Perry v. Merit Systems Protection Board

PETITIONER: Anthony W. Perry
RESPONDENT: Merit Systems Protection Board
LOCATION: John C. Kluczynski Federal Building

DOCKET NO.: 16-399
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

GRANTED: Jan 13, 2017

Facts of the case

In the mid-2000s, Anthony Perry began to develop osteoporosis, so in order to alleviate his pain and to ensure that he could continue working, he made an informal agreement with his supervisor at the U.S. Census Bureau. The deal allowed Perry to take breaks throughout the day to control the symptoms of his osteoporosis, and to make up any time lost during the workday after hours with no penalty. On June 7, 2011, Perry received a proposed removal notice that alleged that he had been paid for hours that he had not worked. He contested the charges and pointed to the informal agreement he and his supervisor had made and his unblemished performance record. In August 2011, Perry and the agency entered into an agreement that required him to serve a thirty-day suspension, to retire on or before September 4, 2012, and to forfeit any discrimination claims against the agency. After serving his suspension and retiring, Perry brought a pro se claim before the Merit Systems Protection Board, the federal board that is authorized the hear certain challenges by federal employees to adverse employment actions. An administrative law judge (ALJ) initially ruled that the Board lacked jurisdiction because retirements are presumed to be voluntary, and the Board cannot review claims that resulted in settlement with the agency. Perry appealed to the Board, which remanded the case. Upon further review, the ALJ again denied that it had jurisdiction and held that Perry had not sufficiently shown that he was improperly coerced into settling his claims. Perry appealed to the Board again, which affirmed the ALJ’s ruling. Perry appealed to the U.S. Court of Appeals for the D.C. Circuit, which transferred the case to the U.S. Court of Appeals for the Federal Circuit based on a lack of proper jurisdiction.The appellate court docketed the case but granted Perry’s motion to suspend proceedings until the U.S. Supreme Court resolves the jurisdictional issue of which court system should hear the case.


Is a Merit Systems Protection Board decision disposing of an employment discrimination case on jurisdictional grounds subject to judicial review in district court or in the U.S. Court of Appeals for the Federal Circuit?