Senior Executives Association

The December 13th 2018 Senior Executives Association Presidential Rank Awards Leadership Summit was a day full celebration, thought leadership, networking and professional development education.   More than 500 senior leaders from government, the private sector and academia were on hand to recognize the 131 Presidential Rank Awards and have peer-to-peer discussions.   In addition, distinguished keynote speakers – Department of Energy Deputy Secretary Dan Brouillette; Margaret Weichert, Acting Director of OPM and Deputy Director for Management at OMB; and Joseph Heck, Chairman of the National Commission on Military, National and Public Service – discussed their leadership philosophies and recognized the enormous accomplishments of the PRA honorees.

Mixed Case Appeals Revisited

SEA General Counsel Debra Roth explains how to process mixed cases and why a mixed case appeal made it all the way up to the Supreme Court in the first case argued before Supreme Court Justice Neil Gorsuch. 

By Debra Roth, SEA General Counsel

Who would have thought the issue of which forum gets to decide which portion of a “mixed case” appeal would make it all the way to the Supreme Court, but there it is squarely before all nine justices awaiting decision this month. 

Mixed cases have long been a subject of confusion since their creation in the Civil Service Reform Act of 1978. A “mixed case” means you have a personnel action that is directly appealable to the MSPB, such as a removal, demotion, or suspension of 15 days or more, AND you have made a claim that this personnel action which is otherwise appealable to the MSPB was the result of unlawful Title VII (EEO) discrimination. Thus, it’s a mixed case because you have a personnel action over which the MSPB has direct jurisdiction, and you have a claim regarding the taking of that personnel action that is based on Title VII, giving you Title VII rights, to include the filing of a complaint of discrimination and right to take that claim into federal district court. The result is a series of ultra-complicated regulations, statutory provisions, and case law on how and when you get to pursue both parts of your appeal of the personnel action, and which forum (MSPB, district court, the US Court of Appeals for the Federal Circuit) gets to decide which aspect of your claim. 

Since the inception of the CSRA of 1978, the MSPB and Federal Circuit have had to grapple with these complexities. Now, in the first case argued before Supreme Court Justice Neil Gorsuch, the justices appeared to disagree about how the statutory mechanism works to handle “mixed cases.” The case before the Supreme Court is an appeal by a federal employee of his alleged involuntary retirement, which he claimed was the product of Title VII discrimination.  The issue in the case is whether, per the CSRA provisions, the MSPB’s decision is reviewable by a district court or only by the Federal Circuit. 

Because the federal employee’s MSPB appeal included a Title VII claim, he has the statutory right to take his Title VII claim into federal district court. But who gets to review the MSPB decision on the adverse action, the district court or the Federal Circuit? During oral argument in April, the Supreme Court justices seemed to all agree that the statutory scheme governing appeals into court of mixed cases is confusing, and not clear on this particular issue.  And some justices opined that the district court may only be able to statutorily hear the Title VII portion of the case while the Federal Circuit gets to review the MSPB portion on the adverse action. That would result in “claim splitting,” a result which some justices did not want to occur.

Frankly, mixed case appeals have long caused problems for federal workers in the processing of these types of cases.  While the Supreme Court will issue its decision by end of June, it may be time for a legislative fix to make it simpler for federal workers and agencies to resolve such disputes.

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Tags: general counsel, debra roth

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