Monday, June 26, 2017

SCOTUS on appeal of MSPB "mixed cases"

Okay, the subtle nuances of the procedural minefield of federal employee discrimination cases is not exactly the kind of SCOTUS blockbuster we usually anticipate at the end of the Court's term . . . but it's what we got.

When federal employees have employment discrimination claims, they may take them to the Equal Employment Opportunity Commission (EEOC). When federal employees suffer certain serious adverse employment actions (like termination) they may take them to the Merit System Protection Board (MSPB). When a federal employee complains that the serious adverse employment action was based on discrimination, (s)he may bring a "mixed case" to the MSPB.

Let's say you have a mixed case, and the MSPB dismisses the case based on jurisdictional grounds. Does the employee appeal to the Federal Circuit or to the federal district court? Or must the employee split the case, and appeal the MSPB jurisdictional ruling to the Federal Circuit and the discrimination claim to the district court?

Is anyone still awake? In Perry v. MSPB, the Supreme Court (per opinion by Justice Ginsburg) held:
[I]n mixed cases . . . in which the employee (or former employee) complains of serious adverse action prompted, in whole or in part, by the employing agency’s violation of federal antidiscrimination laws, the district court is the proper forum for judicial review.
Justice Gorsuch weighed in with his first dissent (joined by Justice Thomas). It was a - to the surprise of no one - a strict, literal, and narrow interpretation of the text of the statutory framework.

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