Perry v. Merit Systems Protection Board, No. 14-1155 (D.C. Cir. 2016)Annotate this Case
In Kloeckner v. Solis, the Supreme Court held that when the Board dismisses a mixed-case appeal without reaching the merits on a procedural ground - there, untimeliness - judicial review resides in district court (as when the Board reaches the merits), not the Federal Circuit. At issue in this appeal is whether Kloeckner effectively overruled this court's decision in Powell v. Dep’t of Def. The court held that it does not and that the court's precedent requires transferring the case to the Federal Court. The court found that Powell is materially indistinguishable from this case. Like Powell, petitioner resolved a disciplinary issue by agreeing to a significant employment action that could be appealed to the Board if involuntary. Like Powell, petitioner 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, petitioner contends that review of the Board’s dismissal lies in district court. The court rejected that argument in Powell. Accordingly, the court transferred the petition for review to the Federal Circuit.
- Perry v. Merit Systems Protection Board, No. 16-399 (U.S. Jun. 23, 2017)