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.

Justice Gorsuch debut at oral arguments on employment law issue

I can sympathize with the mainstream media on this one. Their coverage of Justice Gorsuch's first oral arguments had to address a seemingly simple question: what was the case about? On average, they struggled.

As luck would have it, the case dealt with jurisdictional issues in federal employee "mixed" cases. As someone who represented a USPS employee in such a case, I can assure you that the system is setup to be an unnecessarily convoluted mess with procedural traps for the employee every step of the way. The case at SCOTUS yesterday was Perry v. MSPB (SCOTUSblog page), and SCOTUSblog identifies the issue as:

Whether a Merit Systems Protection Board decision disposing of a “mixed” case (one which challenges certain adverse employment actions and also involves a claim under the federal anti-discrimination laws) on jurisdictional grounds is subject to judicial review in district court or in the U.S. Court of Appeals for the Federal Circuit.

Ahh, clear as mud, right? In any event, here is the SCOTUS transcript, with Justice Gorsuch debuting on page 10 (spoiler alert - this exchanges goes on for a several pages, with the highlight perhaps being Justice Gorsuch apologizing for "taking up so much time"... and then asking another question).

I wouldn't read too much into his questions. I can offer two observations though: (1) He seemed to focus on statutory language (no surprise); and (2) He was pretty talkative (closer to Scalia than Thomas on the participation spectrum).