In re U.S.

Citation463 F.3d 1328
Decision Date11 September 2006
Docket NumberMisc. No. 806.
PartiesIn re UNITED STATES, Petitioner.
CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Gregory G. Katsas, Deputy Assistant Attorney General, Civil Division, United States Department of Justice, of Washington DC, argued for petitioner. With him on the brief were Peter D. Keisler, Assistant Attorney General, Sharon Swingle, and Robert M. Loeb, Attorneys, Appellate Staff.

Cletus P. Lyman, Lyman & Ash, of Philadelphia, Pennsylvania, argued for respondent.

Before SCHALL, GAJARSA, and PROST, Circuit Judges.

SCHALL, Circuit Judge.

The United States petitions for a writ of mandamus under the All Writs Act, 28 U.S.C. § 1651(a).1 In its petition, the government challenges various rulings of the United States Court of Federal Claims in the case of Scholl v. United States, 61 Fed.Cl. 322 (Fed.Cl.). All proceedings in the Court of Federal Claims have been stayed pending our consideration of the petition.

This case involves a suit, purportedly under the Tucker Act, 28 U.S.C. § 1491(a)(1), by David A. Scholl, a former bankruptcy judge of the United States District Court for the Eastern District of Pennsylvania. In his suit, Mr. Scholl alleges that the denial of his reappointment as a bankruptcy judge by the United States Court of Appeals for the Third Circuit was in violation of his right to due process under the Fifth Amendment to the Constitution and certain regulations relating to the reappointment of bankruptcy judges that have been promulgated by the Judicial Conference of the United States.

Because the Court of Federal Claims should not have exercised jurisdiction over Mr. Scholl's suit and because the requirements for the writ of mandamus are met, we grant the government's petition for a writ of mandamus and direct the court to dismiss Mr. Scholl's complaint.

BACKGROUND
I.

In each federal judicial district, the bankruptcy judges in regular active service "constitute a unit of the district court. . . known as the bankruptcy court for that district." 28 U.S.C. § 151. In each district, bankruptcy judges are appointed by a majority of the active judges of the circuit court of appeals in which the district is located. Id. § 152(a)(1). Each appointment is for a term of fourteen years. Id. Section 303 of the Federal Court's Improvement Act of 1996, Pub.L. No. 104-317, § 303, 110 Stat. 3852 (1996), codified as a note to section 152, provides that "[w]hen filling vacancies, the court of appeals may consider reappointing incumbent bankruptcy judges under procedures prescribed by regulations issued by the Judicial Conference of the United States." The Judicial Conference of the United States (the "Judicial Conference") "is the statutorily created body of federal judges that establishes policy for the administration of the Judicial Branch." Williams v. United States, 240 F.3d 1019, 1061 n. 24 (Fed.Cir.2001) (citing 28 U.S.C. § 331). The Judicial Conference is composed of the Chief Justice of the United States, "the chief judge of each judicial circuit, the chief judge of the Court of International Trade, and a district judge from each judicial circuit." 28 U.S.C. § 331. The Third Circuit generally follows the Judicial Conference regulations, although it has never formally adopted them.

In 2000, the year in which Mr. Scholl was denied reappointment, sections 5.01(b) and (c) of Chapter 5 of the Judicial Conference regulations provided:

(b) The court of appeals will decide whether or not to reappoint the incumbent judge. In making this decision, the court of appeals shall take into consideration the professional and career status of the incumbent. Reappointment should not be denied unless the incumbent has failed to perform the duties of a bankruptcy judge according to the high standards of performance regularly met by United States bankruptcy judges.

(c) If the court of appeals determines by majority vote of the active judges of that court that the incumbent bankruptcy judge appears to merit reappointment, the court shall follow the procedures set forth in following sections 5.02 and 5.03.

Section 5.02 of the regulations provided that, if the court of appeals determined that an incumbent bankruptcy judge who was willing to be reappointed appeared to merit reappointment, the circuit executive of the court would cause to be published a public notice stating that the court was considering the judge for reappointment and inviting comments from members of the bar and the public. Section 5.03 of the regulations dealt with the process by which the court of appeals would decide on the reappointment after comments from the bar and public were reviewed.2

II.

On August 27, 1986, Mr. Scholl was appointed to the Bankruptcy Court for the Eastern District of Pennsylvania by the Court of Appeals for the Third Circuit. His fourteen-year term of appointment ended on August 26, 2000. In a letter addressed to the Chief Judge of the Third Circuit, dated December 29, 1999, Mr. Scholl expressed his "willingness to accept reappointment." A preliminary vote of the active judges of the Third Circuit was held, and Mr. Scholl received enough votes to have his reappointment proceed through the public notice and comment process. The process involved notices in local newspapers seeking comments on the proposed reappointment, as well as 1,165 questionnaires sent to attorneys and bankruptcy trustees who had appeared before Mr. Scholl during his tenure as a judge. Approximately 300 of the questionnaires were returned to the court of appeals. Mr. Scholl was provided with copies of all comments and a detailed chart analyzing the responses to the questionnaires, to which he submitted a detailed response. Upon reviewing the comments, responses to the questionnaires, and Mr. Scholl's response, the active judges of the Third Circuit voted 11-to-1 against reappointment of Mr. Scholl. In a May 25, 2000 letter, Mr. Scholl was informed of the adverse vote, and was told that the process to appoint a replacement was being initiated. Mr. Scholl served as a bankruptcy judge until his term ended on August 26, 2000.

III.

After the expiration of his term, Mr. Scholl brought the present action in the Court of Federal Claims, purportedly under the Tucker Act. In Count I of his complaint, he alleges, that as a bankruptcy judge, he had a "property interest in continued employment that was taken in violation of the Due Process Clause of the Fifth Amendment to the U.S. Constitution." Compl. ¶ 19. In Count II of his complaint, he alleges that the failure to reappoint him was in violation of the Judicial Conference regulations. Id. ¶ 37. Mr. Scholl asserts that 28 U.S.C. § 153(a), the pay statute for bankruptcy judges, and the Judicial Conference regulations support Tucker Act Jurisdiction in the Court of Federal Claims.

In due course, the government moved, pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims, to have Mr. Scholl's suit dismissed for lack of jurisdiction.3 The government argued that the case should be dismissed for lack of subject matter jurisdiction under the Tucker Act because Mr. Scholl did not have a firm right to reappointment under a money mandating statute, regulation of an executive department, or Constitutional provision. The court rejected this contention in Scholl I, 54 Fed.Cl. at 643-44, 650. The court ruled that under the applicable Judicial Conference regulations, "Judge Scholl had a firm right to be reappointed as a [bankruptcy] judge, absent the showing that he had failed to perform according to high standards." The government made a renewed motion to dismiss for lack of subject matter jurisdiction, which was denied in Scholl v. United States, 61 Fed.Cl. 322 (2004) ("Scholl II").

Four months later, the government filed a "Motion to Certify Interlocutory Appeal and to Stay Further Proceedings." In its motion, the government argued that whether Mr. Scholl states a claim when he seeks back pay for not being reappointed and whether the Court of Federal Claims possesses jurisdiction to review the Third Circuit's decision not to reappoint him are controlling questions of law, and that if the decision of the trial court is reversed with respect to either issue, dismissal of the suit would result. Interlocutory Appeal Mot. at 3-4, 9-11. The government further argued that whether a "firm right" to reappointment exists is an issue of first impression upon which there are substantial grounds for a difference of opinion. Id. at 6-8. Finally, the government asserted that the trial court should grant a discretionary stay because "discovery in this case likely would involve a sensitive and potentially burdensome inquiry into the basis for the decision of the Third Circuit judges . . . ." Id. at 11-12.

The Court of Federal Claims determined that the government's motion was untimely and that, in any event, the government had failed to satisfy the requirements for an interlocutory appeal. Consequently, the court denied certification for interlocutory appeal in Scholl v. United States, 68 Fed.Cl. 58 (2005) ("Scholl III"). Mr. Scholl then moved to compel the government's answer to an interrogatory seeking the name and nature of the testimony of each witness that the government intended to call at trial. The government's response opposed Mr. Scholl's motion to compel and also presented a "Renewed Motion for Certification of an Interlocutory Appeal."

In its response, the government stated that "[i]f Mr. Scholl intends to challenge the merits of the decision not to appoint" him, "the likely witnesses would be one or more Third Circuit judges." Government's Opp'n to Mot. to Compel Disc. at 3. The government also stated that the decision whether to reappoint a bankruptcy judge "is sufficiently judicial in nature to warrant the assertion of the judicial function privilege."4 Id. at 7. The government further stated that communications between attorneys working for the Third Circuit and...

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1 books & journal articles
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