Supreme Court Unanimously Rejects Solicitor General’s “Tortuous Reading” and “Mazelike Tour” of Civil Service Reform Act

December 10th, 2012

Not a good day for the SG in Kloeckner v. Solis. Justice Kagan writing for the unanimous Court reject the government’s construction of the Civil Service Reform Act. The language is quite sharp and brutal.

A federal employee subjected to an adverse personnel action such as a discharge or demotion may appeal her agency’s decision to the Merit Systems Protection Board (MSPB or Board). See 5 U. S. C. §§7512, 7701. In that challenge, the employee may claim, among other things, that the agency discriminated against her in violation of a federal statute. See §7702(a)(1). The question presented in this case arises when the MSPB dismisses an appeal alleging discrimination not on the merits, but on procedural grounds. Should an employee seeking judicial review then file a petition in the Court of Appeals for the Federal Circuit, or instead bring a suit in district court under the applicable antidiscrimination law? We hold she should go to district court.

Though the area of law is complicated, Kagan writes that this case is “plain” and “crystalline.”

As the above account reveals, the intersection of fed- eral civil rights statutes and civil service law has produced a complicated, at times confusing, process for resolving claims of discrimination in the federal workplace. But even within the most intricate and complex systems, some things are plain. So it is in this case, where two sections of the CSRA, read naturally, direct employees like Kloeckner to district court. . . .

And so that is where Kloeckner’s case should have been filed (as indeed it was). No one here contests that Kloeckner brought a mixed case—that she was affected by an action (i.e., removal) appealable to the MSPB and that she alleged discrimination prohibited by an enumerated fed- eral law. And under the CSRA’s terms, that is all that matters. Regardless whether the MSPB dismissed her claim on the merits or instead threw it out as untimely, Kloeckner brought the kind of case that the CSRA routes, in crystalline fashion, to district court.

Way back when I did a lot of MSPB and CSRA work while clerking in the DoD General Counsel Office.

And here comes the ouch. Kagan calls the government’s approach “mazelike” and a “contrivance”

According to the Government, that bifurcated scheme, though not prescribed in the CSRA in so many words, lies hidden in the statute’s timing requirements. But we return from the Government’s mazelike tour of the CSRA persuaded only that the merits-procedure distinction is a contrivance, found nowhere in the statute’s provisions on judicial review.

Bench slap. And it gets worse. “Take a deep breath.”

If you need to take a deep breath after all that, you’re not alone. It would be hard to dream up a more round- about way of bifurcating judicial review of the MSPB’s rulings in mixed cases. If Congress had wanted to send merits decisions to district court and procedural dismissals to the Federal Circuit, it could just have said so. The Government has offered no reason for Congress to have constructed such an obscure path to such a simple result. And taking the Government’s analysis one step at a time makes it no more plausible than as a gestalt.

Oh, but the SG asks the Court to avoid the “absurd results” And how, by rewriting the statute! (last time the SG offered an avoidance canon like that it seems to have worked).  Not here:

Responding to this unwelcome outcome, the Government offers us an exit route: We should avoid “absurd results,” the Government urges, by applying §7702(e)(1)(B) only to “cases over which the Board continues to exert jurisdiction.” Brief for Respondent 27, 28, n. 4. But as the Government admits, that “gloss on the statute is not found in the text,” Tr. of Oral Arg. 50; the Government’s remedy requires our reading new words into the statute. We think a better option lies at hand. If we reject the Government’s odd view of “judicially reviewable actions,” then no absurdity arises in the first place: §7702(e)(1)(B) would have no bearing on any case the MSPB dismissed within 120 days, whatever the grounds. It is the Government’s own misreading that creates the need to “fix” §7702(e)(1)(B); take that away and the provision serves, as it was intended, only as a remedy for Board inaction.4

And this footnote gets tougher:

4 The Government supplements its tortuous reading of the CSRA’s text with an appeal to one of the statute’s purposes—in its words, “ensuring that the Federal Circuit would develop a uniform body of case law governing federal personnel issues.” Brief for Respondent 32. We have previously recognized that Congress, through the CSRA, sought to avoid “unnecessary layer[s] of judicial review in lower federal courts, and encourag[e] more consistent judicial decisions.” United States v. Fausto, 484 U. S. 439, 449 (1988) (internal quotation marks and some bracketing omitted). But in this case, the Government’s argument about the necessity of Federal Circuit review runs into an inconvenient fact: When Congress passed the CSRA, the Federal Circuit did not exist, and §7703(b)(1) thus provided, as the general rule, that a federal employee should appeal a Board decision to 1 of the 12 Courts of Appeals or the Court of Claims. See Civil Service Reform Act of 1978, 92 Stat. 1143. Moreover, the Government’s own approach would leave many cases involving federal employment issues in district court. If the MSPB rejects on the merits a complaint alleging that an agency violated the CSRA as well as an antidiscrimination law, the suit will come to district court for a decision on both questions. See Williams v. Department of Army, 715 F. 2d 1485, 1491 (CA Fed. 1983) (en banc). In any event, even the most formidable argument concerning the statute’s purposes could not overcome the clarity we find in the statute’s text.

This is a fun statutory interpretation opinion, and a serious rebuke of the government’s position.

Update: A meme describes this opinion well.