Anthony Perry v. Gina Raimondo - Reply Brief For Court Appointed Amicus Curiae in Support of Appellant

USCA Case #22-5319 Document #2027359 Filed: 11/16/2023 Page 1 of 23
ORAL ARGUMENT NOT YET SCHEDULED

No. 22-5319
IN THE
United States Court of Appeals
for the District of Columbia Circuit
ANTHONY PERRY,
Petitioner - Appellant,
v.
GINA RAIMONDO, et al.,

Defendants - Appellees.
On Appeal from the United States District Court

for the District of Columbia
No. 1:17-cv-01932-TSC, Hon. Tanya S. Chutkan
REPLY BRIEF FOR COURT APPOINTED AMICUS CURIAE

IN SUPPORT OF APPELLANT
NATHANIEL A.G. ZELINSKY

CATHERINE E. STETSON
HOGAN LOVELLS US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5600
[email protected]
November 16, 2023 Court-appointed Amicus Curiae for

Appellant
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................................................................... ii
INTRODUCTION ..................................................................................................... 1
ARGUMENT ............................................................................................................. 4
I. A District Court Must Consider Discrimination Claims De

Novo ........................................................................................................... 4
II. The Merit Systems Protection Board Should Have Held An

Evidentiary Hearing.................................................................................... 8
CONCLUSION ........................................................................................................ 17
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
i
TABLE OF AUTHORITIES
Page(s)
CASES:
Braun v. Dep’t of Veterans Affs.,

50 F.3d 1005 (Fed. Cir. 1995) ............................................................................ 14
* Crane v. Dep’t of Air Force,

240 F. App’x 415 (Fed. Cir. 2007) ...................................................................... 3, 9
Davis v. Dep’t of Army,

33 M.S.P.R. 223 (1987) ...................................................................................... 10
* Deines v. Dep’t of Energy,

98 M.S.P.R. 389 (2005) .................................................................................4, 8, 13
Douglas v. Veterans Admin.,

5 M.S.P.R. 280 (1981) ........................................................................................ 10
Fassett v. U.S. Postal Serv.,

85 M.S.P.R. 677 (2000) ..............................................................................2, 8, 12
* Garcia v. Dep’t of Homeland Sec.,

437 F.3d 1322 (Fed. Cir. 2006) ......................................................................... 8, 17
Kruchowski v. Weyerhaeuser Co.,

446 F.3d 1090 (10th Cir. 2006) ............................................................................ 7
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co.,
463 U.S. 29 (1983) .............................................................................................. 13
* Parker v. Dep’t of Navy,

50 M.S.P.R. 343 (1991) ...............................................................................3, 10, 12
Perry v. MSPB,
582 U.S. 420 (2017) ......................................................................................4, 5, 6
* Authorities upon which amicus curiae chiefly relies are marked with an asterisk.
ii
TABLE OF AUTHORITIES—Continued
Page(s)
Smith v. Gen. Servs. Admin.,

930 F.3d 1359 (Fed. Cir. 2019) ...................................................................... 9, 11
Soc. Sec. Admin. v. Mills,

73 M.S.P.R. 463 (1996) ...................................................................................... 10
Squires v. MSPB,
No. 4:19-CV-5-D, 2019 WL 2884242 (E.D.N.C. July 3, 2019) .......................... 6
Tallis v. Dep’t of Navy,

20 M.S.P.R. 108 (1984) ...................................................................................... 10
Thomforde v. Int’l Bus. Machs. Corp.,

406 F.3d 500 (8th Cir. 2005) ................................................................................ 7
Tucker v. Veterans Admin.,

11 M.S.P.R. 131 (1982) ...................................................................................... 11
Whittington v. MSPB,
80 F.3d 471 (Fed. Cir. 1996) .............................................................................. 11
STATUTES:
5 U.S.C. § 7702(e)(3) ................................................................................................. 5
5 U.S.C. § 7703(c) ..................................................................................................... 5
29 U.S.C. § 626(f)(1)(E) ............................................................................................ 7
29 U.S.C. § 626(f)(1)(G)............................................................................................ 7
29 U.S.C. § 626(f)(3) ................................................................................................. 7
REGULATION:
29 C.F.R. § 1614.302(b) ............................................................................................ 6
iii
INTRODUCTION
The Government’s confession of error, if only partial, is a welcome
development. After convincing the District Court to ignore Anthony Perry’s
freestanding discrimination claims, and after doubling down in response to Perry’s
motion for summary reversal in this Court, the Government now agrees with us: The
District Court erred when it declined to consider Perry’s discrimination claims de
novo.
Unfortunately, the Government reaches the correct result on this issue for the
wrong reason. The Government continues to suggest that, for mixed cases decided
on jurisdictional grounds, federal employees must separately exhaust discrimination
claims. The Government declines to press that argument with vigor in Perry’s case
because the Government found extra-record evidence showing Perry happened to
file a separate claim with an Equal Employment Opportunity office in 2012. Gov.
Br. 19 n.1. But the Government still implies that every federal employee, Perry
included, must doubly exhaust mixed cases when the Merit Systems Project Board
labels its decision “jurisdictional.” Id. at 19.
As we explained in our opening brief, that argument is wrong. See Amicus
Br. 33-37. In correcting the error below, this Court should provide clear guidance
to lower courts: There is no extra exhaustion requirement, for this or any other
1
mixed case. Whether Perry filed a separate claim with an Equal Employment
Opportunity office, or not, it does not matter.
The Court should also provide case-specific guidance to the District Court.
The waiver provision in Perry’s settlement agreement is almost certainly invalid
with respect to Perry’s age discrimination claims. See id. at 38-39. Unless the
Government can somehow overcome that invalidity, this case should proceed
forward.
Finally, before this case goes to discovery in the District Court, it should
detour to the Merits Systems Protection Board for the evidentiary hearing the Board
has not yet held. The allegations before the Board were deeply concerning: Perry
has crippling osteoarthritis. His superiors at the Census Bureau provided him
informal accommodations: Perry could walk outside during the day to manage his
severe pain, could work flexible hours, and could even work from home. See id.
at 11-12. But the day after Perry complained to the Census Bureau’s director about
discrimination, management abruptly changed the rules and threatened to fire Perry
for being absent from his desk, and for not signing a short-lived attendance log. See
id. at 12-13.
Before the Board, Perry made non-frivolous allegations showing the Census
Bureau “knew or should have known” it could not follow through with that
pretextual termination. Fassett v. U.S. Postal Serv., 85 M.S.P.R. 677, 679 (2000).
2
According to Perry, the Census Bureau provided no “notice” that “previously
condoned activity”—Perry’s flexible work schedule—was “no longer condoned.”
Crane v. Dep’t of Air Force, 240 F. App’x 415, 418 (Fed. Cir. 2007). Meanwhile,
the Census Bureau had improperly “treated” Perry “more harshly than” his peers,
who were not required to complete the attendance log. Parker v. Dep’t of Navy, 50
M.S.P.R. 343, 255 (1991). Under a long line of established precedent, these
allegations rendered Perry’s retirement-under-duress involuntary, and, if Perry could
prove his allegations, would grant the Board jurisdiction over the mixed case.
But despite Perry’s troubling allegations, the Board failed to hold the
necessary evidentiary hearing. Our opening brief cited nearly a dozen cases
outlining the governing law, explained why the Census Bureau should have known
it could not have terminated Perry in these circumstances, and explained how the
Merit Systems Protection Board erred as a matter of law by failing to apply the
appropriate legal standard and consider relevant evidence. Amicus Br. 42-49.
The Government ignores the meat of our argument and instead nitpicks the
facts, arguing that Perry’s absences were not “consistent with an informal
accommodation,” and that Perry purportedly knew his “behavior was a serious
problem.” Gov. Br. 28-29. But that was not the basis of the Board’s decision
declining to hold the jurisdictional hearing. The Government cannot invent post hoc
rationales to justify agency action. We explained that in our opening brief, too. See
3
Amicus Br. 49-50. Tellingly, the Government offers no response. And there’s a
good reason the Board did not rely on the Government’s “weigh[ing]” of the
“evidence.” Deines v. Dep’t of Energy, 98 M.S.P.R. 389, 395 (2005). In evaluating
whether an employee pleaded jurisdiction at the outset of a case—which, remember,
is all the Board was doing—the Board does not decide contested facts. Instead,
based on the employee’s pleadings, the Board holds an evidentiary hearing, only
after which does it make final factual determinations.
This case should thus head back to the Board first. If the Board finds
jurisdiction, it will decide the discrimination claims in the first instance. If the Board
concludes that it lacks jurisdiction, the matter should proceed to the District Court,
which should then oversee the discovery Perry deserves.
ARGUMENT
I. A District Court Must Consider Discrimination Claims De Novo.
The Government now agrees it led the District Court astray regarding the
scope of district court review of discrimination claims in mixed cases. The Supreme
Court established a simple rule, in this very case: Perry “need make” only “one
stop” in “the district court,” which “alone can resolve his entire complaint.” Perry
v. MSPB, 582 U.S. 420, 430 (2017) (Perry I). The relevant statutes provide clear
direction about how the District Court should resolve the discrimination component
of Perry’s mixed case: by conducting a “trial de novo” on the “discrimination”
4
claims. 5 U.S.C. § 7703(c); see id. § 7702(e)(3) (confirming “right to trial de
novo”). But the District Court did not consider Perry’s claims “de novo.” Instead,
at the Government’s urging, see JA83, the court reviewed the Board’s resolution of
the Civil Service Reform Act claim and declined to exercise jurisdiction over the
discrimination claims, see JA747-748. That was pure legal error.
To aid the Court in crafting its opinion, we highlight two pitfalls in the
Government’s carefully hedged brief.
First, the Government reaches the right result for the wrong reasons. We all
now agree Perry was entitled to de novo review on the merits of his discrimination
claims. But the why is as important as that topline conclusion. Troublingly, the
Government still appears to maintain that federal employees in mixed cases must
doubly-exhaust discrimination claims whenever the Board labels its decision
“jurisdictional.” See Gov. Br. 19 & n.1. The Government no longer presses that
argument with the same vigor here, because it uncovered new extra-record evidence
showing Perry filed some kind of claim with an Equal Employment Opportunity
office in 2012. Id. at 15, 19 n.1.
But whether Perry did (or didn’t) file a separate claim with an Equal
Employment Opportunity office in 2012 is legally irrelevant. As the Supreme Court
explained, federal employees with mixed cases need not “split their claims.” Perry
I, 582 U.S. at 429. Instead, employees present an entire mixed case to the Merit
5
Systems Protection Board. From there, the entire mixed case heads to District Court
for de novo review on the discrimination claims. Id. Nothing imposes a separate
exhaustion requirement for discrimination claims if the Board happens to label its
decision in the mixed case “jurisdictional.” See Amicus Br. 33-37. Perry’s actions
before the Equal Employment Opportunity office in 2012—which are not in the
record—are totally immaterial to this appeal.
There is pressing need for clear guidance on this issue from this Court. The
Government has consistently argued that federal employees must separately exhaust
discrimination claims. See, e.g., Squires v. MSPB, No. 4:19-CV-5-D, 2019 WL
2884242, at *7 (E.D.N.C. July 3, 2019). In its brief before this Court, the
Government stands by that argument, see Gov. Br. 19, and the regulations
contemplating double exhaustion remain on the books, see 29 C.F.R. § 1614.302(b);
see generally Amicus Br. 35. Meanwhile, federal employees typically “proceed pro
se” and are ill-equipped to rebut the Government on these finer points of procedure.
Perry I, 582 U.S. at 423 n.1. In correcting the judgment below, this Court should
put a stop to the Government’s procedural machinations and make clear there is no
double exhaustion requirement for mixed cases decided on “jurisdictional” grounds.
Second, the Government repeatedly asserts that it “ultimately expects to
prevail on Perry’s discrimination claims,” Gov. Br. 2, 21, 31, because of “the waiver
provisions in the settlement agreement,” id. at 32.
6
That is hard to fathom. The Older Workers Benefit Protection Act imposes
strict requirements on employers, including the federal government. Failure to meet
those statutory requirements invalidates a waiver of age discrimination claims. See
Amicus Br. 38-39. Here, the settlement agreement’s terms were facially deficient
because they did not permit the agreement’s revocation “for a period of at least 7
days following” its “execution.” 29 U.S.C. § 626(f)(1)(G). Additionally, the
settlement agreement is likely invalid because it appears the Census Bureau failed
to provide Perry notice “in writing to consult with an attorney prior to executing the
agreement.” Id. § 626(f)(1)(E). It is difficult to imagine the Government will
overcome these defects, which is perhaps why the Government ignores them.
Because Perry is proceeding pro se, it would be especially helpful for the
Court to outline what should happen if the Government asserts the waiver: The
Government will bear “the burden of proving” its strict compliance with the Older
Workers Benefit Protection Act. Id. § 626(f)(3). If the Government fails to meet
that burden, “the waiver is ineffective as a matter of law.” Thomforde v. Int’l Bus.
Machs. Corp., 406 F.3d 500, 503 (8th Cir. 2005) (“The statutory requirements for
waiver of [age discrimination] claims are strict and unqualified; if an employer fails
to meet any of the statutory requirements, the waiver is ineffective as a matter of
law.”); accord Kruchowski v. Weyerhaeuser Co., 446 F.3d 1090, 1095 (10th Cir.
2006) (“The absence of even one of the [Act’s] requirements invalidates a waiver.”)
7
(quotation marks and citation omitted). And if the waiver is ineffective, after more
than a decade of litigation, Perry should finally receive discovery on his age
discrimination claims.
II. The Merit Systems Protection Board Should Have Held An

Evidentiary Hearing.
A. Before this case proceeds to discovery in the District Court, however, it
should first head to the Merit Systems Protection Board. In assessing its jurisdiction
at the outset of a case, the Board acts like a district court at the motion-to-dismiss
stage. The Board looks solely to the employee’s non-frivolous allegations. The
Board “may not weigh evidence and resolve conflicting assertions of the parties, and
the agency’s evidence may not be dispositive.” Deines, 98 M.S.P.R. at 395. In this
case, Perry made non-frivolous allegations that warranted an evidentiary hearing:
The agency “knew or should have known” that its threatened termination “could not
be substantiated.” Fassett, 85 M.S.P.R. at 679 (citing Schultz v. U.S. Navy, 810 F.2d
1133, 1136 (Fed. Cir. 1987)). When an employee such as Perry retires under the
pressure of an unsustainable threat, the “facially voluntary” retirement is rendered
involuntary, and the case falls within the Board’s jurisdiction. Garcia v. Dep’t of
Homeland Sec., 437 F.3d 1322, 1324, 1328 (Fed. Cir. 2006) (en banc). But the
Board’s decision misapplied the appropriate legal standard, ignored relevant
evidence, and so failed to hold the necessary jurisdictional hearing. This Court
reviews those errors de novo, and it should send this case back to the Board.
8
The Census Bureau’s threat was unsustainable in two respects. First, based
on Perry’s allegations, the Census Bureau should have known it could not fire Perry
for being away from his desk, because Perry was following the rules as they existed
at the time. Perry’s superiors had told him to “do what” he “needed to do” to manage
his crippling disability, and authorized Perry’s flexible work schedule. JA137,
JA117. Relying on that authorization, Perry walked outside the building to manage
his pain, and worked “during the evening in the office,” “at home,” and on his “day
off as needed without pay.” JA98; see JA137. Indeed, Perry calculated that he
worked “more than 158 hours” outside of his official schedule, an amount greater
than all the time the Bureau accused him of being absent from his desk. JA330.
Separately, Perry utilized lunch breaks allowed to every other employee. JA117-
118. Those breaks alone account for a fifth of the time the Bureau accused Perry of
being absent. See Amicus Br. 44.
Copious precedent confirms a commonsense principle of basic fairness: An
agency must warn a federal employee the old rules have changed before the agency
may discipline him for violating the new rules. See Smith v. Gen. Servs. Admin., 930
F.3d 1359, 1368 (Fed. Cir. 2019) (“Until the summer of 2016, Mr. Smith had never
been corrected by his supervisors for failing to remove his PIV card and accordingly,
he believed himself to be exempt from the PIV IT policy because of his disability.”);
Crane, 240 F. App’x at 418 (“Precedent generally requires notice to an employee
9
when previously condoned activity is no longer condoned, giving the employee the
opportunity to conform to any new rules.”); Davis v. Dep’t of Army, 33 M.S.P.R.
223, 227 (1987) (“[A]ppellant’s use of government property for which he was
charged was initially authorized by his superiors. Thus, if a violation did occur, it
was a technical violation of an unenforced policy.”); Tallis v. Dep’t of Navy, 20
M.S.P.R. 108, 111 (1984) (“Appellant had never been put on notice by management
of any rules violations, nor had he ever been warned or counseled about his
conduct.”); see also Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305 (1981)
(looking to “the clarity with which the employee was on notice of any rules that
where violated in committing the offense, or had been warned about the conduct in
question”). Perry received no warning that he could no longer work flexible hours,
work from home, walk outside the building, or take lunch breaks. Perry thus had no
“opportunity to conform to any new rules.” JA118. As a result, the Census Bureau
should have known it could not substantiate the threatened termination.
Second, based on Perry’s allegations, the Census Bureau also should have
known it could not terminate Perry for failing to sign an attendance log. See JA131.
Perry explained that “no other GS-14 or GS-15 Supervisory IT Specialist was being
required to sign-in.” JA116. Only Perry. An “agency may not knowingly and
intentionally treat similarly-situated employees differently.” Parker, 50 M.S.P.R. at
354; see Soc. Sec. Admin. v. Mills, 73 M.S.P.R. 463, 473 (1996). But that is exactly
10
what the Census Bureau did. And because similarly-situated employees did not
sign-in, Perry never received adequate notice that his actions would result in severe
discipline. See Tucker v. Veterans Admin., 11 M.S.P.R. 131, 133 (1982) (holding
“the agency failed to put employees generally, and the appellant in particular, on
notice that anyone apprehended stealing government property would be removed
regardless of the value of the property or the employee’s past record” because
“disciplinary actions processed for theft during the previous year and half failed to
reflect the new policy”).
The Merit Systems Protection Board did not consider any of this when it
denied Perry a jurisdictional hearing. The Board neither analyzed the Census
Bureau’s lack of notice that the rules had changed, nor the Census Bureau’s disparate
treatment of Perry. Nor did the Board analyze the other mitigating factors, such as
Perry’s spotless disciplinary record and his lack of malintent, that made it even less
likely the Bureau could substantiate its threat to terminate him. See Amicus Br. 45.
Instead, the Board stated that Perry “admitted to his ongoing absences” and
“did not begin signing in and out” immediately when instructed. JA349-350. As
our opening brief explained, the Board applied the wrong legal standard and
therefore ignored relevant evidence, legal errors this Court reviews de novo. See
Amicus Br. 47; Smith, 930 F.3d at 1364; Whittington v. MSPB, 80 F.3d 471, 474
(Fed. Cir. 1996). To substantiate its termination, the Census Bureau needed to prove
11
two things: First, that Perry had actually been absent, or failed to sign in. Second,
that Perry’s conduct warranted termination. The Board’s decision focused
exclusively on the first question—i.e., was Perry away from his desk, and did he fail
to sign the log. The Board failed to evaluate the next question—i.e., was Perry’s
conduct a fire-able offense under the circumstances. As a result, the Board never
determined whether the Census Bureau could “substantiate[]” its threat to terminate
Perry. Fassett, 85 M.S.P.R. at 679. The Board’s error was purely legal, and requires
this matter to head back to the Board for an evidentiary hearing.
B. The Government opposes remand to the Board, but its heart isn’t in it. The
Government agrees the relevant inquiry before the Board was whether Perry
“plausibly allege[d] that the Census Bureau knew or should have known that it could
not substantiate its proposal to remove him.” Gov. Br. 27. The Government likewise
agrees the Census Bureau could not terminate Perry “on the basis of conduct that
had previously been authorized by Perry’s supervisors.” Id. Meanwhile, the
Government does not dispute that the Census Bureau could not treat Perry
“differently” from other “similarly-situated employees,” none of whom were
required to sign in. Parker, 50 M.S.P.R. at 354. Nor does the Government dispute
that the Merit Systems Protection Board’s decision failed to evaluate any of the
foregoing.
12
That should be the end of the matter. Administrative agencies receive great
deference. In exchange, agencies must consider the appropriate factors and the
relevant evidence. When an agency doesn’t, a reviewing court “may not supply a
reasoned basis for the agency’s action that the agency itself has not given.” Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983) (quotation marks and citation omitted). That’s blackletter administrative law,
and means this matter should head back to the Board. The Government doesn’t
really dispute that, either.
Because the Government cannot rebut the Board’s fundamental failures, and
the fact that this Court may not do the Board’s homework in the first instance, the
Government just ignores both issues, and apparently hopes this Court will too.
Instead, the Government invites this Court to invent a new rationale for the Board’s
decision by weighing disputed evidence. Even if the Court entertains that invitation
(to be clear, it shouldn’t), the Government’s arguments fail immediately out the gate.
First, the Board’s precedent firmly forecloses debating the facts at this stage
in the proceedings. In the decision at issue, the Board assessed its jurisdiction at the
outset of a case. In that procedural posture, the Board acts like a district court
considering a motion to dismiss. The Board does not “weigh evidence and resolve
conflicting assertions of the parties.” Deines, 98 M.S.P.R. at 395. Instead, a “non-
frivolous allegation is all that is required to trigger the Board’s jurisdiction at this
13
threshold stage.” Braun v. Dep’t of Veterans Affs., 50 F.3d 1005, 1008 (Fed. Cir.
1995). For good reason. “It would be illogical to require” an employee “to prove in
advance . . . evidence that a resignation or retirement was involuntary to secure a
hearing on that very issue.” Id.
Second, even if the Court debated the facts at this early stage, the
Government’s theory does not wash. The Government highlights the formal
disability accommodation Perry received of “one 15 minute[] break per hour.” Gov.
Br. 28 (quoting JA614). The Government argues that this formal disability
accommodation—which postdated the time period at issue—shows Perry’s prior
absences longer than 15 minutes were not “consistent with” Perry having previously
received a more generous “informal accommodation.” Id. (emphasis added).
That doesn’t compute. Whatever the details of Perry’s later formal
accommodation, Perry’s superiors could have authorized an even more flexible
schedule initially. Perry alleged that his supervisor had told him to “do what” he
“needed to do” to manage his pain, without limitation. JA137; see JA118 (“He had
told me around 2007-2008 that as long as I got the work done[,] deviations in my
work schedule were no problem.”). Meanwhile, Perry’s superiors permitted Perry
to work “evenings in the office and at home, weekends, and on [his] day off.”
JA117. That fully explains why Perry “did not come in at all” on certain “days.”
Gov. Br. 28. Perry had been authorized to work from home, and at atypical times.
14
And note: Even as the Government debates the particulars of Perry’s absences, the
Government offers no response to Perry’s allegation that employees were authorized
to take lunch breaks but the charges against him failed to take those breaks into
account. See supra p. 9. That silence is telling, and underscores that the Census
Bureau abruptly changed the rules on Perry.
The Government next speculates that Perry resisted signing the attendance log
because “Perry knew [his] absences of such duration and frequency were
unauthorized.” Gov. Br. 29. That ignores what Perry alleged: Perry was a “GS-14
Supervisory IT specialist,” but “no other GS-14 or GS-15 Supervisory IT Specialist
was being required to sign in.” JA116. It is understandable that Perry, a senior
employee with three decades of experience, demanded to know why his superiors
targeted him for disfavored treatment. Nor was it “[in]consistent” with Perry’s prior
understanding of his “authorized” flexible “work schedule” for Perry to later
conclude that management devised the short-lived attendance log as a pretext for his
termination. Gov. Br. 30; see JA116. Indeed, Perry’s allegations of retaliation are
eminently plausible: Perry was a squeaky wheel who for years had accused
management of improperly promoting younger, white employees through non-
competitive processes. See JA236-237.
15
Regardless of who is right, this is all a matter for the Board to flesh out: An
evidentiary hearing may prove Perry’s allegations. Or it may prove the
Government’s case. But that is a factual dispute that this Court should not resolve.
Third, the Government dismisses the multiple “mitigating factors that could
counsel in favor of more lenient discipline.” Gov. Br. 30. But the Board never
considered whether those factors—including Perry’s spotless record, his lack of
malintent, and other extenuating circumstances—meant the Census Bureau could
not substantiate its threat to terminate Perry. In any event, the mitigating factors
confirm the Census Bureau should have known it could not substantiate Perry’s
termination. Based on Perry’s allegations, the core problems were that: (1) the
Census Bureau failed to notify Perry that the rules had changed, prior to the
threatened termination; and (2) the Census Bureau improperly singled out Perry for
discipline. The Board erred when it failed to consider either issue.
Fourth, the Government highlights other evidence it says indicates “Perry
entered into” the settlement “voluntarily,” for instance that the agreement stated
Perry’s resignation was “voluntary,” and that Perry had purportedly “expressed his
satisfaction” “in an email” a month after signing. Id. at 25. The Board did not rely
on that evidence in declining to hold a jurisdictional hearing. See JA707-708. For
good reason. When an agency coerces an employee into retiring through a false
threat of termination, the threat itself renders the “ostensibly” “voluntary separation”
16
into a “forced removal.” Garcia, 437 F.3d at 1324, 1328 (quotation marks and
citation omitted). It thus does not matter whether Perry’s retirement was “facially
voluntary” at the time. Id. at 1324. What matters is whether the Census Bureau’s
false threat coerced Perry into an otherwise seemingly voluntary retirement.
CONCLUSION
For the foregoing reasons, and those in the opening brief, the District Court’s
judgment should be vacated and the case should be remanded for further
proceedings.
Respectfully submitted,
/s/ Nathaniel A.G. Zelinsky

NATHANIEL A.G. ZELINSKY
CATHERINE E. STETSON
HOGAN LOVELLS US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5600
[email protected]
Court-Appointed Amicus Curiae for

November 16, 2023 Appellant
17
CERTIFICATE OF COMPLIANCE
1. This document complies with the type-volume limit of Fed. R. App. P.
32 and D.C. Cir. Local R. 28 because, excluding the parts of the document exempted
by Fed. R. App. P. 32(f) and D.C. Cir. Local R. 32(e)(1), this document contains
3,902 words.
2. This document complies with the typeface requirements of Fed. R. App.
P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this
document has been prepared in a proportionally spaced typeface using Microsoft
Word for Office 365 in 14-point Times New Roman.

Nathaniel A.G. Zelinsky
CERTIFICATE OF SERVICE
I certify that on November 16, 2023, I filed the foregoing with the Clerk of
the Court for the United States Court of Appeals for the District of Columbia Circuit
by using the appellate CM/ECF system. Counsel for the government are registered
CM/ECF users and service will be accomplished by the appellate CM/ECF system.
I further certify that on November 16, 2023, I caused a true and correct copy
of the foregoing to be served upon Appellant Anthony Perry by email and by mail
at the following addresses:
Anthony W. Perry
5907 Croom Station Road
Upper Marlboro, MD 20772
[email protected]

Nathaniel A.G. Zelinsky

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USCA Case #22-5319 Document #2027359 Filed: 11/16/2023 Page 1 of 23

ORAL ARGUMENT NOT YET SCHEDULED

GINA RAIMONDO, et al.,

On Appeal from the United States District Court

REPLY BRIEF FOR COURT APPOINTED AMICUS CURIAE

NATHANIEL A.G. ZELINSKY

November 16, 2023 Court-appointed Amicus Curiae for

TABLE OF AUTHORITIES .................................................................................... ii

I. A District Court Must Consider Discrimination Claims De

II. The Merit Systems Protection Board Should Have Held An

Braun v. Dep’t of Veterans Affs.,

* Crane v. Dep’t of Air Force,

Davis v. Dep’t of Army,

* Deines v. Dep’t of Energy,

Douglas v. Veterans Admin.,

Fassett v. U.S. Postal Serv.,

* Garcia v. Dep’t of Homeland Sec.,

Kruchowski v. Weyerhaeuser Co.,

* Parker v. Dep’t of Navy,

Smith v. Gen. Servs. Admin.,

Soc. Sec. Admin. v. Mills,

Tallis v. Dep’t of Navy,

Thomforde v. Int’l Bus. Machs. Corp.,

Tucker v. Veterans Admin.,

5 U.S.C. § 7702(e)(3) ................................................................................................. 5

5 U.S.C. § 7703(c) ..................................................................................................... 5

29 U.S.C. § 626(f)(1)(E) ............................................................................................ 7

29 U.S.C. § 626(f)(3) ................................................................................................. 7

29 C.F.R. § 1614.302(b) ............................................................................................ 6

The Government’s confession of error, if only partial, is a welcome

development. After convincing the District Court to ignore Anthony Perry’s

freestanding discrimination claims, and after doubling down in response to Perry’s

District Court erred when it declined to consider Perry’s discrimination claims de

on jurisdictional grounds, federal employees must separately exhaust discrimination

because the Government found extra-record evidence showing Perry happened to

labels its decision “jurisdictional.” Id. at 19.

As we explained in our opening brief, that argument is wrong. See Amicus

Opportunity office, or not, it does not matter.

The waiver provision in Perry’s settlement agreement is almost certainly invalid

According to Perry, the Census Bureau provided no “notice” that “previously

condoned activity”—Perry’s flexible work schedule—was “no longer condoned.”

allegations rendered Perry’s retirement-under-duress involuntary, and, if Perry could

“evidence.” Deines v. Dep’t of Energy, 98 M.S.P.R. 389, 395 (2005). In evaluating

whether an employee pleaded jurisdiction at the outset of a case—which, remember,

after which does it make final factual determinations.

which should then oversee the discovery Perry deserves.

I. A District Court Must Consider Discrimination Claims De Novo.

of Perry’s mixed case: by conducting a “trial de novo” on the “discrimination”

claims. 5 U.S.C. § 7703(c); see id. § 7702(e)(3) (confirming “right to trial de

discrimination claims, see JA747-748. That was pure legal error.

Government’s carefully hedged brief.

doubly-exhaust discrimination claims whenever the Board labels its decision

office in 2012. Id. at 15, 19 n.1.

Employment Opportunity office in 2012 is legally irrelevant. As the Supreme Court

record—are totally immaterial to this appeal.

discrimination claims. See, e.g., Squires v. MSPB, No. 4:19-CV-5-D, 2019 WL

contemplating double exhaustion remain on the books, see 29 C.F.R. § 1614.302(b);

double exhaustion requirement for mixed cases decided on “jurisdictional” grounds.

Second, the Government repeatedly asserts that it “ultimately expects to