Stanley v. Gonzales

• Decision Date: 16 January 2007
• Docket Number: No. 04-17147.,04-17147.
• Citation: 476 F.3d 653
• Parties: Linda Ekstrom STANLEY, Plaintiff-Appellant, v. Alberto R. GONZALES, Attorney General, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

476 F.3d 653

Linda Ekstrom STANLEY, Plaintiff-Appellant, v. Alberto R. GONZALES, Attorney General, Defendant-Appellee.

No. 04-17147.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 14, 2006.

Filed January 16, 2007.

Howard Moore, Jr., Moore and Moore, Oakland, CA, for the appellant.

Todd M. Hughes, Assistant Director, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC, for the appellee.

Appeal from the United States District Court for the Northern District of California; Claudia Wilken, District Judge, Presiding. D.C. No. CV-03-03032-CW.

Before A. WALLACE TASHIMA and M. MARGARET McKEOWN, Circuit Judges, and DAVID O. CARTER,^* District Judge.

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 complaint for lack of jurisdiction on the grounds that the Civil Service Reform Act ("CSRA") precluded the court from hearing 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 Stanley'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.

BACKGROUND

In 1994, Linda Ekstrom Stanley was appointed as a United States Trustee for the Northern and Eastern Districts of California 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 (codified in scattered sections of 5 U.S.C.), exempts federal confidential 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 disputes under the CSRA. In 1999, Attorney General Reno reappointed 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 classified 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 confidential designation was unreviewable in federal court, and that Stanley had no legal basis to challenge her removal. Stanley 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 jurisdiction. The district court granted the motion, holding that the CSRA deprived the court of jurisdiction to hear Stanley's complaint. Relying on the text and structure of the CSRA as well as case law interpreting the Act, the district court concluded that the CSRA is a "comprehensive and exclusive scheme" governing federal personnel matters. Although Stanley 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. U.S. 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, 108 S.Ct. 2047, 100 L.Ed.2d 632 (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.

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, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988) (holding that the CSRA precluded claims for statutory relief under the Back Pay Act, 5 U.S.C. § 55965USCAS5596, 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, 108 S.Ct. 668.

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 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, 108 S.Ct. 668. 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 balance the legitimate interests of the various categories of federal employees with the needs of sound and efficient administration." Fausto, 484 U.S. at 445, 108 S.Ct. 668. Accordingly, we have held, even after Webster, that the CSRA bars both statutory 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 precludes Bivens actions).

After Webster, we have not directly addressed the issue whether the CSRA demonstrates the kind of heightened showing required to preclude judicial review of colorable constitutional 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 remedy under the CSRA itself, he may not seek equitable relief in the federal courts. In Saul, we first squarely held that regardless of whether a plaintiff has access to alternative remedies, 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 complaint 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 seeking 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 precludes 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 implicated in her case.⁴

By its own terms, Webster requires a plaintiff's constitutional claims to be colorable. See 486 U.S. at 603, 108 S.Ct. 2047; see also Briseno v. INS, 192 F.3d 1320, 1323 (9th Cir.1999) (holding that Webster did not apply where petitioner did not raise colorable 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 constitutional arguments are colorable. We discuss each in detail below.

A. SEPARATION OF POWERS CLAIM

Stanley first argues that her removal by the Attorney General 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 disagree.

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., Webster, 486 U.S. at 599-602, 108 S.Ct. 2047 (upholding as a general principle a...