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SCOTUS Sticks Judicial Nose in Government's Business Next Week

By Robyn Hagan Cain | Last updated on

We have less than a week until the Nine head to the bench, and the world starts to make sense again. We’re celebrating the return of relative normalcy by continuing our preview of the 2012 term.

The Supreme Court’s second day of oral arguments next week will be a federal government fun fest. The Court will consider two cases in which lawyers will argue that the federal government is out to get everyone: Kloeckner v. Solis and U.S v. Bormes.

Kloeckner is a jurisdictional dispute involving the Merit Systems Protection Board (MSPB) which affects many of the federal government's 2.17 million employees. The MSPB is authorized to hear appeals by federal employees regarding certain adverse actions, such as dismissals. If, in such an appeal, the employee asserts that the challenged action was the result of unlawful discrimination, that claim is referred to as a "mixed case."

There's a circuit split regarding how to handle mixed cases in which the MSPB's decision is silent on the discrimination arguments. Some courts have held that an employee in this situation can only appeal to the Federal Circuit. Others have held that the employee has to go to the federal district court on the discrimination issues.

Where an employee chooses to appeal has consequences. A Federal Circuit appeal means dropping the discrimination claim. Suing in the district court means waiving the opportunity to appeal the MSPB's decision on the standard dismissal grounds.

The appellate process in this narrow category of cases is a mess, and the Court will attempt to clean up that mess on Tuesday.

The second case for October 2 is U.S v. Bormes, addressing whether the Little Tucker Act waives the federal government's sovereign immunity in damages actions for Fair Credit Reporting Act (FCRA) violations.

In Bormes, a Chicago attorney paid a $350 filing fee in a federal lawsuit using his own credit card. The government's computerized "pay-gov" system sent Bormes a receipt that showed the expiration date of his credit card, SCOTUSblog reports. Expiration dates displayed in that manner aren't allowed under FCRA, so Bormes brought a class action claim against the government. The Federal Circuit Court of Appeals ruled in 2010 that Bormes' case could move forward because Little Tucker waived sovereign immunity.

The Supreme Court's decisions in both cases could dramatically impact the way the government conducts business.

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