United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 18, 2015 Decided July 22, 2016

No. 14-1155

ANTHONY W. PERRY,

PETITIONER

v.

MERIT SYSTEMS PROTECTION BOARD,

RESPONDENT

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: GRIFFITH, SRINIVASAN and MILLETT, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge SRINIVASAN.
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SRINIVASAN, 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 of 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 certain federal statutes. If 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. In that circumstance, review lies in the 

Federal Circuit rather than district court. Powell v. Dep’t of 

Def., 158 F.3d 597 (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 when the Board dismisses a mixed-case appeal without 

reaching the merits on a procedural ground—there, 
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untimeliness—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 our 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 transfer 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 to 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. The 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 discrimination 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.
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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 

that, 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: because 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 case 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 been 

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 district court. Because 

Perry has fully joined amicus’s arguments on those issues, we

will refer to them collectively as Perry.
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II.

The question we confront is which federal court has 

jurisdiction to review the Board’s dismissal of Perry’s case. 

We can quickly rule out one court—ours. Although Perry 

initially petitioned for review in this court, he now 

acknowledges that this court lacks jurisdiction. The Board 

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 appeals over cases in which 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 about 

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 Board’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’s 
6

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 normally 

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 dismissed 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. 

Department of Defense, 158 F.3d 597. There, after 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 separation 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 Boardjurisdictional 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, 

unless 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.

Nuclear Regulatory Comm’n, 863 F.2d 968, 978 n.11 (D.C. 

Cir. 1988). “The question” for us is whether the intervening 
8

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 

overrules” or “eviscerates” 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 Board 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 jurisdictional 

dismissals. In explaining that it had granted 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 procedural 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, 160 
9

F.3d 139 (2d Cir. 1998)). And in both of those decisions, the 

courts 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 between “dismissals by 

the MSPB on procedural . . . grounds,” which it held must be

appealed to district court, “as opposed 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 dismissals on 

“procedural grounds.”

In the oral argument in Kloeckner, the Justices’ questions

likewise manifested awareness of the potential distinction 

between procedural and jurisdictional dismissals. Justice 

Sotomayor, after noting that “[e]very circuit court 

unanimously holds that jurisdictional dismissals should go 

only to 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 within the Board’s jurisdiction.” Transcript of Oral 

Argument at 21-22, Kloeckner, 133 S. Ct. 596 (No. 11-184) 

(Resp. Supp. App. 22-23). Similarly, Justice Kagan—who 

would later 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. 24-25). She 

suggested that “one could think that questions about what can 

be appealed to the MSPB ought to go to the Federal [C]ircuit
10

under this statutory language in a way that questions that are 

involved in this case do not.” Id. at 24 (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 indications of the speaker’s

position on the subject addressed. We 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 district 

court and the latter to the Federal Circuit). Rather, the 

Justices’ questions—like the Court’s citation of the Second 

and Tenth Circuits’ 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 

rather 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 fact 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 unless 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 

dismissals to its own court remain good law in the wake of
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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 

appealed from is a mixed case, in which event review lies in 

the district 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 qualifies as a mixed case 

to the MSPB but the Board dismisses her appeal based on a 

lack of jurisdiction, 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, turns 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). In 
12

such cases, the 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 contests 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, but 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 appeal 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 

grounds. 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. See 

Conforto, 713 F.3d at 1118 n.1. We, 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 contested “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 deficient 
13

fashion—such as by bringing it too late—but the action itself 

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 permit the appeal to go forward. As the 

Federal 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 application 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] may 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 uncertainty 
14

about the proper forum for judicial review. 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 employment action (as in this 

case) can overlap with the merits 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.