Semper v. Curtis

• Decision Date: 24 March 2014
• Docket Number: No. 13–2582.,13–2582.
• Citation: 60 V.I. 971,747 F.3d 229
• Parties: Alfredo SEMPER, Appellant v. Curtis V. GOMEZ; United States of America.
• Court: U.S. Court of Appeals — Third Circuit

747 F.3d 229

60 V.I. 971

Alfredo SEMPER, Appellant

v.Curtis V. GOMEZ; United States of America.

No. 13–2582.

United States Court of Appeals, Third Circuit.

Argued Dec. 10, 2013.

Filed March 24, 2014.

Andrew C. Simpson, Esq. (Argued), Andrew C. Simpson Law Offices, Christiansted, VI, for Appellant.

Marleigh D. Dover, Esq., Stephanie R. Marcus, Esq. (Argued), United States Department of Justice, Washington, DC, for Appellees.

Before: FISHER, COWEN and NYGAARD, Circuit Judges.

OPINION

COWEN, Circuit Judge.

Plaintiff Alfredo Semper appeals from the order of the District Court of the Virgin Islands granting the motion to dismiss filed by Defendants Curtis V. Gomez and the United States of America. We will affirm the District Court's order insofar as it dismissed Semper's official capacity claim against Chief Judge Gomez, his claim against the United States, and his claim for a writ of mandamus for lack of subject matter jurisdiction. Furthermore, we will remand this matter to the District Court with instructions to dismiss his individual capacity claim against Chief Judge Gomez for lack of subject matter jurisdiction.

I.

On July 3, 2010, Luis Roldan, a pretrial releasee under the supervision of the Probation Office of the District Court of the Virgin Islands, was found murdered. At the time, Semper was employed by the District Court as a probation officer, a position he had held since 2001. His employment was terminated on August 8, 2010, purportedly on the grounds that he was the probation officer assigned to supervise the releasee and “was ‘extremely negligent in the supervision of Mr. Roldan.’ ” (A26.) According to Semper, he was not given a hearing before his termination and, “[o]ther than the conclusory statements set forth above, plaintiff was not informed of any facts that supported his termination.” ( Id.) Semper claimed that, had he been given a hearing, he would have shown that he was not negligent in his duties because he was not the probation officer assigned to supervise Roldan. Then–Chief Judge Curtis V. Gomez allegedly made the final decision to terminate Semper's employment.

Semper filed an action pursuant to the Tucker Act against the United States in the Court of Federal Claims. Seeking reinstatement and back pay, he alleged that he was terminated without cause and without a pre-termination hearing in violation of the Due Process Clause of the Fifth Amendment and 18 U.S.C. § 3602. Section 3602(a) provides that “[a] district court of the United States shall appoint qualified persons to serve, with or without compensation, as probation officers within the jurisdiction and under the direction of the court making the appointment.” In turn, “[t]he court may, for cause, remove a probation officer appointed to serve with compensation, and may, in its discretion remove a probation officer appointed to serve without compensation.” 18 U.S.C. § 3602(a).

The government moved to dismiss Semper's action on jurisdictional grounds. According to the government, Semper was classified as a member of the so-called excepted service under the Civil Service Reform Act of 1978 (“CSRA”), and, in turn, he was not among those excepted service employees eligible under this statutory scheme for judicial or administrative review of adverse agency actions. “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.” Semper v. United States, 694 F.3d 90, 91 (Fed.Cir.2012).

Although it granted the government's motion to dismiss for lack of subject matter jurisdiction, the Court of Federal Claims actually disagreed with the government'sCSRA theory. Semper v. United States, 100 Fed.Cl. 621, 622–38 (Ct.Fed.Cl.2011). As the Federal Circuit subsequently explained, the Court of Federal Claims “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.” Semper, 694 F.3d at 92. The Court of Federal Claims nevertheless concluded that it lacked jurisdiction over Semper's action because he failed to set forth a money-mandating statute or regulation—or a “network” of such statutes and regulations—giving him the right to contest his termination in a Tucker Act proceeding. Semper, 100 Fed.Cl. at 633–38. In reaching this conclusion, it noted that the District Court of the Virgin Islands had not adopted the “Model Adverse Action Procedure for Removal of a Probation Officer” developed by the Judicial Conference of the United States. Id. at 637. Nevertheless, the District Court did adopt the “Equal Employment Opportunity and Employment Dispute Resolution Plan” (or the “Consolidated Model Plan”). Id. This remedial plan was proposed by the Third Circuit Judicial Council (and, in turn, was based on the Model Equal Employment Opportunity Plan prepared by the Judicial Conference in 1980 as well as the Judicial Conference's 1997 Model Employment Dispute Resolution Plan). According to the Court of Federal Claims, the Consolidated Model Plan does not apply to Semper's case because it only covers “equal employment opportunity and anti-discrimination rights.” Id. (citing Consolidated Model Plan). Nevertheless, the Court of Federal Claims stated that the failure of the District Court to adopt the applicable model procedures does not furnish Semper a cause of action in either the Court of Federal Claims or in any other federal court. Id. at 638. “In sum, none of the three statutes, the constitutional provision, or plaintiff's network theory on which plaintiff attempts to rely, provide jurisdiction for this court to review plaintiff's claims.” Id.

Semper appealed, but the Federal Circuit affirmed the dismissal of his action based “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.” Semper, 694 F.3d at 92. Relying in particular on the Supreme Court's ruling in United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988), the Federal Circuit determined 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,’ ” Semper, 694 F.3d at 96 (quoting Fausto, 484 U.S. at 443–44, 108 S.Ct. 668). Accordingly, the Federal Circuit expressly rejected Semper's theory that the CSRA and the holding of Fausto do not extend to employees of the Judicial Branch. Id. at 94–96. Citing to our own opinion in Mitchum v. Hurt, 73 F.3d 30 (3d Cir.1995), together with a number of other rulings, the Federal Circuit went on to explain that it expressed no opinion as to whether Semper could pursue a due process claim in a district court action:

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, 91 S.Ct. 1999, 29 L.Ed.2d 619 (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, 73 F.3d at 36]; 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, [––– U.S. ––––, 132 S.Ct. 2126, 183 L.Ed.2d 1 (2012) ] ); Schweiker v. Chilicky, [487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988) ]; Bush v. Lucas, [462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (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, 694 F.3d at 96.

Semper filed a petition for a writ of certiorari, which was denied. See Semper v. United States, ––– U.S. ––––, 133 S.Ct. 1583, 185 L.Ed.2d 578 (2013).

Semper filed the current action in the District Court, claiming that the District Court possessed federal question jurisdiction pursuant to 28 U.S.C. § 1331. Alleging that he was denied a pre-termination hearing and terminated without cause in violation of the Due Process Clause and § 3602, Semper set forth the following four counts in his amended complaint: (1) a Bivens claim against Chief Judge Gomez in his individual capacity; (2) a claim against Chief Judge Gomez in his official capacity; (3) a claim against the United States pursuant to the waiver of sovereign immunity contained in the Administrative Procedure Act (“APA”); and (4) a claim under the Mandamus Act, 28 U.S.C. § 1361, against Chief Judge Gomez. He specifically requested injunctive relief in the form of an order directing Chief Judge Gomez to reinstate him to his position as a probation officer and to correct his personnel file to reflect that he was discharged without cause as well as back pay. He also sought a declaration to the effect that his termination was without cause and violated § 3602 together with an award of reasonable attorneys fees. Chief Judge Gomez and the government moved to dismiss Count One for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and Counts Two, Three, and Four for lack of subject matter jurisdiction pursuant to Federal Rule of Civil...