Stanley v. Gonzales ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LINDA EKSTROM STANLEY, 
Plaintiff-Appellant, No. 04-17147
v.
 D.C. No.
CV-03-03032-CW
ALBERTO R. GONZALES, Attorney
General, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding
Argued and Submitted
November 14, 2006—San Francisco, California
Filed January 16, 2007
Before: A. Wallace Tashima and M. Margaret McKeown,
Circuit Judges, and David O. Carter,* District Judge.
Opinion by Judge McKeown
*The Honorable David O. Carter, United States District Judge for the
Central District of California, sitting by designation.
519
522 STANLEY v. GONZALES
COUNSEL
Howard Moore, Jr., Moore and Moore, Oakland, California,
for the appellant.
Todd M. Hughes, Assistant Director, Commercial Litigation
Branch, Civil Division, Department of Justice, Washington,
DC, for the appellee.
OPINION
McKEOWN, Circuit Judge:
United States Trustees, who are appointed by the Attorney
General, oversee the administration of bankruptcy cases and
private trustees. After the Attorney General removed Linda
Ekstrom Stanley from her position as a United States Trustee,
she challenged her removal as a violation of the separation of
powers doctrine, the Appointments Clause, and her right to
procedural due process. The district court dismissed her com-
plaint for lack of jurisdiction on the grounds that the Civil
Service Reform Act (“CSRA”) precluded the court from hear-
ing her constitutional claims for equitable relief even where
she has no other remedies under the statute. We now affirm
on slightly different grounds. We conclude that because Stan-
ley’s constitutional claims are not colorable, the district court
properly dismissed for lack of subject matter jurisdiction. To
the extent that there is a gap in our case law as to whether the
CSRA precludes equitable relief for someone in Stanley’s
position with a colorable constitutional claim, we need not
address that question nor determine how we might fill that
gap today because Stanley’s claims are without merit.
STANLEY v. GONZALES 523
BACKGROUND
In 1994, Linda Ekstrom Stanley was appointed as a United
States Trustee for the Northern and Eastern Districts of Cali-
fornia and the District of Nevada. Two years later, Attorney
General Janet Reno reclassified the United States Trustee
position as one of a “confidential, policy-determining, policy-
making, or policy-advocating character.” The Civil Service
Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (codi-
fied in scattered sections of 5 U.S.C.), exempts federal confi-
dential employees from administrative review of adverse
employment decisions. Thus, the reclassification exempted
Trustees from the protections of the Merit Systems Protection
Board (“MSPB”), the primary vehicle for resolution of dis-
putes under the CSRA. In 1999, Attorney General Reno reap-
pointed Stanley to serve a second five-year term. Attorney
General John Ashcroft removed Stanley as United States
Trustee in 2002, before her second five-year term expired. He
removed her due “to a change in Presidential administration”
and pursuant to his power under 28 U.S.C. § 581(c), which
provides that “[e]ach United States trustee is subject to
removal by the Attorney General.”
Stanley pursued administrative relief through the MSPB,
which concluded that because the Trustee position was classi-
fied as confidential and policy-making, Stanley was not an
“employee” subject to the protections of the CSRA. 5 U.S.C.
§ 7511(b)(2). On appeal, the Federal Circuit held that the con-
fidential designation was unreviewable in federal court, and
that Stanley had no legal basis to challenge her removal. Stan-
ley v. Dep’t of Justice, 423 F.3d 1271 (Fed. Cir. 2005).
Stanley also challenged her removal by bringing this action
in federal district court alleging constitutional violations and
seeking injunctive relief in the form of reinstatement. The
government moved to dismiss for lack of subject matter juris-
diction. The district court granted the motion, holding that the
CSRA deprived the court of jurisdiction to hear Stanley’s
524 STANLEY v. GONZALES
complaint. Relying on the text and structure of the CSRA as
well as case law interpreting the Act, the district court con-
cluded that the CSRA is a “comprehensive and exclusive
scheme” governing federal personnel matters. Although Stan-
ley has no other avenues for redress, the district court held
that this fact did not affect its analysis of CSRA preclusion.
We review de novo the district court’s decision to dismiss the
complaint for lack of subject matter jurisdiction. Orsay v.
Dep’t of Justice, 289 F.3d 1125, 1128 (9th Cir. 2002).
ANALYSIS
Stanley’s principal argument on appeal is that the CSRA
does not preclude judicial review of colorable constitutional
claims for equitable relief. Essentially, she argues that “where
Congress intends to preclude judicial review of constitutional
claims its intent to do so must be clear.” Webster v. Doe, 486
U.S. 592, 603 (1988). In Webster, the Supreme Court held
that a party must demonstrate a “heightened showing” that
Congress intended to eliminate judicial review when a federal
statute is construed to deny any judicial forum for a colorable
constitutional claim. Id.
[1] The CSRA, enacted in 1978, created an elaborate
framework for evaluating adverse personnel decisions against
federal employees. See United States v. Fausto, 484 U.S. 439,
443, 452 (1988) (holding that the CSRA precluded claims for
statutory relief under the Back Pay Act, 5 U.S.C. § 5596,
because Congress’s intent to preclude judicial relief was
“fairly discernable”). The Act prescribes in great detail the
protections and remedies applicable to such actions, including
the availability of administrative and judicial review. Id. at
443.
[2] Under the Act, civil service employees are divided into
three broad categories: (1) the senior executive service, (2) the
competitive service, and (3) the excepted service. See 5
U.S.C. §§ 3132, 2102, 2103. The detailed protections and
STANLEY v. GONZALES 525
remedies the CSRA affords federal civil servants do not apply
uniformly to all covered employees; rather, relief is dependent
upon an employee’s classification within the Act. See, e.g.,
Fausto, 484 U.S. at 445-46. Confidential employees like the
United States Trustees are a subset of excepted employees
and thus are not entitled to administrative review of adverse
employment decisions. See 5 U.S.C. § 7511(b)(2)(C).
Even though the CSRA does not provide the same remedies
to all employees covered by the Act, it is an “integrated
scheme of administrative and judicial review, designed to bal-
ance the legitimate interests of the various categories of fed-
eral employees with the needs of sound and efficient
administration.” Fausto, 484 U.S. at 445. Accordingly, we
have held, even after Webster, that the CSRA bars both statu-
tory claims and Bivens actions in federal courts.1 See Orsay,
289 F.3d at 1128-32 (holding that the CSRA precludes claims
under the Privacy Act and the Federal Tort Claims Act);
Blankenship, 176 F.3d at 1195 (holding that the CSRA pre-
cludes Bivens actions).
After Webster, we have not directly addressed the issue
whether the CSRA demonstrates the kind of heightened show-
ing required to preclude judicial review of colorable constitu-
tional claims where the sole remedy sought is equitable relief.2
One post-Webster case, Saul v. United States, 928 F.2d 829,
840 (9th Cir. 1991), suggests that where a plaintiff has a rem-
edy under the CSRA itself, he may not seek equitable relief
1
A “Bivens action” is a commonly used phrase for describing a judi-
cially created remedy allowing individuals to seek damages for unconsti-
tutional conduct by federal officials. This constitutional tort theory was set
out in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971). See Blankenship v. McDonald, 176 F.3d 1192, 1194
n.3 (9th Cir. 1999).
2
Before Webster, we held that where a civil service employee failed to
exhaust his administrative remedies, he could be barred from seeking
equitable relief for his constitutional claims. See Veit v. Heckler, 746 F.2d
508, 511 (9th Cir. 1984).
526 STANLEY v. GONZALES
in the federal courts. In Saul, we first squarely held that
regardless of whether a plaintiff has access to alternative rem-
edies, the CSRA precludes Bivens claims. See id. (“[T]he
CSRA precludes even those Bivens claims for which the act
prescribes no alternative remedy.”). At the same time, we
affirmed the district court’s denial of leave to amend the com-
plaint to assert a claim for injunctive relief. See id. at 843. We
noted that “the act provides its own limited form of injunctive
relief,” and held that “[t]he CSRA precludes Saul from seek-
ing injunctive relief for his asserted constitutional injury just
as it precludes him from bringing a Bivens action.” Id.
Saul does not squarely address whether the CSRA pre-
cludes colorable constitutional claims sounding in equity
where the plaintiff has no other remedy. Our sister circuits are
split on this issue.3 We defer deciding this question. Because
Stanley has not presented colorable constitutional claims,
Webster’s requirement of a heightened showing is not impli-
cated in her case.4
[3] By its own terms, Webster requires a plaintiff’s consti-
tutional claims to be colorable. See 486 U.S. at 603; see also
Briseno v. INS, 192 F.3d 1320, 1323 (9th Cir. 1999) (holding
that Webster did not apply where petitioner did not raise col-
3
Compare Dotson v. Griesa, 398 F.3d 156, 179 (2d Cir. 2005) (holding
that equitable claims are precluded by the CSRA even if the plaintiff has
no other remedy), Lombardi v. Small Bus. Admin., 889 F.2d 959, 961-62
(10th Cir. 1989) (same), and Pinar v. Dole, 747 F.2d 899, 910-12 (4th Cir.
1984) (same), with Mitchum v. Hurt, 73 F.3d 30, 35-36 (3d Cir. 1995)
(holding that regardless of plaintiff’s availability to seek administrative
remedies, the CSRA does not preclude equitable relief for constitutional
claims), and Hubbard v. EPA, 809 F.2d 1, 11 (D.C. Cir. 1986) (same).
4
We note that the government initially argued on appeal that the CSRA
precludes all constitutional claims for relief, but shifted its position during
oral argument. At argument, the government contended that the CSRA
does not preclude review of colorable equitable constitutional claims but
that affirmance is nevertheless warranted because Stanley does not raise
colorable claims.
STANLEY v. GONZALES 527
orable constitutional claims). A colorable claim is one which
is not “wholly insubstantial, immaterial, or frivolous.”
McBride Cotton & Cattle Corp. v. Veneman, 290 F.3d 973,
981 (9th Cir. 2002) (citation omitted). None of Stanley’s con-
stitutional arguments are colorable. We discuss each in detail
below.
A. SEPARATION OF POWERS CLAIM
Stanley first argues that her removal by the Attorney Gen-
eral violated the doctrine of separation of powers because the
Attorney General converted her term from a fixed period to
at-will employment. More specifically, she argues that the
Attorney General did not have the power to redesignate her
position as confidential or policy-making, in part because the
position has a special relationship to third parties. We dis-
agree.
[4] The plain language of the statute governing United
States Trustees expressly delegates the power to remove
Trustees to the Attorney General, and it does not limit the
power to remove Trustees in any specific way. See 28 U.S.C.
§ 581(c) (“Each United States trustee is subject to removal by
the Attorney General.”).5 This type of delegation does not, in
and of itself, violate the separation of powers. See, e.g., Web-
ster, 486 U.S. at 599-602 (upholding as a general principle a
similar grant of discretion to the Director of the CIA while
holding that the plaintiff could bring procedural due process,
equal protection, and privacy-based claims).
[5] The legislative history of the United States Trustees
Statute, 28 U.S.C. § 581, also supports the view that Congress
intended to confer this authority on the Attorney General.
Until 1986, § 581(c) stated that Trustees were “subject to
removal for cause by the Attorney General.” See Bankruptcy
5
We express no opinion on whether there might be other constitutional
limitations on this power, grounded, for example, in equal protection.
528 STANLEY v. GONZALES
Judges, United States Trustees, and Family Farmer Bank-
ruptcy Act of 1986, Pub. L. No. 99-554, § 111(c), 100 Stat.
3088 (1986). In 1986, the statute was amended to delete the
“for cause” language. Id.
[6] We also agree with the Federal Circuit that the decision
to classify a given position as confidential or policy-making
is not reviewable in federal court as a violation of the separa-
tion of powers doctrine. See Stanley, 423 F.3d at 1273. In
Stanley, the Federal Circuit dismissed Stanley’s appeal from
her adverse judgment in the MSPB process. The court held
that classification of her position as confidential or policy-
making was an “inherently discretionary judgment call com-
mitted to the Attorney General” and thus unreviewable. Id.
(internal citations omitted); cf. Dep’t of Navy v. Egan, 484
U.S. 518, 527 (1988) (holding that the President’s decision to
grant or deny a security clearance was similarly unreview-
able).
Stanley argues for a broad rule that officers who have a
special relationship to third parties may not be removed solely
due to a change in Presidential administration, relying primar-
ily on Humphrey’s Executor v. United States, 295 U.S. 602
(1935), and Wiener v. United States, 357 U.S. 349 (1958).
These cases do not stand for such a rule—rather, both cases
stand for the proposition that a President may not remove a
member of a quasi legislative or quasi-judicial body in the
face of either restrictions imposed by Congress, Humphrey’s
Executor, 295 U.S. at 632, or a “congressional failure of
explicitness,” Wiener, 357 U.S. at 352-53. Stanley’s case is
easily distinguished because 28 U.S.C. § 581(c) neither
imposes restrictions on the Attorney General’s ability to act
nor fails to elucidate the power it confers. Rather, it clearly
accords the power to remove United States Trustees to the
Attorney General.
By contrast, in Humphrey’s Executor, the Federal Trade
Commission Act delegated to the President the authority to
STANLEY v. GONZALES 529
remove members of the Federal Trade Commission “for inef-
ficiency, neglect of duty, or malfeasance in office.” 295 U.S.
at 622. The Court held that the intent of the act was “to limit
the executive power of removal to the causes enumerated.” Id.
at 626. No such statutory limitation exists in the case of
United States Trustees.
Similarly, in Wiener, the statute in question made no provi-
sion for removal, and the Court declined to accord the Presi-
dent plenary authority of removal in the face of congressional
silence. 357 U.S. at 356. The plaintiff in Wiener claimed that
the President could not remove him from the War Claims
Commission simply because the President preferred “men of
his own choosing” on the Commission. Id. at 356. The Court
agreed, holding that in situations where a statute is silent on
removal and the position at issue is one of “adjudicatory”
authority, the President does not have the discretion to remove
an individual at will. See id. at 356 (holding that no power of
removal can be implied when Congress has “said nothing
about it.”).
[7] The statutory schemes in these cases stand in juxtaposi-
tion to the statutory dictate here—Congress specifically
vested the authority to remove Trustees in the Attorney Gen-
eral and gave the Attorney General the power to make that
decision with or without cause. No violation of the doctrine
of separation of powers occurs when the Attorney General
acts pursuant to express authorization from Congress in
removing a United States Trustee.
B. APPOINTMENTS CLAUSE CLAIM
[8] Stanley’s second constitutional claim is similarly with-
out support. Stanley argues that the Attorney General violated
the Appointments Clause when he removed her, but her brief
provides no legal or factual discussion to support this asser-
tion. In any event, any reliance on the Appointments Clause
to challenge Stanley’s removal is misplaced. The Appoint-
530 STANLEY v. GONZALES
ments Clause provides that the President must seek the advice
and consent of the Senate to appoint principal officers. United
States Const. art. II, § 2; see also Morrison v. Olson, 487 U.S.
654, 670-71 (1988). Congress may by law vest the appoint-
ment of inferior officers in the President alone, in the courts
of law, or in the heads of departments. United States Const.
art. II, § 2.
[9] Assuming without deciding that Stanley is an “officer”
within the meaning of the Clause, the statute allowing the
Attorney General to remove her at his discretion would vio-
late the Appointments Clause only if she were a principal offi-
cer. See Morrison, 487 U.S. at 670-71 (noting that only
principal officers need be selected by the President and con-
firmed by the Senate).
[10] Stanley nowhere contends that she is a principal offi-
cer for the purposes of the Clause. Nor could she. Under Mor-
rison, we examine several factors to determine whether an
officer is a principal or an inferior officer. First, we inquire
whether the officer is subject to removal by a higher Execu-
tive Branch official. Id. at 671. Second, we look at whether
the officer is empowered to perform only certain, limited
duties. Id. Finally, we look at whether an officer’s duties are
limited in jurisdiction. Id. at 672. Generally, if an officer is
limited in “tenure, duration, [and] . . . duties,” those findings
lead to the conclusion that she is an inferior officer. Id. Stan-
ley was the United States Trustee for Region 17 of the United
States (including the Northern and Eastern Districts of Cali-
fornia and the District of Nevada), and she was initially
appointed to a five-year term. Her position was limited geo-
graphically, temporally, and topically. If she was an officer at
all, she was most certainly an inferior officer. It is well estab-
lished that Congress may vest the appointment of inferior
officers in the Department of Justice. See id. at 674 (“It is no
doubt usual and proper to vest the appointment of inferior
officers in that department of the government, executive or
STANLEY v. GONZALES 531
judicial, or in that particular executive department to which
the duties of such officers appertain.”).
C. PROCEDURAL DUE PROCESS CLAIM
Stanley finally urges that her removal violated her right to
procedural due process because she has a protected interest in
continued employment for the duration of her second five-
year term. This contention is without support.
[11] To assert a procedural due process claim under the
Fifth Amendment, Stanley must first establish a constitution-
ally protected interest. Board of Regents of State Colleges v.
Roth, 408 U.S. 564, 569-70 (1972). Stanley must have more
than a unilateral expectation of it; instead, she must have a
legitimate claim of entitlement. Id. at 577.
Stanley’s appointment to a position for a fixed term does
not in itself require that she be allowed to serve the entire
term, absent removal for cause. Inferior officers may be
removed before the end of their statutorily defined terms. Par-
sons v. United States, 167 U.S. 324, 339 (1897) (holding that
an incumbent in a term position may be removed prior to the
term’s expiration). When Congress created the office of the
United States Trustee, it was legislating in light of a “long-
standing rule in the federal courts that a fixed term merely
provides a time for the term to end.” See Stanley, 423 F.3d at
1274 (citing Pievsky v. Ridge, 98 F.3d 730, 734 (3d Cir.
1996)). Stanley had no entitlement to serve out the remainder
of her term because she could have been removed without
cause. See 28 U.S.C. § 581(c).
[12] Because Stanley had no entitlement to continued
employment, the Attorney General’s actions in removing her
did not violate her right to procedural due process under the
Fifth Amendment. See Town of Castle Rock v. Gonzales, 125
S. Ct. 2796, 2799 (2005) (holding that a benefit is not a pro-
tected entitlement if government officials may grant or deny
532 STANLEY v. GONZALES
it in their discretion); see also Roth, 408 U.S. at 575, 577
(holding that untenured professor did not have a property
interest in being rehired by state university, absent state stat-
ute or university policy indicating to the contrary).
[13] Because none of Stanley’s constitutional claims pres-
ents even colorable arguments, we affirm the district court’s
dismissal for lack of subject matter jurisdiction.
AFFIRMED.