ALFREDO SEMPER, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
2012-5003
United States Court of Appeals for the Federal Circuit
September 7, 2012
Marian Blank Horn
Appeal from the United States Court of Federal Claims in Case No. 10-CV-616
REGINALD T. BLADES, JR., Assistant Director, Civil Division, Commercial Litigation Branch, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were STUART F. DELERY, Assistant Attorney Generаl, JEANNE E. DAVIDSON, Director, and DAWN E. GOODMAN, Trial Counsel.
Before BRYSON, O‘MALLEY, and WALLACH, Circuit Judges.
BRYSON, Circuit Judge.
I
Alfredo Semper worked as a probation officer for the District Court of the Virgin Islands until he was removed from his position on August 6, 2010. The reason given for his termination was that he was negligent in the supervision of a convicted defendant who was killed while on release pending sentencing.
Mr. Semper filed a complaint in the U.S. Court of Fedеral Claims seeking review of his termination. As defendants, he named the United States as well as the Chief Judge of the District Court of the Virgin Islands and the court‘s Chief U.S. Probation Officer. In his complaint, Mr. Semper asserted that he was “denied Due Process under the U.S. Constitution” and that the defendants violated
The government argued that the Court of Federal Claims lacked jurisdiction over Mr. Semper‘s claim. The government noted that, under the Civil Service Reform Act of 1978 (“CSRA“), Mr. Semper was classified as a member of the “excepted sеrvice,” not the “competitive service,” and was not among those excepted service employees whom the statute makes eligible for judicial or administrative review of adverse agency action. Because the CSRA governs the procedural rights of members of both the competitive service and the excepted service, the government argued that Congress‘s decision to deny any right to administrative or judicial review to persons such as Mr. Semper for actions such as termination foreclosed him from obtaining review of his termination in other forums, such as the Court of Federal Claims.
We agree with the judgment of the Court of Federal Claims but affirm on the reasoning originally advanced by the government below: that because Mr. Semper is a member of the excepted service, the CSRA forecloses his right to seek review of his termination in the Court of Federal Claims.
II
The рortion of the CSRA that is codified in Chapter 75 of Title 5 of the United States Code details the procedural protections afforded to government employees who are subjected to certain adverse personnel actions.
The statute provides that those procedures are available only to “employees,” a term that excludes members of the excepted sеrvice who do not satisfy particular eligibility or tenure requirements, and it further excludes certain categories of “employees” from entitlement to the review procedures. See
Under
- an individual in the competitive service—
- who is not serving a probationary or trial period under an initial appointment; or
- who has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less;
- a preference eligible in the excepted service whо has completed 1 year of current continuous service in the same or similar positions—
- in an Executive agency; or
- in the United States Postal Service or Postal Regulatory Commission; and
- an individual in the excepted service (other than a preference eligible)—
- who is not serving a probationary or trial period under an initial appointment pending conversion to thе competitive service; or
- who has completed 2 years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to 2 years or less;
Mr. Semper was in the excepted service, not the competitive service. Therefore, he does not fall within
The answer to that question begins with the Supreme Court‘s decision in United States v. Fausto, 484 U.S. 439 (1988). In Fausto, an excepted service employee with the federal government challenged his suspension, arguing that it was unwarranted аnd that he was entitled to pay for the period of his suspension. Id. at 442. He filed a complaint in the Claims Court because the CSRA at that time did not allow excepted service personnel who were not “preference eligible” to challenge adverse personnel actions in the MSPB. The Court found that in enacting the CSRA Congress created an elabоrate new framework, which replaced the preexisting “patchwork system” with “an integrated scheme of administrative and judicial review, designed to balance the legitimate interests of the various categories of federal employees with the needs of sound and efficient administration.” Id. at 445. The new statute, the Court explained, “prescribes in great detail the protections and remedies applicable to such [adverse agency] action, including the availability of administrative and judicial review.” Id. at 443. The Court noted that no provision of the CSRA gives non-preference-eligible members of the excepted service the right to administrative or judicial review. Id. The question before the Court in Fausto, as in this case, was “whether that withholding of remedy was meant to preclude judicial review for those employees, or rather merely to leave them free to pursue the remedies that had been available before enactment of the CSRA.” Id. at 443-44.
After analyzing the statutory scheme in some detail, including the exclusion of certain employees from the review procedures, the Court in Fausto concluded that the CSRA “displays a clear congressional intent to deny the excluded employees the protections of Chapter 75—including judicial review—for personnel action covered by that chapter.” 484 U.S. at 447. In light of the “comprehensive nature of the CSRA, the attention that it gives throughout to the rights of nonpreference exceptеd service employees, and the fact that it does not include them in provisions for administrative and judicial review contained in Chapter 75,” the Court regarded the statute as reflecting “a congressional judgment that those employees should not be able to demand judicial review for the type of personnel action covered by that chаpter.” Id. at 448. The absence of any provision for those employees to obtain judicial review,
Mr. Semper argues that the reach of the CSRA, and therefore the holding of Fausto, is limited to employees of the Executive Branch. Under that view, because he was a Judicial Branch employee, his claim is not subject to the inference that Congress intended to bar persons in his position from recourse to remedies outside the CSRA, and he is therefore free to seek and obtain review from the Court of Federal Claims if he cаn satisfy that court‘s standard jurisdictional inquiry. That argument is unpersuasive for several reasons.
First, in considering the effect of the CSRA on the previous “patchwork system,” the Court in Fausto did not limit its inquiry to employees of the Executive Branch, but instead repeatedly referred simply to “federal employees.” 484 U.S. at 443 (noting that the CSRA created “an elaborate ‘new framework fоr evaluating adverse personnel actions against [federal employees]‘“, quoting Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 774 (1985)); id. at 445 (The CSRA was “designed to balance the legitimate interests of the various categories of federal employees with the needs of sound and efficient administration.“); see also Dotson v. Griesa, 398 F.3d 156, 170 (2d Cir. 2005) (Fausto construed the CSRA‘s “exclusion of excepted service employees (including judiсial branch employees)“).
Second, the definitional provisions of Title 5 make clear that the terms “civil service,” “competitive service,” and “excepted service” are not limited to employees of the Executive Branch. The term “civil service” is expressly defined, for purposes of all of Title 5, to include positions in “the exeсutive, judicial, and legislative branches” of the federal government.
Mr. Semper also argues that the government‘s contention that the CSRA forecloses actions by Judicial Branch employees in the Court of Federal Claims challenging adverse agency actions of thе type covered by the CSRA would invalidate internal administrative remedies devised by Judicial Branch agencies to deal with their employees’ employment-related complaints. But Congress‘s decision to foreclose civil service employees in the excepted service from challenging adverse employment actions in the Court of Federal Claims does not in any way suggest that Congress sought to bar the judiciary from devising administrative remedies for employees within the Judicial Branch, any more than the CSRA would bar an Executive Branch agency from implementing additional procedural protections for its employees within the agency beyond the procedural protections and review provisions created by the CSRA.
Later the same year, Congress enacted the Administrative Office of the United States Courts Personnel Act of 1990, Pub. L. No. 101-474, 104 Stat. 1097. In that Act, Congress closed a loophole in the statutory scheme that had granted CSRA review rights to certain employees of the Administrative Office of the United States Courts. See H.R. Rep. No. 101-770(I) (1990), reprinted in 1990 U.S.C.C.A.N. 1709, 1710. The statutе authorized the Administrative Office to create a personnel system that is “free from executive branch controls and more similar to that of the rest of the judicial branch” on the ground that keeping that office subject to Executive Branch oversight of its personnel activities was deemed “contrary to the doctrine of separation of powers.” Id. Again, it is reasonable to infer from Congress‘s decision to withdraw CSRA review rights from Judicial Branch employees in the Administrative Office that Congress was acting in accordance with its general purpose not to grant statutory review rights to excepted service employees of the Judicial Branch. There is certainly no indication that upon withdrawing CSRA rеview rights from those Administrative Office employees, Congress contemplated that they would suddenly gain access to the Court of Federal Claims as a forum in which to adjudicate their personnel claims. See Dotson, 398 F.3d 170-71.
Several other circuits have reached the same conclusion that we reach here: that Congress‘s withholding of CSRA review rights was not inadvertent, and that Congress did not intend for Judicial Branch employees who were not entitled to review under the CSRA to have alternative routes to judicial review for adverse agency actions such as termination. See Dotson, 398 F.3d at 169-71; Blankenship v. McDonald, 176 F.3d 1192, 1195 (9th Cir. 1999); Lee v. Hughes, 145 F.3d 1272, 1274-75 (11th Cir. 1998). Although those cases did not involve efforts to obtain judicial review from the Court of Federal Claims, the courts in each of those cases intеrpreted the CSRA, as construed in Fausto, as reflecting a congressional intention to deny judicial review of adverse agency actions for Judicial Branch employees in the excepted service and are not eligible for review under the provisions of the CSRA; the courts’ analysis in those cases is therefore consistent with the result we reach in this cаse.
III
At oral argument, the question was raised whether Mr. Semper could litigate his due process claim in a district court action, either in an action for damages under the Bivens doctrine (see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)), or by seeking reinstatement, or both. We do not address that issue other than to note that it has been presented to a number of circuits, which have expressed varying views on the issue. See Dotson v. Griesa, 398 F.3d 156, 180 (2d Cir. 2005); Mitchum v. Hurt, 73 F.3d 30, 36 (3d Cir. 1995); Saul v. United States, 928 F.2d 829, 842-43 (9th Cir. 1991); Lombardi v. Small Bus. Admin., 889 F.2d 959, 961-62 (10th Cir. 1989); Hubbard v. EPA, 809 F.2d 1, 11 n.15 (D.C. Cir. 1986); see generally Elgin v. Dep‘t of the Treasury, 132 S. Ct. 2126 (2012); Schweiker v. Chilicky, 487 U.S. 412 (1988); Bush v. Lucas, 462 U.S. 367 (1983). Mr. Semper has informed us that if he is not successful in obtaining review of his dismissal by the Court of Federal Claims, he will pursue his due process claim in a district court action.
Because we conclude that the CSRA “was meant to preclude judicial review” of adverse agency actions by employees in Mr. Semper‘s position, rather than “merely to leave them free to pursue the remedies that had been available before enactment of the CSRA,” Fausto, 484 U.S. at 443-44, we affirm the decision of the Court of Federal Claims finding that it lacked jurisdiction over Mr. Semper‘s complaint. We do not address the question whether the dispute would otherwise be within the jurisdiction of the Court of Federal Claims, an issue on which that court ruled against Mr. Semper.
AFFIRMED