Semper v. United States
694 F.3d 90
Fed. Cir.2012Background
- Semper, a probation officer for the District Court of the Virgin Islands, was terminated on Aug 6, 2010 for negligent supervision leading to a defendant's death on release pending sentencing.
- He sued in the Court of Federal Claims, naming the United States, the Chief Judge, and the Chief U.S. Probation Officer, alleging denial of due process and CSRA-based review rights.
- Government argued the CSRA excludes him from MSPB review and forecloses Court of Federal Claims review, since he is in the excepted service.
- Court of Federal Claims dismissed for lack of money-mandating statute or regulation; court reasoned CSRA cannot be invoked to bar judicial review.
- Court of Federal Claims and appellate court agreed that, as an excepted-service employee, Semper is not entitled to CSRA review and thus cannot seek judicial review in the Court of Federal Claims; Fausto governs.
- Congress later modified review rights in ways that reinforce the conclusion that Judicial Branch excepted-service employees are not entitled to CSRA-based remedies; no indication Congress intended to create alternative Court of Federal Claims review for these employees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CSRA precludes judicial review of termination for Semper. | Semper argues Fausto does not limit review to Executive Branch; CSRA should not bar Court of Federal Claims. | CSRA excludes excepted-service employees like Semper from Chapter 75 review; no right to CSRA review implies no court review. | CSRA forecloses judicial review for Semper (Fausto applied broadly to federal employees, including Judicial Branch). |
| Whether Semper, as an excepted-service employee, may rely on the Tucker Act in Court of Federal Claims. | Fausto does not distinguish branches; Semper should be reviewable in the Claims Court. | Fausto and subsequent amendments show Congress intended not to provide judicial review for such actions; Tucker Act relief is unavailable. | Tucker Act review denied; Court of Federal Claims lacks jurisdiction for this claim. |
| Whether Fausto applies to Semper despite his Judicial Branch status. | Fausto’s reasoning concerns general federal employees, not limited to Executive Branch. | Fausto explicitly addressed excepted-service employees; branch does not change its application. | Fausto controls; Semper falls within its reach. |
| Whether Title 5 definitions show Semper is within the CSRA’s excluded categories. | Definitions do not limit to Executive Branch; Semper fits excepted service. | Even with broad definitions, Semper remains an excepted-service employee not entitled to CSRA review. | Semper is an excepted-service employee not entitled to CSRA review; CSRA precludes other review. |
Key Cases Cited
- United States v. Fausto, 484 U.S. 439 (1988) (CSRA precludes review for non-preference excepted service employees)
- Dotson v. Griesa, 398 F.3d 156 (2d Cir. 2005) (Fausto interpreted to apply to federal employees generally)
- Blankenship v. McDonald, 176 F.3d 1192 (9th Cir. 1999) (CSRA review not available for certain Judicial Branch employees)
- Lee v. Hughes, 145 F.3d 1272 (11th Cir. 1998) (CSRA precludes judicial review for Judicial Branch excepted service)
- Elgin v. D.O.T., 132 S. Ct. 2126 (2012) (supreme court discussion on cross-branch application of CSRA principles)