by
Tanya Ward Jordan, President
The Coalition For Change, Inc. (C4C)

On Monday, April 17th, many present and former federal employees lined up to witness the Supreme Court justices open their April session with the case of Anthony Perry, a former Department of Commerce Census Bureau employee and a member of the Coalition For Change, Inc. (C4C).

The question the Supreme Court with newly appointed Judge Neil Gorsuch on the bench must answer is — Whether a Merit Systems Protection Board (MSPB) decision dismissing a mixed case on “jurisdictional grounds” is subject to judicial review in district court or in the U.S. Court of Appeals for the Federal Circuit.

If the Perry case is allowed to proceed in district court it has a far more likely chance of being heard by a jury. For the U.S. Court of Appeals for the Federal Circuit is known to largely “RUBBER STAMP” federal agency decisions.

Christopher Landau, who represented Perry, urged the court to rule that mixed cases like his client’s should go to the district court. But, Brian Fletcher, assistant to the U.S. solicitor general, argued on behalf of the federal government. Fletcher disagreed asserting Perry’s case should go to the U.S. Court of Appeals for the Federal Circuit.

If the Supreme Court were to send Perry’s case to the Court of Appeals for the Federal Circuit, rather than the U.S. District Court, it would be indeed a civil rights blow for Federal workers who challenge unlawful civil rights violations and adverse actions (i.e. wrongful demotions, suspensions, and job terminations). For “some studies report that the U.S. Courts of Appeals affirmed 90 percent of all cases they decided from 1995 to 2005.”  (See footnote 1)

Penn State Law students submitted an amicus brief to Supreme Court in support of Mr. Perry’s right to pursue his claims in U.S. District Court. The amicus brief read:
“The issue at the center of Perry v. Merit Systems Protection Board stems from a 2012 Supreme Court decision, in which the Court held that federal employees whose discrimination claims are dismissed on procedural grounds by the MSPB are entitled to have their cases heard on the merits in federal district court. The Civil Rights Appellate Clinic, along with plaintiff Anthony Perry, argued that a federal employee’s discrimination claim dismissed on jurisdictional grounds, as opposed to procedural grounds, is entitled to the same type of review.”   Read more at link http://news.psu.edu/story/456966/2017/03/21/penn-state-law-students-submit-amicus-brief-supreme-court

The upcoming Supreme Court of the United States (SCOTUS) decision on the Perry case will most likely close the loop and provide clarity for many federal workers, like Perry, who are often coerced into signing settlement agreements that require them to drop valid discrimination claims against the federal government.

Footnote 1: https://www.dcbar.org/bar-resources/publications/washington-lawyer/articles/october-2012-taking-the-stand.cfm