloeckner thus describes “mixed cases” as “those appealable to the MSPB and alleging discrimination.” 133 S. Ct. at 604 (emphasis added).

The emphasized statutory language suggests a distinction between jurisdictional dismissals ( like those in this case and Powell ) and procedural dismissals ( like the one in Kloeckner )

. See Conforto , 713 F.3d at 1118. As to the former, when an employee brings a case she believes qualifi es as a mixed case to the MSPB but the Board dismisses her appeal based on a lack of jurisdictio n, the Board necessarily concludes that she has not “been affected by an action which [she] may appeal to the” MSPB. 5 U.S.C. § 7702(a)(1) (A)

. She instead has been affected by an action which she may not appeal to the MSPB. The case, in other words, tur ns out not to be a mixed case after all

— it is not one “ appealable to the MSPB. ” Kloeckner

, 133 S. Ct. at 604.

When the Board dismisses an appeal on a procedural ground, however , the case may still be viewed as one in which the employee was “affected by an action which [she] may appeal to the ” MSPB. 5 U.S.C. § 7702(a)(1) (A)

. In12
such cases, t he action was amenable to an appeal to the Board, but her appeal was dismissed on some procedural ground. In Kloeckner , accordingly, the Court said that “ [n]o

one here contes ts that Kloeckner brought a mixed case

— that she was affected by an action ( i.e.
, removal) appealable to the MSPB and that she alleged discrimination.” 133 S. Ct. at 604. The Board dismissed her appeal, not because the case was unappealable, b ut because the appeal was untimely. Id.

Perry argues that Kloeckner eviscerates any effort to distinguish between jurisdictional and procedural dismissals on the theory that only the latter involves “ an action which the employee . . . may a ppeal to the” MSPB. 5 U.S.C. § 7702(a)(1) (A) . According to Perry, even if Kloeckner described mixed cases as ones “appealable to the MSPB,” that language is no less applicable to appeals dismissed on procedural grounds than to appeals dismissed on jurisdictional
gro unds. In either case, Perry contends, the case was not “appealable to the MSPB.” See Kloeckner , 133 S. Ct. at 604. The Federal Circuit found that argument unpersuasive. S ee Conforto

, 713 F.3d at 1118 n.1

. W e, too, conclude that the argument does not compel finding Kloeckner ’s result for procedural dismissals incompatible with Powell ’s result for jurisdictional dismissals.

First, jurisdictionally barred appeals differ from procedurally barred appeals because the former were never “appealable to the MSPB.” Kloeckner , 133 S. Ct. at 604. In the latter situation, by contrast, the employee can be seen to have “ been affected by an action which [she] may appeal to the” MSPB. 5 U.S.C. § 7702(a)(1) (A)

. That statutory language draws attention to the contes ted “action

, ” and in the case of a procedural dismissal, the action affecting the employee is one she can appeal to the Board. It may turn out that she brings her appeal in a procedurally deficient13

fashion

— such as by bringing it too late

— but the action it self was appealable. That is not the case with a jurisdictional dismissal.

In addition, with procedurally defective appeals, unlike jurisdictionally barred appeals, the Board can excuse the procedural error and pe rmit the appeal to go forward. As the F ederal Circuit explained, the “Board has the authority to entertain appeals that are procedurally defective under its own regulations, but it may not hear a case over which it lacks jurisdiction.” Conforto , 713 F.3d at 1118 n.1 ( citation omitted ). The applicable regulations give the Board discretion to “revoke, amend, or waive” any regulatory requirement “unless a statute requires a pplication of the regulation.” 5 C.F.R. § 1201.12; see also 5 C.F.R. § 1201.22(c) (enabling Board to excuse untimeliness if “ a good reason for the delay is shown ”).

For those reasons, procedural dismissals can be understood to involve an employee “affected by an action which [she] m a y appeal to the Board

, ” in a way that jurisdictional dismissals cannot

. 5 U.S.C. § 7702(a )(1)(A). That suffices to show that Kloeckner did not necessarily overrule or eviscerate Powell

. Finally, Perry raises a series of arguments that equally could have been made at the time we decided Powell . For instance, he contends that the statute contains a number of deadlines whose effective operation would require knowing whether a case qualifies as a mixed case in advance of the Board’s ultimate decision about its jurisdiction. See, e.g.

, id. § 7702(a)(2), (e)(1)(B), (e) (2). As a result, he submits, the forum for judicial review cannot vary based on the Board’s eventual decision about its jurisdiction. Such a result, Perry further contends, would give rise to unwarranted uncertainty14
about the proper forum for judicial r eview. Whatever else may be true about those arguments, we have no occasion to consider them for the following reason : they gain no additional traction from the Supreme Court’s decision in Kloeckner , and we therefore have no authority to rely on them

as a basis for reconsidering our precedent in Powell

. The same is true of Perry’s argument that it would make sense for judicial review to reside in federal district courts because jurisdictional dismissals grounded in the voluntariness of the challenged em ployment action (as in this case) can overlap with the m erits of a discrimination claim

. That contention not only could have been made in Powell , but

we in fact specifically considered (and rejected) it. See 158 F.3d at 599

- 600

. Kloeckner affords us no license to revisit that conclusion. Rather, we are bound to adhere to Powell ’s direction that, when the Board dismisses an appeal for lack of jurisdiction, “ the boundaries of the Board’s [own] jurisdiction should be subject to uniform interpretation in a single forum

— the Federal Circuit.” Id. at 600.

In short, we remain bound by Powell . And in accordance with our precedent in that case, we transfer this petition for review to the Federal Circuit.

So ordered.