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Dewey Publications Inc.
News and Case Alert
Issue #4-12
In this issue...
The Supreme Court Weighs in on Mixed Case Procedures



A Guide to the Whistleblower Protection Act & Whistleblower Protection Enhancement Act of 2012

By: Fowler & Vitaro
Price: $190.00
Sku: 12WPA
Edition: 1st/2012
Availability: Early 2013
Format: Book, CD, or eBook

With insight and practice tips, this comprehensive and practical guide sorts the laws and procedures related to whistleblower reprisal. The guide includes in depth discussion of the Whistleblower Protection Act, the Whistleblower Protection Enhancement Act of 2012 signed by President Obama on November 27, 2012, OSC and MSPB regulations (updated as of November 13, 2012, the effective date of the MSPB's recent regulatory revisions), noteworthy cases, and the Presidential Policy Directive (PPD-19) issued October 10, 2012. Major topics include legislative history and sources of law; MSPB basics; OSC operations; corrective and disciplinary actions; IRAs and otherwise appealable actions; grievances and whistleblower reprisal claims; stays; burdens of proof; qualifying disclosures; prima facie case and contributing factor; and remedies, damages and relief.


In an effort to incorporate all the changes to Whistleblower law effecting federal employees, publication of this book will be slightly delayed. The authors are adding new text to address the Whistleblower Protection and Enhancement Act, the Presidential Policy Directive Protecting Employees With Access to Classified Information (PPD-19) and the MSPB's revisions to its procedural and whistleblower regulations (i.e., 5 CFR Part 1201, 1209.2-MSPB Jurisdiction Over IRAs and Otherwise Appealable Actions; 1209.4-redefining "whistleblowing"; and 1209.5-Time of Filing). Dewey expects to have the book available for delivery in early 2013.


More details at:


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The Supreme Court Weighs in
on Mixed Case Procedures

Kloeckner v. Solis, No. 11-184
(December 10, 2012)

by Natania Davis


On Monday, the US Supreme Court held that the proper venue for appeals from mixed case MSPB determinations is the district court, not the Federal Circuit, regardless of whether the MSPB decided the mixed case on procedural grounds or on the merits.




Kloeckner involved a mixed case appeal from Kloeckner's removal, which the MSPB dismissed as untimely. Kloeckner appealed that decision in district court, alleging her appeal was timely and that she was a victim of discrimination. The district court dismissed for lack of subject matter jurisdiction, opining that the proper appeal venue for a mixed case decided by the MSPB on procedural grounds was the Federal Circuit Court of Appeals.


The Eighth Circuit affirmed the district court's holding that it lacked jurisdiction to review the decision because the MSPB did not reach the merits of Kloeckner's discrimination claims. Kloeckner v. Solis, 639 F.3d 834 (8th Cir. 2011). Citing to the Federal Circuit's decision in Ballentine v. MSPB, 738 F.2d 1244 (Fed. Cir. 1984), the Eighth Circuit held that the Federal Circuit has exclusive jurisdiction over such appeals.


The Decision


The analysis as to "whether an employee seeking judicial review should proceed in the Federal Circuit or in district court when the MSPB has dismissed [a] mixed case on procedural grounds", according to the Court, is "plain":


Begin with §7703, which governs judicial review of the MSPB's rulings. As already noted, §7703(b)(1) provides that petitions to review the Board's final decisions should be filed in the Federal Circuit- "[e]xcept as provided in paragraph (2) of this subsection." Paragraph (2), i.e., §7703(b)(2), then sets out a different rule for one category of cases-"[c]ases of discrimination subject to the provisions of section 7702 of this title." Such a case, paragraph (2) instructs, "shall be filed under" the enforcement provision of an enumerated antidiscrimination statute. And each of those enforcement provisions authorizes an action in federal district court. So "[c]ases of discrimination subject to the provisions of section 7702" shall be filed in district court.


Turn next to §7702, which identifies the cases "subject to [its] provisions." As also stated earlier, §7702(a)(1) de- scribes cases in which a federal employee "(A) has been Systems Protection Board, and (B) alleges that a basis for the action was discrimination prohibited by" a listed federal statute. The subsection thus describes what we (adopting the lingo of the applicable regulations) have called "mixed cases." See 29 CFR §1614.302. Those are the "cases of discrimination subject to" the rest of §7702's provisions.


Now just put §7703 and §7702 together-say, in the form of a syllogism, to make the point obvious. Under §7703(b)(2), "cases of discrimination subject to [§7702]" shall be filed in district court. Under §7702(a)(1), the"cases of discrimination subject to [§7702]" are mixed cases-those appealable to the MSPB and alleging discrimination. Ergo, mixed cases shall be filed in district court.


...Klockener brought the kind of case that the CSRA routes, in crystalline fashion, to district court.


Rejecting the agency's argument that, under CSRA, MSPB merits decisions are directed to the district court while procedural ruling are the province of the Federal Circuit, Justice Kagan, in a humorous opinion of the Court, derided the agency's analysis essentially as absurd, noting "the Government's mazelike tour of the CSRA." Read the opinion, if for no other reason, than mid-afternoon entertainment.


For more discussion on mixed case procedures, see A Guide to MSPB Law and Practice by Broida, A Guide to Federal Sector EEO Law and Practice by Hadley, MSPB Summaries by Broida & Davis and Consolidated Federal Sector EEO Update 2004-2012 by Vitaro, Goodfriend & Gilbert.


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