Kloeckner v Solis - Oral Argument - October 02, 2012

Kloeckner v Solis

Media for Kloeckner v Solis

Audio Transcription for Opinion Announcement - December 10, 2012 in Kloeckner v Solis

Audio Transcription for Oral Argument - October 02, 2012 in Kloeckner v Solis

John G. Roberts, Jr.:

We'll hear argument first this morning in Case 11-184, Kloeckner v. Solis.

Mr. Schnapper.

Eric Schnapper:

Mr. Chief Justice, and may it please the Court:

The first sentence of Section 7703(b)(2) provides that district courts have jurisdiction over all mixed cases, and that provision is largely dispositive here.

The second section of 7703(b)(2) on which the government relies is a statute of limitations, and it doesn't limit the jurisdiction of Federal courts.

That subsection is set out at pages 16a to 17a of the government's brief.

The first sentence provides that for a described category of cases, they are to be, quote,

"filed under one of the listed federal antidiscrimination statutes. "

As this Court pointed out in Elgin, all of those are statutes which authorize jurisdiction in claims in district courts.

Indeed, in Title VII and the ADEA, that is the only Federal court which is authorized to hear the cases.

Ruth Bader Ginsburg:

Mr. Schnapper, could you clarify what the district court, as you see it, does?

Does it deal only with the discrimination claim, or does it deal with the MSPB's procedural ruling?

Eric Schnapper:

With regard to the -- when the case gets to district court, there may be two substantive claims, a discrimination claim and a CSRA claim.

Your question, I take it, is about the former.

Our view is that the claim is filed and pled, as indeed it was pled in this case, as a discrimination case; in this case, under several different statutes.

And the complaint here reads very much like an ordinary discrimination complaint.

The government may raise the -- that sort of procedural issue as an affirmative defense, and it would be free to do so here.

And that -- that happens on a number of occasions.

For example, if there were a case in which the Plaintiff had not, as required by the regulations, appealed to the MSPB within 30 days of the -- of receipt of the agency decision, the government could move to dismiss that claim on what the lower courts call exhaustion grounds.

And the lower courts have repeatedly sustained those motions--

John G. Roberts, Jr.:

Mr. Schnapper--

Eric Schnapper:

--but that's a determinative defense.

John G. Roberts, Jr.:

--But the critical point, I gather, is what standard of review the district court will apply to that exhaustion question, or the bottom question, right?

I assume you think that the standard review in the district court is going to be more favorable to your client than the standard -- the arbitrary and capricious standard that would be applicable in the Federal circuit?

I guess--

Eric Schnapper:

When it's come up, Your Honor, it has generally been a question of law, like whether the 30-day rule had applied.

If you had something that was -- if it were a factual issue, our contention is then those Section 7703(c) factual issues have to be decided de novo.

Ruth Bader Ginsburg:

Why don't we take this -- this very case, where the MSPB said that -- that the claim was time barred, so the government would raise it as an affirmative defense.

Eric Schnapper:

And the first question would be whether it's an affirmative defense at all, and our position would be that it is not.

Not everything that could go awry in the internal procedure is an affirmative defense.