Semper v. United States

• Decision Date: 27 September 2011
• Docket Number: No. 10-616C,10-616C
• Parties: ALFREDO SEMPER, Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Claims Court

ALFREDO SEMPER, Plaintiff,

v.UNITED STATES, Defendant.

No. 10-616C

United States Court of Federal Claims

Filed: September 27, 2011

Motion to Dismiss; Lack of Subject Matter Jurisdiction; Failure to State a Claim; Civil Service Reform Act of 1978, Pub. L. No. 95-454; Money-Mandating Statute; Back Pay Act, 5 U.S.C. § 5596; 18 U.S.C. § 3602; 18 U.S.C. § 3672; Due Process Clause

Andrew C. Simpson, Andrew C. Simpson, P.C., Christiansted, VI, for the plaintiff.

Dawn E. Goodman, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for the defendant. With her were Jeanne E. Davidson, Director, Commercial Litigation Branch, and Tony West, Assistant Attorney General, Civil Division.

OPINION

HORN, J.

The plaintiff, Alfredo Semper, filed a complaint, followed by an amended complaint, in the United States Court of Federal Claims. Plaintiff claims that he was wrongfully terminated from his position as a probation officer by his employer, the United States District Court of the Virgin Islands. Plaintiff claims entitlement to back pay under the Back Pay Act, 5 U.S.C. § 5596 (2006), as well as pursuant to 18 U.S.C. § 3602 (2006) and 18 U.S.C. § 3672 (2006). Plaintiff also seeks reinstatement to his former position as a probation officer and requests unspecified monetary damages. Mr. Semper alleges that his termination violated 18 U.S.C. § 3602(a), which prohibits the discharge of a probation officer unless the termination is "for cause." In addition, Mr. Semper argues that the United States District Court of the Virgin Islands failed to afford him a hearing when he was terminated, in violation of the due process afforded him under the United States Constitution. According to the plaintiff, "[t]he District Court of the Virgin Islands does not have an administrative remedy available to employees claiming wrongful termination." Therefore, Mr. Semper asserts, the United States Court of Federal Claims has the "appropriate authority" to determine whether his constitutional and statutory rights were violated under the Tucker Act, 28 U.S.C. § 1491(a)(1) (2006), the Due Process clause of the United States Constitution, the Back Pay Act, 5 U.S.C. § 5596(a)(2), as well as 18 U.S.C. § 3602(a) and 18 U.S.C. § 3672.

Defendant has moved to dismiss the plaintiff's claims for lack of subject matter jurisdiction or, alternatively, for failure to state a claim on which relief can be granted. Arguing that this court does not have jurisdiction to review Mr. Semper's claims, the defendant also states that, even if this court has jurisdiction to entertain Mr. Semper's claims, plaintiff has not identified a money-mandating source that entitles him to relief. Nor, according to the defendant, does this court have the authority to order that plaintiff be reinstated to his former position as a probation officer.

In his amended complaint, Alfredo Semper alleges the following facts in support of his claims. Mr. Semper was employed as a probation officer in the United States District Court of the Virgin Islands from 2001-2010. He was terminated from his employment on August 6, 2010. Prior to his termination, on August 20, 2009, the Probation Office of the United States District Court of the Virgin Islands was assigned to monitor the pretrial release of Luis Roldan. Plaintiff alleges that Probation Officer Brian A. Smith was the probation officer actually assigned to supervise Mr. Roldan during his pretrial release, and that plaintiff only assisted Probation Officer Smith in supervising Mr. Roldan. According to the amended complaint, on July 3, 2010, Mr. Roldan was found dead in an abandoned housing project and the cause of death was homicide. Mr. Semper alleges that on August 6, 2010, Chief Probation Officer Denise L. Donadelle-DeCosta terminated Mr. Semper's employment with the approval of the Chief Judge of the United States District Court of the Virgin Islands. According to the amended complaint, the stated basis for Mr. Semper's termination was that he had been extremely negligent regarding the supervision of Mr. Roldan. Mr. Semper alleges that prior to his termination, he was not informed of the facts that led to his termination other than "conclusory statements," nor was he given a hearing. According to the plaintiff, had he been afforded a hearing, he could have demonstrated that he was not the probation officer assigned to supervise Mr. Roldan, and that he had not been negligent in handling the Roldan case.

DISCUSSION

"[T]he United States, as sovereign, 'is immune from suit save as it consents to be sued...and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.'" United States v. Testan, 424 U.S. 392, 399 (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)) (omission in original), reh'g denied, 425 U.S. 957 (1976); see also Inter-Coastal Xpress, Inc. v. United States, 296 F.3d 1357, 1365-66 (Fed. Cir. 2002). "'[S]ubject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived.'" Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630 (2002)); see also Ford Motor Co. v. United States, 635 F.3d 550, 556 (Fed. Cir. 2011) (quoting Arbaugh v. Y & H Corp., 546 U.S. at 514) ("[I]ssues implicating subject matter jurisdiction 'can never be forfeited or waived.'"). "[F]ederal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press." Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2011); see also Hertz Corp. v. Friend, 130 S. Ct. 1181, 1193 (2010) ("Courts have anindependent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it." (citing Arbaugh v. Y & H Corp., 546 U.S. at 514)). In fact, "[s]ubject matter jurisdiction is an inquiry that this court must raise sua sponte, even where, as here, neither party has raised this issue." Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 F.3d 1354, 1369 (Fed. Cir. 2004) (citing Textile Prods., Inc., v. Mead Corp., 134 F.3d 1481, 1485 (Fed. Cir.), reh'g and en banc suggestion denied (Fed. Cir.), cert. denied, 525 U.S. 826 (1998)), reh'g and reh'g en banc denied (Fed. Cir. 2004), cert. dismissed as improvidently granted, 548 U.S. 124 (2006); Special Devices, Inc. v. OEA, Inc., 269 F.3d 1340, 1342 (Fed. Cir. 2001) ("[A] court has a duty to inquire into its jurisdiction to hear and decide a case." (citing Johannsen v. Pay Less Drug Stores N.W., Inc., 918 F.2d 160, 161 (Fed. Cir. 1990))); View Eng'g, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962, 963 (Fed. Cir. 1997) ("[C]ourts must always look to their jurisdiction, whether the parties raise the issue or not."). "The objection that a federal court lacks subject-matter jurisdiction...may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment." Arbaugh v. Y & H Corp., 546 U.S. at 506; see also Rick's Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1346 (Fed. Cir. 2008) ("[A]ny party may challenge, or the court may raise sua sponte, subject matter jurisdiction at any time." (citing Arbaugh v. Y & H Corp., 546 U.S. at 506; Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir.), reh'g and reh'g en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1127 (2005); and Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998))); Pikulin v. United States, 97 Fed. Cl. 71, 76, appeal dismissed, 425 F. App'x 902 (Fed. Cir. 2011); Griffin v. United States, 96 Fed. Cl. 1, 4 (2010), motion to amend denied (2011).

A plaintiff need only state in the complaint "a short and plain statement of the grounds for the court's jurisdiction," and "a short and plain statement of the claim showing that the pleader is entitled to relief." Rule 8(a)(1), (2) of the Rules of the United States Court of Federal Claims (2011); Fed. R. Civ. P. 8(a)(1), (2) (2011); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57, 570 (2007)). "Determination of jurisdiction starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiff's claim, independent of any defense that may be interposed." Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir.) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1 (1983)), reh'g denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed. Cl. 203, 208 (2011); Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed. Cl. 710, 713 (2010). "Conclusory allegations of law and unwarranted inferences of fact do not suffice to support a claim." Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part, dissenting in part) (quoting C. Wright and A. Miller, Federal Practice and Procedure § 1286 (3d ed. 2004)). As stated in Ashcroft v. Iqbal, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' [Bell Atlantic Corp. v. Twombly,] 550 U.S. at 555, 127 S. Ct. 1955. Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 129 S. Ct. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. at 557).

When deciding a case based on a lack of subject matter jurisdiction, this court must assume that all undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the non-movant's favor. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. at 555-56 (citing ...