Sometime employment litigation is complicated, so much so that the parties and judges cannot even agree on which court has jurisdiction to hear an appeal.

The justices of the U.S. Supreme Court recently tried to wade through the wording of a complex statute to determine whether a federal employee could appeal a decision involving claims of both unlawful termination and employment bias to a U.S. District Court, or if the Federal Circuit was the only available venue.

The case, Kloeckner v. Solis, involves Carolyn Kloeckner, who worked for the Department of Labor and took a leave of absence before filing a discrimination claim with the Equal Employment Opportunity Commission. She amended the complaint to add a retaliation charge when the DOL reclassified her as “absent without leave.”

While the complaint was pending at the EEOC, the DOL fired Kloeckner. She appealed the termination decision to the Merit Systems Protection Board, which was established under the Civil Service Reform Act to hear appeals of certain adverse employment actions against federal employees, such as dismissals but not discrimination claims.

To avoid duplicative proceedings, Kloeckner amended her EEOC claim to include the dismissal charge, and was granted a motion to dismiss the Merit Systems Protection Board appeal without prejudice, which would have allowed her to refile at the conclusion of the EEOC proceeding or by Jan. 18, 2007, whichever occurred first.

The EEOC returned its case to the DOL for a final determination, and the DOL ruled against Kloeckner. She appealed to the Merit Systems Protection Board — after the January 2007 date — and the board dismissed her appeal as untimely.

The plaintiff then filed an action in federal District Court on the discrimination claim and appealed the board’s dismissal, but the District Court dismissed the case on the grounds that the Federal Circuit had exclusive subject matter jurisdiction.

Kloeckner appealed again, arguing that the Federal Circuit does not have exclusive jurisdiction over such “mixed cases” in which the MSPB portion of the claim was not considered on the merits.

The 8th Circuit disagreed and affirmed. The U.S. Supreme Court granted Kloeckner certiorari petition.

Standards of review

At oral arguments in the case, Kloeckner’s lawyer, Eric Schnapper, was asked by Chief Justice John G. Roberts Jr. if the case was about forum shopping.

“I assume you think that the standard review in the District Court is going to be more favorable to your client than [the] arbitrary and capricious standard that would be applicable in the Federal Circuit?” Roberts asked.

“Our contention is [that] factual issues have to be decided de novo,” said Schnapper, a professor at the University of Washington School of Law.

Later, he elaborated: “The discrimination claim is dealt with de novo. The intent of Congress was that it would generally be treated like a private discrimination claim.”

Justice Samuel A. Alito Jr. pointed out that the statute “sets out the standard of review in the Federal Circuit for a nondiscrimination claim, but it pointedly says nothing about the District Court.”

“Doesn’t that suggest that that claim doesn’t go to the District Court?” Alito asked.

“Your honor, that question isn’t here because we haven’t asserted a CSRA claim,” Schnapper said. “And if you have doubts about it, I think I would reserve that for another case.”

Justice Anthony M. Kennedy questioned whether Congress anticipated such mixed claims when the law was passed.

“I’ve probably led a charmed life, but I’ve never heard of ‘mixed cases’ until this matter came before us,” Kennedy said.

“Well, your honor, you have led a charmed life,” Schnapper said, before noting that the phrase was used by the EEOC and Congress before the law was passed.

‘Say it again?’

Department of Justice attorney Sarah E. Harrington’s job was made tougher by legal terms of art that made the complicated case even more confusing.

Harrington stressed that “in various cases over the last 25 years, [courts found] an exclusive grant of judicial review of jurisdiction in the Federal Circuit over MSPB final decisions.”

“Now, does that mean that it is not a judicially reviewable action if it is thrown out on a procedural ground?” asked Roberts, referring to the fact that the MSPB dismissed the case as untimely without deciding the merits.

“Although dismissal on procedural grounds is a board action subject to judicial review, in our view it’s not a judicially reviewable action,” Harrington said, drawing puzzled looks from the justices.

“Could you say that again?” Roberts asked. “A little more slowly?”

“A procedural dismissal by the board is a final board action that’s subject to judicial review in the Federal Circuit,” Harrington said. “But it does not fall within the term of art ‘judicially reviewable action’” under federal law.

“OK,” Roberts said. “I thought that your argument in the brief reduced to the question that an action subject to judicial review in one section is not judicially reviewable in another.”

“Say it again?” Harrington said, drawing laughs from the audience.

“More slowly,” Justice Antonin G. Scalia said, drawing more laughs.

“This is going to happen a lot,” Harrington observed.

A decision is expected later in the term.