Semper v. United States

United States Court of Appeals
for the Federal Circuit
__________________________
ALFREDO SEMPER,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2012-5003
__________________________
Appeal from the United States Court of Federal
Claims in Case No. 10-CV-616 Judge Marian Blank Horn.
__________________________
Decided: September 7, 2012
___________________________
ANDREW C. SIMPSON, Andrew C. Simpson, P.C., of
Christiansted, Virgin Island, argued for plaintiff-appellant.
REGINALD T. BLADES, JR., Assistant Director, Civil Di-
vision, Commercial Lititgation Branch, United States
Department of Justice, of Washington, DC, argued for
defendant-appellee. With him on the brief were STUART
F. DELERY, Assistant Attorney General, JEANNE E.
DAVIDSON, Director, and DAWN E. GOODMAN, Trial Coun-
sel.
__________________________
SEMPER v. US 2
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 supervi-
sion of a convicted defendant who was killed while on
release pending sentencing.
Mr. Semper filed a complaint in the U.S. Court of
Federal 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 com-
plaint, Mr. Semper asserted that he was “denied Due
Process under the U.S. Constitution” and that the defen-
dants violated 18 U.S.C. § 3602(a), which states that a
court may remove a compensated probation officer “for
cause.” Mr. Semper argued that his termination was
unjustified and that he was entitled to reinstatement and
back pay.
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 service,” not the “competitive
service,” and was not among those excepted service em-
ployees 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
3 SEMPER v. US
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.
The Court of Federal Claims dismissed Mr. Semper’s
complaint for lack of jurisdiction, but not on that ground.
The court found that because Mr. Semper was employed
in the Judicial Branch, the CSRA did not apply to him
and therefore did not have the effect of foreclosing his
access to judicial or administrative remedies. However,
the court concluded that it lacked jurisdiction over his
claim because he failed to point to any money-mandating
statute or regulation that would give him a right to con-
test his termination before that court.
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 portion 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. 5 U.S.C.
§§ 7501-7543. The statute provides those procedural
protections for only certain adverse actions, including
removal, suspension for more than 14 days, and reduction
in pay or grade. Id. § 7512. In disputes involving those
actions, the CSRA provides for administrative review by
the Merit Systems Protection Board (“MSPB”), followed
by review by this court.
SEMPER v. US 4
The statute provides that those procedures are avail-
able only to “employees,” a term that excludes members of
the excepted service who do not satisfy particular eligibil-
ity or tenure requirements, and it further excludes certain
categories of “employees” from entitlement to the review
procedures. See 5 U.S.C. § 7511(a)(1) (limiting the defini-
tion of “employee” to certain personnel); id. § 7511(b)
(excluding certain “employees” from the provided proce-
dures).
Under section 7511(a)(1), individuals are considered
employees if they fall within one of three categories:
(A) an individual in the competitive service—
(i) who is not serving a probationary or trial pe-
riod under an initial appointment; or
(ii) who has completed 1 year of current con-
tinuous service under other than a temporary ap-
pointment limited to 1 year or less;
(B) a preference eligible in the excepted service
who has completed 1 year of current continuous
service in the same or similar positions—
(i) in an Executive agency; or
(ii) in the United States Postal Service or Postal
Regulatory Commission; and
(C) an individual in the excepted service (other
than a preference eligible)—
(i) who is not serving a probationary or trial pe-
riod under an initial appointment pending conver-
sion to the competitive service; or
(ii) who has completed 2 years of current con-
tinuous service in the same or similar positions in
an Executive agency under other than a tempo-
rary appointment limited to 2 years or less;
5 SEMPER v. US
Mr. Semper was in the excepted service, not the com-
petitive service. Therefore, he does not fall within section
7511(a)(1)(A). Mr. Semper was not preference eligible. 1
Therefore, he does not fall within section 7511(a)(1)(B).
Mr. Semper was not serving a probationary or trial period
pending conversion to the competitive service. Therefore,
he does not fall within section 7511(a)(1)(C)(i). Finally,
although Mr. Semper had completed two years of current
continuous service at the time of his termination, his
service was in the Judicial Branch and not in a position in
an Executive Branch agency. Therefore, he does not fall
within section 7511(a)(1)(C)(ii). For those reasons, Mr.
Semper does not fall within the statutory definition of an
“employee” and therefore is not entitled to the adminis-
trative and judicial review procedures prescribed by the
CSRA. That raises the question whether Congress’s
decision not to afford persons in Mr. Semper’s position
any right of administrative or judicial review under the
CSRA forecloses him from obtaining judicial review of his
termination by an alternative mechanism, i.e., through an
action in the Court of Federal Claims under the Tucker
Act, 28 U.S.C. § 1491.
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 and 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
1 Preference eligible personnel include certain vet-
erans and some close relatives. 5 U.S.C. § 2108(3).
SEMPER v. US 6
the CSRA Congress created an elaborate 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 administra-
tive 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 “compre-
hensive nature of the CSRA, the attention that it gives
throughout to the rights of nonpreference excepted service
employees, and the fact that it does not include them in
provisions for administrative and judicial review con-
tained 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 chapter.” Id. at 448.
The absence of any provision for those employees to
obtain judicial review, the Court concluded, “is not an
7 SEMPER v. US
uninformative consequence of the limited scope of the
statute, but rather manifestation of a considered congres-
sional judgment that they should not have statutory
entitlement to review for adverse action of the type gov-
erned by Chapter 75.” Id. at 448-49. Accordingly, the
Court held that where the CSRA covered a specific ad-
verse action, the Claims Court was deprived of jurisdic-
tion to review those actions in cases brought by non-
preference-eligible excepted service personnel. Id. at 455.
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 can satisfy that court’s
standard jurisdictional inquiry. That argument is unper-
suasive 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 employ-
ees.” 484 U.S. at 443 (noting that the CSRA created “an
elaborate ‘new framework for evaluating adverse person-
nel 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 judicial branch employees)”).
SEMPER v. US 8
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 executive, judicial, and legislative branches” of the
federal government. 5 U.S.C. § 2101. Similarly, sections
2102 and 2103 of Title 5 define “competitive service” as
including “civil service positions not in the executive
branch which are specifically included in the competitive
service by statute,” id. § 2102, and “excepted service” as
consisting of “those civil service positions which are not in
the competitive service or the Senior Executive Service,”
id. § 2103. The explicit reference to non-Executive-
Branch positions in section 2102 makes clear that the
references to the competitive service and the executive
service in the CSRA are not limited to Executive Branch
personnel. Therefore, Mr. Semper falls within section
2103’s definition of an excepted service employee, and the
Supreme Court’s analysis in Fausto applies directly to
him without regard to the branch of government in which
he served. 2
2 Mr. Semper points out that sections 2101 through
2103 of Title 5 were not enacted as part of the CSRA, but
were part of Title 5 before the enactment of the CSRA.
While that is true, it does not advance his argument that
the CSRA has no application to employees outside of the
Executive Branch. By using terms in the CSRA that were
previously defined in Title 5, Congress adopted those
definitions as if they had been included for the first time
in the CSRA. Indeed, if definitional sections 2101
through 2103 had not been in Title 5 before the enact-
ment of the CSRA, Congress would have had to include
them to provide definitions for the terms “civil service,”
“competitive service,” and “excepted service.”
9 SEMPER v. US
Finally, amendments that Congress made to the
CSRA following the Supreme Court’s Fausto decision add
further support to the inference that Congress did not
intend to limit the preclusive effect of the CSRA to only
Executive Branch employees. In response to Fausto,
Congress enacted the Civil Service Due Process Amend-
ments, Pub. L. No. 101-376, 104 Stat. 461 (1990). That
statute extended MSPB review rights to non-preference-
eligible employees in the excepted service, but only within
strict limits. Those employees given a right of review
included “an individual in the excepted service (other
than a preference eligible) . . . who has completed 2 years
of current continuous service in the same or similar
positions in an Executive agency.” Id., codified at 5
U.S.C. § 7511(a)(1)(C)(ii). Having carefully limited the
new right of review to certain excepted service employees
in the Executive Branch, it seems unlikely that Congress
envisioned that excepted service employees who did not
qualify under the extended coverage would be entitled to
Mr. Semper also argues that the government’s conten-
tion that the CSRA forecloses actions by Judicial Branch
employees in the Court of Federal Claims challenging
adverse agency actions of the type covered by the CSRA
would invalidate internal administrative remedies de-
vised by Judicial Branch agencies to deal with their
employees’ employment-related complaints. But Con-
gress’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 implement-
ing additional procedural protections for its employees
within the agency beyond the procedural protections and
review provisions created by the CSRA.
SEMPER v. US 10
litigate their employment-related claims before the Court
of Federal Claims.
Later the same year, Congress enacted the Adminis-
trative 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 statute 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 reason-
able to infer from Congress’s decision to withdraw CSRA
review rights from Judicial Branch employees in the
Administrative Office that Congress was acting in accor-
dance 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 with-
drawing CSRA review 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 conclu-
sion that we reach here: that Congress’s withholding of
CSRA review rights was not inadvertent, and that Con-
gress 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-
11 SEMPER v. US
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 interpreted the CSRA, as
construed in Fausto, as reflecting a congressional inten-
tion 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 case.
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.
SEMPER v. US 12
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 juris-
diction of the Court of Federal Claims, an issue on which
that court ruled against Mr. Semper.
AFFIRMED