Perry v. Merit Systems Protection Board

the district of columbia circuit No. 16–399. Argued April 17, 2017—Decided June 23, 2017 Under the Civil Service Reform Act of 1978 (CSRA), the Merit Systems Protection Board (MSPB or Board) has the power to review certain serious personnel actions against federal employees. If an employee asserts rights under the CSRA only, MSPB decisions are subject to judicial review exclusively in the Federal Circuit. 5 U. S. C. § 7703(b)(1). If the employee invokes only federal antidiscrimination law, the proper forum for judicial review is federal district court. See Kloeckner v. Solis, 568 U. S. 41, 46. An employee who complains of a serious adverse employment action and attributes the action, in whole or in part, to bias based on race, gender, age, or disability brings a “mixed case.” When the MSPB dismisses a mixed case on the merits or on procedural grounds, review authority lies in district court, not the Federal Circuit. Id., at 50, 56. This case concerns the proper forum for judicial review when the MSPB dismisses such a case for lack of jurisdiction. Anthony Perry received notice that he would be terminated from his employment at the U. S. Census Bureau for spotty attendance. Perry and the Bureau reached a settlement in which Perry agreed to a 30-day suspension and early retirement. The settlement also required Perry to dismiss discrimination claims he had filed separately with the Equal Employment Opportunity Commission (EEOC). After retiring, Perry appealed his suspension and retirement to the MSPB, alleging discrimination based on race, age, and disability, as well as retaliation by the Bureau for his prior discrimination complaints. The settlement, he maintained, did not stand in the way, because the Bureau had coerced him into signing it. But an MSPB administrative law judge (ALJ) determined that Perry had flailed to prove that the settlement was coerced. Presuming Perry's retirement to be voluntary, the ALJ dismissed his case. Because voluntary actions are not appealable to the MSPB, the ALJ observed, the Board lacked jurisdiction to entertain Perry's claims. The MSPB affirmed, deeming Perry's separation voluntary and therefore not subject to the Board's jurisdiction. If dissatisfied with the MSPB's ruling, the Board stated, Perry could seek judicial review in the Federal Circuit. Perry instead sought review in the D. C. Circuit, which, the parties later agreed, lacked jurisdiction. The D. C. Circuit held that the proper forum was the Federal Circuit and transferred the

case there. Kloeckner did not control, the court concluded, because it addressed dismissals on procedural grounds, not jurisdictional grounds. Held: The proper review forum when the MSPB dismisses a mixed case on jurisdictional grounds is district court. Pp. 429–438.

(a) The Government argues that employees must split their mixed claims, appealing MSPB nonappealability rulings to the Federal Circuit while repairing to the district court to adjudicate their discrimination claims. Perry counters that the district court alone can resolve his entire complaint. Perry advances the more sensible reading of the statutory prescriptions. Kloeckner announced a clear rule: “[M]ixed cases shall be filed in district court.” 568 U. S., at 50; see id., at 56. The key to district court review is the employee's “clai[m] that an agency action appealable to the MSPB violates an antidiscrimination statute listed in § 7702(a)(1).” Ibid. (emphasis added). Such a nonfrivolous allegation of jurisdiction suffices to establish district court jurisdiction. EEOC regulations are in accord, and several Courts of Appeals have similarly described mixed-case appeals as those alleging an adverse action subject to MSPB jurisdiction taken, in whole or in part, because of unlawful discrimination. Perry, who “complain[ed] of a personnel action serious enough to appeal to the MSPB” and “allege[d] that the [personnel] action was based on discrimination,” brought a mixed case, and district court jurisdiction was therefore proper. Pp. 429–432. (b) The Government's proposed distinction—between MSPB merits and procedural decisions, on the one hand, and the Board's jurisdictional rulings, on the other—has multiple infirmities. Had Congress wanted to bifurcate judicial review, sending merits and procedural decisions to district court and jurisdictional dismissals to the Federal Circuit, it could have said so. See Kloeckner, 568 U. S., at 52. The Government's newly devised attempt to distinguish jurisdictional dismissals from procedural dismissals is a departure from its position in Kloeckner. Such a distinction, as both parties recognized in Kloeckner, would be perplexing and elusive. The distinction between jurisdiction and the merits is also not inevitably sharp, for the two inquiries may overlap. And because the MSPB may issue rulings on alternate or multiple grounds, some “jurisdictional,” others procedural or substantive, allocating judicial review authority based on a separate rule for jurisdictional rulings may prove unworkable in practice. Perry's comprehension of the complex statutory text, in contrast, serves “[t]he CSRA's objective of creating an integrated scheme of review[, which] would be seriously undermined” by “parallel litigation regarding the same agency action.” Elgin v. Department of Treasury , 567 U. S. 1, 14. Pp. 432–437. 829 F. 3d 760, reversed and remanded.

Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, Alito, Sotomayor, and Kagan, JJ., joined. Gorsuch, J., filed a dissenting opinion, in which Thomas, J., joined, post, p. 438.

Christopher Landau argued the cause and filed briefs for petitioner.

Brian H. Fletcher argued the cause for respondent. With him on the brief were Acting Solicitor General Wall, Acting Assistant Attorney General Readler, Deputy Solicitor General Stewart, Eric J. Feigin, Marleigh D. Dover, and Stephanie R. Marcus.*

Justice Ginsburg delivered the opinion of the Court.

This case concerns the proper forum for judicial review when a federal employee complains of a serious adverse employment action taken against him, one falling within the compass of the Civil Service Reform Act of 1978 (CSRA), 5 U. S. C. § 1101 et seq., and attributes the action, in whole or in part, to bias based on race, gender, age, or disability, in violation of federal antidiscrimination laws. We refer to complaints of that order, descriptively, as “mixed cases.”

In the CSRA, Congress created the Merit Systems Protection Board (MSPB or Board) to review certain serious personnel actions against federal employees. If an employee asserts rights under the CSRA only, MSPB decisions, all agree, are subject to judicial review exclusively in the Federal Circuit. § 7703(b)(1). If the employee asserts no civil-service rights, invoking only federal antidiscrimination law, the proper forum for judicial review, again all agree, is a federal district court, see Kloeckner v. Solis, 568 U. S. 41, 46 (2012); the Federal Circuit, while empowered to review MSPB decisions on civil-service claims, § 7703(b)(1)(A), lacks

When a complaint presents a mixed case, and the MSPB dismisses it, must the employee resort to the Federal Circuit for review of any civil-service issue, reserving claims under federal antidiscrimination law for discrete district court adjudication? If the MSPB dismisses a mixed case on the merits, the parties agree, review authority lies in district court, not in the Federal Circuit. In Kloeckner, 568 U. S., at 50, 56, we held, the proper review forum is also the district court when the MSPB dismisses a mixed case on procedural grounds, in Kloeckner itself, failure to meet a deadline for Board review set by the MSPB. We hold today that the review route remains the same when the MSPB types its dismissal of a mixed case as “jurisdictional.” As in Kloeck-ner, we are mindful that review rights should be read not to protract proceedings, increase costs, and stymie employees, 1 but to secure expeditious resolution of the claims employees present. See Elgin v. Department of Treasury , 567 U. S. 1, 15 (2012) (emphasizing need for “clear guidance about the proper forum for [an] employee's [CSRA] claims”). Cf. Fed. Rule Civ. Proc. l.

A

The CSRA “establishes a framework for evaluating personnel actions taken against federal employees.” Kloeckner v. Solis, 568 U. S. 41, 44 (2012). For “particularly serious” actions, “for example, a removal from employment or a reduction in grade or pay,” “the affected employee has a right to appeal the agency's decision to the MSPB.” Ibid. (citing §§ 1204, 7512, 7701). Such an appeal may present a civil-service claim only. Typically, the employee may allege that

In Kloeckner, we explained, “[w]hen an employee complains of a personnel action serious enough to appeal to the MSPB and alleges that the action was based on discrimination, she is said (by pertinent regulation) to have brought a `mixed case.' ” Ibid. (quoting 29 CFR § 1614.302 (2012)). See also § 1614.302(a)(2) (2016) (defining “mixed case appeal” as one in which an employee “alleges that an appealable agency action was effected, in whole or in part, because of discrimination”). For mixed cases, “[t]he CSRA and regulations of the MSPB and Equal Employment Opportunity Commission (EEOC) set out special procedures . . . different from those used when the employee either challenges a serious personnel action under the CSRA alone or attacks a less serious action as discriminatory.” Kloeckner, 568 U. S., at 44–45.

As Kloeckner detailed, the CSRA provides diverse procedural routes for an employee's pursuit of a mixed case. The employee “may first file a discrimination complaint with the agency itself,” in the agency's equal employment opportunity (EEO) office, “much as an employee challenging a personnel practice not appealable to the MSPB could do.” Id., at 45 (citing 5 CFR § 1201.154(a) (2012); 29 CFR § 1614.302(b) (2012)); see § 7702(a)(2). “If the agency [EEO office] decides against her, the employee may then either take the matter to the MSPB or bypass further administrative review by suing the agency in district court.” Kloeckner, 568 U. S., at 45 (citing 5 CFR § 1201.154(b); 29 CFR § 1614.302(d)(1)(i)); see § 7702(a)(2). “Alternatively, the employee may initiate

Section 7702 prescribes appellate proceedings in actions involving discrimination. Defining the MSPB's jurisdiction in mixed-case appeals that bypass an agency's EEO office, § 7702(a)(1) states in relevant part:

“[I]n the case of any employee . . . who—

“(A) has been affected by an action which the employee . . . may appeal to the [MSPB], and “(B) alleges that a basis for the action was discrimination prohibited by [specified antidiscrimination statutes], “the Board shall, within 120 days of the filing of the appeal, decide both the issue of discrimination and the appealable action in accordance with the Board's appellate procedures . . . .” 2

Section 7702(a)(2) similarly authorizes a mixed-case appeal to the MSPB from an agency EEO office's decision. Then, “[i]f the MSPB upholds the personnel action (whether in the first instance or after the agency has done so), the employee again has a choice: She may request additional administrative process, this time with the EEOC, or else she may seek judicial review.” Kloeckner, 568 U. S., at 45 (citing § 7702(a)(3), (b); 5 CFR § 1201.161; 29 CFR § 1614.303).

Section 7703(b) designates the proper forum for judicial review of MSPB decisions. Section 7703(b)(1)(A) provides the general rule: “[A] petition to review a . . . final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit.” Section 7703(b)(2) states the

Federal district court is also the proper forum for judicial review, we held in Kloeckner, when the MSPB dismisses a mixed case on procedural grounds. Id., at 50, 56. We rested that conclusion on this syllogism: “Under § 7703(b)(2), `cases of discrimination subject to [§ 7702]' shall be filed in district court.” Id., at 50 (alteration in original). Further, “[u]nder § 7702(a)(1), [mixed cases qualify as] `cases of discrimination subject to [§ 7702].' ” Ibid. (third alteration in

The instant case presents this question: Where does an employee seek judicial review when the MSPB dismisses her civil-service case alleging discrimination neither on the merits nor on a procedural ground, but for lack of jurisdiction?

B

Anthony Perry worked at the U. S. Census Bureau until 2012. 829 F. 3d 760, 762 (CADC 2016). In 2011, Perry received notice that he would be terminated because of spotty attendance. Ibid. Later that year, Perry and the Bureau reached a settlement in which Perry agreed to a 30-day suspension and early retirement. Ibid. The agreement required Perry to dismiss discrimination claims he had separately filed with the EEOC. Ibid.

After retiring, Perry appealed his suspension and retirement to the MSPB. Ibid. He alleged discrimination on grounds of race, age, and disability, as well as retaliation by the Bureau for his prior discrimination complaints. Ibid. The settlement, he maintained, did not stand in the way, because the Bureau coerced him into signing it. Ibid.

An MSPB administrative law judge (ALJ) eventually determined that Perry had flailed to prove that the settlement was coerced. Perry v. Department of Commerce , No. DC– 0752–12–0486–B–1 etc. (Dec. 23, 2013) (initial decision), App. to Pet. for Cert. 32a, 47a. Presuming Perry's retirement to be voluntary, the ALJ dismissed his case. Id., at 33a, 47a. Voluntary actions are not appealable to the MSPB, the ALJ observed, hence, the ALJ concluded, the Board lacked jurisdiction to entertain Perry's claims. Id., at 51a.

Perry instead filed a pro se petition for review in the D. C. Circuit. 829 F. 3d, at 763. The court ordered jurisdictional briefing and appointed counsel to argue for Perry. Ibid. By the time the court heard argument, the parties had agreed that the D. C. Circuit lacked jurisdiction, but disagreed on whether the proper forum for judicial review was the Federal Circuit, as the Government contended, or federal district court, as Perry maintained. Ibid.

The D. C. Circuit held that the Federal Circuit had jurisdiction over Perry's petition and transferred his case to that court under 28 U. S. C. § 1631. 829 F. 3d, at 763. The court's disposition was precedent-bound: In a prior decision, Powell v. Department of Defense , 158 F. 3d 597, 598 (1998), the D. C. Circuit had held that the Federal Circuit is the proper forum for judicial review of MSPB decisions dismissing mixed cases “on procedural or threshold grounds.” See 829 F. 3d, at 764, 767–768. Notably, Powell ranked as a “procedural or threshold matter” “the Board's view of its jurisdiction.” 158 F. 3d, at 599 (internal quotation marks omitted).

The D. C. Circuit rejected Perry's argument that Powell was undermined by this Court's intervening decision in Kloeckner, which held MSPB procedural dispositions of mixed cases reviewable in district court. 829

We granted certiorari to review the D. C. Circuit's decision, 580 U. S. 1089 (2017), which accords with the Federal Circuit's decision in Conforto v. Merit Systems Protection Bd., 713 F. 3d 1111 (2013).

Federal employees, the Government acknowledges, have a right to pursue claims of discrimination in violation of federal law in federal district court. Nor is there any doubt that the Federal Circuit lacks authority to adjudicate such claims. See § 7703(c) (preserving “right to have the facts subject to trial de novo by the reviewing court” in any “case of discrimination” brought under § 7703(b)(2)). The sole question here disputed: What procedural route may an employee in Perry's situation take to gain judicial review of the MSPB's jurisdictional disposition of a complaint that alleges adverse action taken under the CSRA in whole or in part due to discrimination proscribed by federal law?

The Government argues, and the dissent agrees, that employees, situated as Perry is, must split their claims, appealing MSPB nonappealability rulings to the Federal Circuit while repairing to the district court for adjudication of their discrimination claims. As Perry sees it, one stop is all he

Section 7702(a)(1), the Government contends, marks a case as mixed only if the employee “has been affected by an action which the employee . . . may appeal to the [MSPB].” Brief for Respondent 15, 17–19, 21. An MSPB finding of nonap-pealability removes a case from that category, the Government asserts, and hence, from the purview of “[c]ases of discrimination” described in § 7703(b)(2). Id., at 21. Only this reading of the CSRA's provisions on judicial review— one ordering Federal Circuit review of any and all MSPB appealability determinations—the Government maintains, can ensure nationwide uniformity in answering questions arising under the CSRA. Id., at 26–32.

Perry emphasizes in response that § 7702(a)(1)(A)'s language, delineating cases in which an employee “has been affected by an action which the employee . . . may appeal to the [MSPB],” is not confined to cases an employee may successfully appeal to the Board. Brief for Petitioner 19. The MSPB's adverse ruling on the merits of his claim that the settlement was coerced, Perry argues, “did not retroactively divest the MSPB of jurisdiction to render that decision.” Id., at 21. The key consideration, according to Perry, is not what the MSPB determined about appealability; it is instead the nature of an employee's claim that he had been “affected by an action [appealable] to the [MSPB]” (here, suspension for more than 14 days and involuntary removal, see § 7512(1), (2)). See id., at 11, 23–24. Perry draws support for this argument from our recognition that “a party [may] establish jurisdiction at the outset of a case by means of a nonfrivolous assertion of jurisdictional elements,” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U. S. 527, 537 (1995). See Brief for Petitioner 21–22.

Perry, we hold, advances the more sensible reading of the statutory prescriptions. The Government's procedure-

As just noted, a nonfrivolous allegation of jurisdiction generally suffices to establish jurisdiction upon initiation of a case. See Jerome B. Grubart, Inc., 513 U. S., at 537. See also Bell v. Hood, 327 U. S. 678, 682–683 (1946) (To invoke federal-question jurisdiction, allegations in a complaint must simply be more than “insubstantial or frivolous,” and “[i]f the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction.”). So too here: Whether an employee “has been affected by an action which [she] may appeal to the [MSPB],” § 7702(a)(1)(A), turns on her well-pleaded allegations. Kloeckner, EEOC regulations, and Courts of Appeals' decisions are corroborative.

We announced a clear rule in Kloeckner: “[M]ixed cases shall be filed in district court.” 568 U. S., at 50. An employee brings a mixed case, we explained, when she “complains of a personnel action serious enough to appeal to the MSPB,” e. g., suspension for more than 14 days, § 7512(2), “and alleges that the action was based on discrimination,” id., at 44 (emphasis deleted). The key to district court review, we said, was the employee's “clai[m] that an agency action appealable to the MSPB violates an antidiscrimina-tion statute listed in § 7702(a)(1).” Id., at 56 (emphasis added).

EEOC regulations, see supra, at 424, are in accord: The defining feature of a “mixed case appeal,” those regulations instruct, is the employee's “ alleg[ation] that an appealable agency action was effected, in whole or in part, because of discrimination.” 29 CFR § 1614.302(a)(2) (2016) (emphasis added). Several Courts of Appeals have similarly described mixed-case appeals as those alleging an adverse action sub-

Because Perry “complain[ed] of a personnel action serious enough to appeal to the MSPB” (in his case, a 30-day suspension and involuntary removal, see supra, at 427; § 7512(1), (2)) and “allege[d] that the [personnel] action was based on discrimination,” he brought a mixed case. Kloeckner, 568 U. S., at 44. 5 Judicial review of such a case lies in district court. Id., at 50, 56.

The Government rests heavily on a distinction between MSPB merits and procedural decisions, on the one hand, and

“If Congress had wanted to [bifurcate judicial review,] send[ing] merits decisions to district court and procedural dismissals to the Federal Circuit,” we observed in Kloeckner, “it could just have said so.” Id., at 52. The same observation could be made about bifurcating judicial review here, sending the MSPB's merits and procedural decisions to district court, but its jurisdictional dismissals to the Federal Circuit.7

The Government's attempt to separate jurisdictional dismissals from procedural dismissals is newly devised. In Kloeckner, the Government agreed with the employee that there was “no basis” for a procedure-jurisdiction distinction. Brief for Respondent, O. T. 2012, No. 11–184, p. 25, n. 3; see Reply to Brief in Opposition, O. T. 2012, No. 11–184, pp. 1– 2 (stating employee's agreement with the Government that procedural and jurisdictional dismissals should travel together). Issues of both kinds, the Government there urged, should go to the Federal Circuit. Drawing such a distinction, the Government observed, would be “difficult and unpredictable.” Brief in Opposition in Kloeckner, O. T. 2012, No. 11–184, p. 15 (internal quotation marks omitted). Now,

A procedure-jurisdiction distinction for purposes of deter-mining the court in which judicial review lies, as both parties recognized in Kloeckner, would be perplexing and elusive. If a 30-day suspension followed by termination becomes nonappealable to the MSPB when the Board credits a release signed by the employee, one may ask why a determination that the employee complained of such adverse actions (suspension and termination) too late, i. e., after a Board-set deadline, does not similarly render the complaint nonappealable. In both situations, the Board disassociates itself from the case upon making a threshold determination. This Court, like others, we note, has sometimes wrestled over the proper characterization of timeliness questions. Compare Bowles v. Russell, 551 U. S. 205, 209–211, 215 (2007) (timely filing of notice of appeal in civil cases is “jurisdictional”), with id., at 217–219 (Souter, J., dissenting) (timeliness of notice of appeal is a procedural issue).

Just as the proper characterization of a question as jurisdictional rather than procedural can be slippery, the distinc-

Desirable as national uniformity may be, 11 it should not override the expense, delay, and inconvenience of requiring employees to sever inextricably related claims, resorting to two discrete appellate forums, in order to safeguard their rights. Perry's comprehension of the complex statutory text, we are persuaded, best serves “[t]he CSRA's objective of creating an integrated scheme of review[, which] would be seriously undermined” by “parallel litigation regarding the same agency action.” Elgin v. Department of Treasury, 567 U. S. 1, 14 (2012). See also United States v. Fausto, 484 U. S.

* * *

For the reasons stated, the judgment of the United States Court of Appeals for the District of Columbia Circuit is re-

It is so ordered.

Justice Gorsuch, with whom Justice Thomas joins, dissenting.

Anthony Perry asks us to tweak a congressional statute— just a little—so that it might (he says) work a bit more eff-ciently. No doubt his invitation is well meaning. But it's one we should decline all the same. Not only is the business of enacting statutory fixes one that belongs to Congress and not this Court, but taking up Mr. Perry's invitation also seems sure to spell trouble. Look no further than the lower court decisions that have already ventured where Mr. Perry says we should follow. For every statutory “fx” they have offered, more problems have emerged, problems that have only led to more “fixes” still. New challenges come up just as fast as the old ones can be gaveled down. Respectfully, I would decline Mr. Perry's invitation and would instead just follow the words of the statute as written.

Our case concerns the right of federal employees to pursue their employment grievances under the Civil Service Reform Act. Really, it concerns but a small aspect of that right. Everyone agrees that employees may contest certain adverse employment actions—generally serious ones like dismissals—before the Merit Systems Protection Board. See 5 U. S. C. §§ 7701–7702, 7512–7513. Everyone agrees, too, that employees are generally entitled to seek judicial review of the Board's decisions. See § 7703. The only question we face today is where. And on that question, the Act provides clear directions.

First, the rule. The Act says that an employee's appeal usually “shall be filed in . . . the Federal Circuit,” § 7703(b)(1)(A), which then applies a deferential, APA-style standard of review familiar to administrative law, § 7703(c). No doubt this makes sense, too, for Congress established the

Second, the exception. Congress recognized that sometimes agencies taking adverse employment actions against employees violate not just federal civil service laws, but also federal antidiscrimination laws. Usually, of course, employees who wish to pursue discrimination claims in federal district court must first exhaust those claims in proceedings before their employing agency. See, e. g., 42 U. S. C. § 2000e–16(c). But the Act provides another option. Employees affected by adverse employment actions that trigger the Act's jurisdiction may (but need not) elect to exhaust their discrimination claims before the Board. See 5 U. S. C. § 7702(a). They also may ask the Board to review discrimination claims already exhausted before their employing agencies, and in this way obtain an additional layer of administrative review. See ibid. In § 7702 of the Act, Congress proceeded to set forth the rules the Board must apply in reviewing these cases of discrimination. And it then said that “[c]ases of discrimination subject to the provisions of section 7702” are exempt from the default rule of Federal Circuit review and instead “shall be filed” in district court “under” specified antidiscrimination statutes like Title VII or the ADEA. § 7703(b)(2). At that point, district courts are instructed to engage in de novo factfnding, § 7703(c), not APA-style judicial review, just as they would in any other discrimination lawsuit.

Putting these directions together, the statutory scheme is plain. Disputes arising under the civil service laws head to the Federal Circuit for deferential review; discrimination cases go to district court for de novo review. Congress allowed employees an elective option to bring their discrimination claims to the Board, but didn't allow this option to de-

These rules also tell us all we need to know to resolve our case. Construing his pro se flings liberally, Mr. Perry pursued civil service and discrimination claims before the Board without first exhausting his discrimination claim before his own agency. The Board held that it couldn't hear Mr. Perry's claims because he hadn't suffered an adverse employment action sufficient to trigger its jurisdiction under the Act. Mr. Perry now seeks to contest the Board's assessment of its jurisdiction and win a review there that so far he's been denied. See, e. g., Brief for Petitioner 24. No doubt, too, he wants the chance to proceed on the merits before the Board for good reason: A victory there is largely unappealable by the government. See 5 U. S. C. §§ 7701, 7703(d); see also Brief for Respondent 34. And because the scope of the Board's jurisdiction is a question of civil service law, Mr. Perry must go to the Federal Circuit for his answer. If that court agrees with Mr. Perry about the scope of the Board's authority, he can return to the Board and argue the merits of his two claims. If instead the court agrees with the Board's assessment of its powers, then Mr. Perry still hasn't lost his chance to pursue his remaining discrimination claim, for he may seek to exhaust that claim in the normal agency channels and proceed to district court.

Mr. Perry, though, invites us to adopt a very different regime, one that would have the district court review the Board's ruling on the scope of its jurisdiction. Having to contest Board rulings on civil service and discrimination issues in different courts, he says, is a hassle. So, he submits, we should fx the problem by allowing civil service law questions to proceed to district court whenever an employee pursues a case of discrimination before the Board. In support of his proposal, he points us to a line of lower court cases

Mr. Perry's is an invitation I would run from fast. If a statute needs repair, there's a constitutionally prescribed way to do it. It's called legislation. To be sure, the demands of bicameralism and presentment are real and the process can be protracted. But the difficulty of making new laws isn't some bug in the constitutional design: it's the point of the design, the better to preserve liberty. Besides, the law of unintended consequences being what it is, judicial tinkering with legislation is sure only to invite trouble. Just consider the line of lower court authority Mr. Perry asks us to begin replicating now in the U. S. Reports. Having said that district courts should sometimes adjudicate civil service disputes, these courts have quickly and necessarily faced questions about how and when they should do so. And without any guidance from Congress on these subjects, the lower courts' solutions have only wound up departing further and further from statutory text—and invited yet more and more questions still. A sort of rolling, case-by-case process of legislative amendment.

Take this one. Recall that the statute says that de novo standard of review applies to cases filed in district court. See 5 U. S. C. § 7703(c). But everyone agrees that standard is poorly adapted to the review of administrative civil service decisions. So what's to be done with civil service disputes that tag along to district court? Rather than see the problem as a clue things have gone awry, lower courts following Williams have suggested that maybe civil service claims should be assessed under deferential standards of review the

But that's just the beginning. The statute allows only cases “filed under” certain specified federal antidiscrimina-tion statutes to proceed to district court. Those laws (of course) prescribe remedies to vindicate harms associated with discrimination, including equitable relief and damages. See, e. g., 29 U. S. C. § 633a(c). But what remedies can or should a district court afford a plaintiff in a run-of-the-mill civil service dispute that lands there? Might a plaintiff be forced to litigate in the district court only to be told at the end that no remedial authority exists? May a district court fashion some remedy in the absence of a statutory mandate to do so? Should it only adopt APA-style remedies prescribed by the Act for (again) the Federal Circuit? Who knows.

Answer all those questions and still more arise. What happens if the Board fully remedies an employee's discrimination claim, but rejects his simultaneously litigated civil service dispute? Should the employee go to district court with a stand-alone civil service complaint, to be nominally “fled” and adjudicated “under” a federal antidiscrimination statute? Or has by this point the case somehow transformed into one that should be sent to the Federal Circuit? Williams itself anticipated these particular problems but (notably) declined to take any stab at answering them. See 715 F. 2d, at 1491.

Still more and even curiouser questions follow. In some cases a district court will find the employee's discrimination claim meritless. When that happens, what should the district court do with a tag along civil service claim? Some lower courts after Williams have suggested that cases like these should be transferred back to the Federal Circuit in

And speaking of judicial economy, you might wonder what happened to the (no doubt efficient) policy Congress itself articulated when it declared that civil service issues should be decided by the Federal Circuit so they might be subject to a uniform body of appellate case law. See Fausto, 484 U. S., at 449; see also Elgin v. Department of Treasury , 567 U. S. 1, 13–14 (2012). In an effort to achieve a simulacrum of that statutory command, one Federal Circuit Judge has suggested that the regional circuits hearing tag along civil service issues should defer to Federal Circuit interpretations of civil service laws, much as federal courts defer to state courts on matters of state law when sitting in diversity. See Williams , supra , at 1492–1493 (Nichols, J., concurring). Call it a sort of Erie doctrine for the Federal Circuit—if, of course, one lacking any basis in federalism, not to mention the statutory text.

By this point, you might wonder too if accepting Mr. Perry's invitation will even wind up saving him (or those like him) any hassle at all. Not only because of all the complications that arise from accepting his invitation. But also because, regardless which court hears his case, Mr. Perry should wind up in the same place anyway. If the reviewing court (whichever court that may be) finds that the Board was wrong and it actually possessed jurisdiction over his civil service and discrimination claims, presumably the court will seek to send Mr. Perry back to the Board to adjudicate those claims. See Reply Brief 18 (agreeing with this point). Meanwhile, if the reviewing court concludes that the Board was right and it lacked jurisdiction over Mr. Perry's claims, presumably the court will require him to exhaust his remain-

Mr. Perry's proposal for us may be seriously atextual and practically unattractive, but perhaps it has one thing going for it, he says. While we of course owe no fealty to Williams or other lower court opinions, and are free to learn from, rather than repeat, their misadventures, Mr. Perry suggests our decision in Kloeckner v. Solis, 568 U. S. 41 (2012), requires us to rule for him. Whatever we think about the statute's plain terms, he says, we are bound by precedent to send him to district court all the same.

But I just don't see in Kloeckner what Mr. Perry would have us find there. This Court was not asked to decide— and did not decide—whether issues arising under the civil service laws go to district court. Rather, we were asked to answer the much more prosaic question where an employee seeking to pursue only a discrimination claim should proceed. See Pet. for Cert. in Kloeckner v. Solis, O. T. 2012, No. 11–184, p. i (“If the [Board] decides a mixed case without determining the merits of the discrimination claim, is the court with jurisdiction over that claim the Court of Appeals for the Federal Circuit or a district court?” (emphasis added)). And this Court simply (and quite rightly) responded to that question by holding that “[a] federal employee who claims that an agency action appealable to the [Board] violates an antidiscrimination statute . . . should seek judicial review in district court, not in the Federal Cir-

Mr. Perry replies that Kloeckner endorsed the idea that something called “mixed cases” should go to district court. But that term does not mean what he thinks it means. The phrase “mixed case” appears nowhere in the statute. Instead, it is but “lingo [from] the applicable regulations.” Id., at 50. And even those regulations don't say that civil service questions may go to district court. Instead, the regulations use the term “mixed cases” to describe administrative challenges where the employee both “complains of a personnel action serious enough to appeal to [the Board] and alleges that the action was based on discrimination. ” Id., at 44 (second emphasis added); see also 29 CFR § 1614.302(a)(2) (2016). The regulations thus simply acknowledge that some administrative matters are both sufficient to trigger the Board's authority and raise questions addressed by federal antidiscrimination statutes. They say nothing about what goes to district court.

Neither did Kloeckner redefine the term “mixed case” in some novel way. After discussing the regulatory definition of “mixed cases,” the decision proceeds to say just this:

“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 [Board] and alleging discrimination. Ergo, mixed cases shall be filed in district court.” 568 U. S., at 50 (some brackets in original; emphasis added).

In context, it seems clear that this passage only seeks to restate the statute, using the term “mixed cases” as short-

Now, admittedly, a footnote in Kloeckner did seem to go a step further and assume Williams' view that civil service claims may tag along with discrimination claims to district court. Kloeckner, 568 U. S., at 55–56, n. 4. But even by its terms such an assumption wouldn't help Mr. Perry, for he isn't seeking to pursue a discrimination claim in district court. By his own telling, he is seeking to overturn the Board's holding that it lacked jurisdiction to hear his administrative appeal so he might seek relief there in the first instance. And that, of course, raises only a question of civil service law. What's more, the footnote's discussion about Williams is no more than dicta. The footnote addressed only a policy argument from the government and said that argument flailed both under Williams and for other reasons “[i]n any event.” 568 U. S., at 56, n. 4. As near as I can tell, then, Mr. Perry would have us upend a carefully crafted statutory scheme on the strength of a comment in one sentence of one footnote offered in reply to a policy argument that flailed for other reasons anyway. Full respect for stare decisis does not demand so much from us. To the contrary, this Court has long made clear that where, as here, we have not “squarely addressed [an] issue, and have at most assumed [one side of it to be correct], we are free to address the issue on the merits.” Brecht v. Abrahamson, 507 U. S. 619, 631 (1993); see also Legal Services Corporation v. Velazquez, 531 U. S. 533, 557 (2001) (Scalia, J., dissenting) (“Judicial decisions do not stand as binding `precedent' for points that were not raised, not argued, and hence not analyzed”).

Notably, even the Court today doesn't read Kloeckner as holding that all civil service claims and issues must proceed

Beyond its claim about the statute's purpose, the Court offers little in the way of a traditional statutory interpretation. It does not explain how the result it reaches squares with the statute's text and structure, or grapple with the arguments presented here on those counts. The Court does not explain, for example, how exactly a civil service dispute might be said to be “filed under” a federal antidiscrimination statute, what the standard of review might apply in such a matter (nowhere discussed in the statute), or what the remedial powers of the district court could be in these circumstances. And it remains far from obvious whether the Court's eventual answers to questions like these will wind up yielding a regime better for employees, or instead one just different or even a good deal worse.

Indeed, the only answer the Court supplies to any of the questions raised above lies in a footnote and seems telling.

At the end of a long day, I just cannot find anything preventing us from applying the statute as written—or heard any good reason for deviating from its terms. Indeed, it's not even clear how overhauling the statute as Mr. Perry wishes would advance the efficiency rationale he touts. The only thing that seems sure to follow from accepting his invitation is all the time and money litigants will spend, and all the ink courts will spill, as they work their way to a wholly remodeled statutory regime. Respectfully, Congress already wrote a perfectly good law. I would follow it.