Alfredo Semper v. Curtis Gomez

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 13-2582

_______________

ALFREDO SEMPER,

Appellant

v.

CURTIS V. GOMEZ;

UNITED STATES OF AMERICA

_______________

On Appeal from the

District Court of the Virgin Islands

(D.C. Civil No. 1-12-cv-00079)

District Judge: Hon. Harvey Bartle, III

_______________

Argued December 10, 2013

BEFORE: FISHER, COWEN AND NYGAARD,

Circuit Judges

(Filed: March 24, 2014)

Andrew C. Simpson, Esq. (Argued)

Andrew C. Simpson Law Offices

2191 Church Street, Suite 5

Christiansted, VI 00820

Counsel for Appellant

Marleigh D. Dover, Esq.

United States Department of Justice

Civil Division, Room 7210

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Stephanie R. Marcus, Esq. (Argued)

United States Department of Justice

Civil Division, Room 7642

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Counsel for Appellees

_______________

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

2

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.

3

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).

4

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‘s

CSRA 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

5

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 (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). 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:

6

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, 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, [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, 694 F.3d at 96.

Semper filed a petition for a writ of certiorari, which

was denied. See Semper v. United States, 133 S. Ct. 1583

(2013).

7

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 Procedure

12(b)(1).

The District Court granted Appellees‘ motion to

dismiss. See Semper v. Gomez, Civil Action No. 12-79, 2013

WL 2451711 (D.V.I. June 4, 2013). As to Count One, the

District Court concluded that, even if a former judicial

employee‘s Bivens action for equitable relief could be

8

considered viable in certain circumstances, a chief judge

acting in his or her individual capacity lacks the authority to

reinstate a probation officer because such a step constitutes an

official governmental act. It applied the same line of

reasoning to his request for declaratory relief, i.e., ―[t]here is

no basis for declaratory relief against a person when it would

be meaningless.‖ Id. According to the District Court, it also

lacked subject matter jurisdiction to issue a writ of mandamus

under the Mandamus Act because that statute only applies to

officials in the Executive Branch.

The District Court agreed with Appellees that Counts

Two and Three must be dismissed for lack of subject matter

jurisdiction. While ―[t]he [APA], 5 U.S.C. § 702, waives the

immunity of certain government agencies and federal officials

where a party seeks relief other than money damages,‖ § 701

―excludes ‗the courts of the United States‘ from the definition

of an ‗agency.‘‖ Id. at *3-*4. According to the District

Court, it was not required to decide whether the District Court

of the Virgin islands constitutes a court of the United States

for purposes of this APA exclusion because, ―[i]f it is not, it

then clearly fits under another exclusion from the definition

of an agency—specifically the exclusion of ‗the governments

of the territories or possessions of the United States‘ of which

it is a part.‖ Id. at *4. Having found that the APA‘s limited

waiver of sovereign immunity did not apply to either the

District Court of the Virgin Islands or its Chief Judge sued in

his official capacity for injunctive or declaratory relief, ―[t]he

question remains as to whether the Chief Judge may be sued

in his official capacity for injunctive or declaratory relief,

notwithstanding the language of the APA.‖ Id. Answering

9

this question in the negative, the District Court distinguished

our ruling in Mitchum, which purportedly allowed several

current and former employees of the Veterans Administration

Medical Center (―VAMC‖) to pursue First Amendment

claims for injunctive and declaratory relief against the

administrator of the VAMC. According to the District Court,

Mitchum did not involve a Judicial Branch employee, did not

cite any cases involving such an employee or a request for

injunctive relief against a judge or some other official of the

Judicial Branch, and did not discuss the APA‘s distinction

between executive agencies and the courts of the United

States (as well as governments of the territories). ―As

Mitchum acknowledged, ‗Congress may restrict the

availability of injunctive relief,‘‖ id. at *5 (quoting Mitchum,

73 F.3d at 35), and, according to the District Court, it did so

in this case: ―The comprehensive scheme under the CSRA,

coupled with the exclusion of ‗other than money relief‘

against the District Court of the Virgin Islands under § 701 of

the APA precludes in our view the equitable and declaratory

relief plaintiff seeks here as a former judicial branch

employee.‖ Id.

The District Court also observed that ―[t]he lack of

remedy for plaintiff, a former judicial branch employee under

Bivens or under any statute must be understood in context.‖

Id. at *6. It explained that:

The judiciary has developed its own

mechanisms to deal with employment issues in

the absence of these other remedies. Since

1996 it has been the policy of the federal

10

judiciary through the Judicial Conference of the

United States ―to follow the equal employment

opportunity principles applicable to the private

sector and government employers.‖ Dotson,

398 F.3d at 172. The Virgin Islands has in

place a ―Consolidated Equal Employment

Opportunity and Employment Dispute

Resolution Plan.‖ The Plan is based on the

Model Equal Employment Opportunity Plan

adopted by the Judicial Conference of the

United States in March 1980 and also includes

elements of the Model Employment Dispute

Resolution Plan adopted in March 2010. The

Plan provides procedures for dealing with

―workplace and employment issues‖ including

not only those involving discrimination but also

―personnel practices.‖ Probation officers,

among other judicial employees, are protected.

Violations by judges as well as other court

employees are covered. If there is an allegation

against a judge, the duties under the Plan shall

be performed by the Third Circuit Judicial

Council. The Plan provides the employee with

due process rights and allows the right to

counsel. There is a prohibition against

retaliation. Although payment of attorneys‘

fees (except as authorized under the Back Pay

Act), compensatory damages, and punitive

damages are not available, an employee is

entitled to back pay under certain circumstances

and to various forms of equitable relief

11

including ―reinstatement to a position from

which previously removed.‖ The decision of

the Judicial Council will be final.

The record does not reveal whether

plaintiff has made any attempt to seek relief

under this court‘s Plan.

Id. (footnote omitted). In a footnote, the District Court

pointed out that ―[t]he probation officer in Dotson sued not

only for race discrimination, but as the plaintiff here, for

violation of due process.‖1 Id. at *6 n.6.

II.

Alleging that his due process rights were violated,

Semper filed a federal question action under 28 U.S.C. § 1331

seeking equitable and declaratory relief against Chief Judge

1

Before the parties commenced briefing

Semper‘s appeal from the District Court‘s ruling, Judge

Wilma A. Lewis was appointed the Chief Judge of the

District Court of the Virgin Islands.

12

Gomez and the United States.2 Nevertheless, we conclude

that the CSRA precludes Semper‘s constitutional claims for

equitable and declaratory relief because he was a judicial

employee who could pursue meaningful relief under a

remedial plan adopted by the District Court of the Virgin

Islands that provides for meaningful review of his claims by

judicial officers. Accordingly, the District Court lacked

subject matter jurisdiction over his claims. In addition, the

District Court did not commit reversible error by dismissing

Semper‘s mandamus claim on jurisdictional grounds.

A. Semper’s Constitutional Claims for Equitable and

Declaratory Relief

1. The CSRA and Subject Matter Jurisdiction

―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.‖ Semper, 694

2

Section 1331 provides that ―[t]he district

courts shall have original jurisdiction of all civil actions

arising under the Constitution, laws, or treaties of the United

States.‖ The District Court of the Virgin Islands, in turn,

possesses ―the jurisdiction of a District Court of the United

States.‖ 48 U.S.C. § 1612(a). This Court has appellate

jurisdiction pursuant to 28 U.S.C. § 1291. Questions of

subject matter jurisdiction raised on a motion to dismiss under

Rule 12(b)(1) are reviewed under a de novo standard. See,

e.g., Baer v. United States, 722 F.3d 168, 172 (3d Cir. 2013).

13

F.3d at 92 (citing 5 U.S.C. §§ 7501-7543). As the Federal

Circuit observed, this statutory scheme provides for

administrative review by the Merit Systems Protection Board

(―MSPB‖), followed by judicial review by the Federal Circuit

itself. Id. The CSRA further ―provides that those procedures

are available only to ‗employees,‘ a term that excludes

members of the excepted service who do not satisfy particular

eligibility or tenure requirements, and it further excludes

certain categories of ‗employees‘ from entitlement to the

review procedures.‖ Id. (citing 5 U.S.C. §§ 7511(a)(1),

7511(b)). ―Mr. Semper was in the excepted service, not the

competitive service,‖ was not preference eligible, was not

serving a probationary or trial period pending conversion to

the competitive service, and, although he had competed two

years of continuous service, ―his service was in the Judicial

Branch and not in a position in an Executive Branch agency.‖

Id. at 92-93. Accordingly, ―Mr. Semper does not fall within

the statutory definition of an ‗employee‘ and therefore is not

entitled to the administrative and judicial review procedures

prescribed by the CSRA.‖ Id. at 93.

Semper sought to bypass the CSRA by bringing suit in

the Court of Federal Claims under the Tucker Act. In United

States v. Fausto, 484 U.S. 439 (1988), a non-preference

eligible excepted service member in the Executive Branch

employed a similar strategy, filing suit in the Claims Court

because he was precluded from seeking administrative review

under the CSRA. Fausto, an excepted service employee of

the Fish and Wildlife Service (who, at that time, did not have

a right to administrative or judicial review under the CSRA),

filed a Claims Court action under the Back Pay and Tucker

14

Acts challenging his 30-day suspension for unauthorized use

of a government vehicle. Fausto, 484 U.S. at 440-43.

According to the Supreme Court, ―[t]he comprehensive

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 contained in Chapter 75,

combine to establish 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. As the Supreme Court subsequently explained in Elgin

v. Department of the Treasury, 132 S. Ct. 2126 (2012), the

Fausto Court ―found it ‗fairly discernible‘ that Congress

intended to preclude all judicial review of Fausto‘s statutory

claims,‖ id. at 2133 (footnote omitted) (quoting Fausto, 484

U.S. at 452). ―Just as the CSRA‘s ‗elaborate‘ framework,

[Fausto, 484 U.S. at 443], demonstrates Congress‘s intent to

entirely foreclose judicial review to employees to whom the

CSRA denies statutory review, it similarly indicates that

extrastatutory review is not available to those employees to

whom the CSRA grants administrative and judicial review.‖

Id. Applying Fausto to the Judicial Branch, the Federal

Circuit determined that ―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.‖ Semper,

694 F.3d at 93.

15

Even before its decision in Fausto, the Supreme Court

refused to allow a NASA employee who had allegedly been

suspended for whistle-blowing (and who had a right to review

under pre-CSRA law and actually had obtained reinstatement

with back pay through this process) to pursue a Bivens action

for damages against his supervisor for retaliation in violation

of the First Amendment. Bush, 462 U.S. at 368-90. In Bush

v. Lucas, 462 U.S. 367 (1983), the Court observed that a

proposed Bivens action could be defeated where there are

―‗special factors counseling hesitation in the absence of

affirmative action by Congress,‘‖ id. at 377 (quoting Carlson

v. Green, 446 U.S. 14, 18-19 (1980)). ―Because [Bush‘s]

claims arise out of an employment relationship that is

governed by comprehensive procedural and substantive

provisions giving meaningful remedies against the United

States, we conclude that it would be inappropriate for us to

supplement the regulatory scheme with a new judicial

remedy.‖ Id. at 368. The Bush Court reached this conclusion

even though the civil service remedies were not as effective

as a judicial award of damages would be and did not fully

compensate the employee for the harm he suffered, e.g., his

attorney‘s fees were not paid by the government. See, e.g.,

id. at 372 & n.9; see also, e.g., Schweiker, 487 U.S. at 414-29

(refusing to recognize non-statutory damages claim for

unconstitutional denial Social Security disability benefits).

At this time, it is undisputed that the CSRA precludes

current or former federal employees from bringing a Bivens

damages action for alleged constitutional violations arising

out of the employment context. In fact, the Second, Ninth

and Eleventh Circuits have concluded that current or former

16

employees of the Judicial Branch—who otherwise have no

right to administrative or judicial review under the CSRA

itself—could not bring damages claims pursuant to the

Bivens doctrine. Dotson, 398 F.3d at 159-83; Blankenship v.

McDonald, 176 F.3d 1192, 1194-96 (9th Cir. 1999); Lee v.

Hughes, 145 F.3d 1272, 1273-77 (11th Cir. 1998). As we

explained in Sarullo v. USPS, 352 F.3d 789, 795 (3d Cir.

2003) (per curiam), ―[w]e held [in Mitchum] that the CSRA

affords the exclusive remedy for damage claims of federal

employees seeking redress for alleged constitutional

violations arising out of the employment relationship,‖ id. at

795. We then determined in Sarullo that ―the District Court

lacked subject matter jurisdiction to hear Sarullo‘s Bivens

claim [of malicious prosecution following an investigation

into whether he was selling drugs to other postal employees

inside the post office] as such a claim was barred by the

comprehensive statutory scheme provided in the CSRA, and

should have dismissed the Bivens claim for lack of subject

matter jurisdiction.‖ Id. at 797.

2. Mitchum and Elgin

Based on these legal principles, this Court now must

decide the question that the Federal Circuit itself refused to

resolve, i.e., whether or not Semper ―could litigate a due

process claim‖ for equitable and declaratory relief ―in a

district court action‖ filed pursuant to § 1331. Semper, 694

F.3d at 96. In addressing this rather complex question, we

begin with our opinion in Mitchum.

17

In Mitchum, three current or former employees of the

Pittsburgh VAMC filed a § 1331 action ―against VAMC

administrators [for equitable and declaratory relief], claiming

among other things, that the administrators had violated the

employees‘ First Amendment rights by retaliating against

them for making statements intended to secure improvements

for VAMC patients.‖ Mitchum, 73 F.3d at 31. The district

court granted summary judgment in favor of the defendants

on the basis that ―the plaintiffs could not assert such claims in

federal court but were instead required to pursue available

administrative remedies.‖ Id. ―Because Bush and the other

Supreme Court decisions on which the defendants rely

concern the recognition of non-statutory damages remedies

rather than injunctive and declaratory relief,‖ this Court (in an

opinion by then-Judge Alito) reversed. Id.

We noted that ―all three appellants could have pursued

administrative remedies to vindicate the alleged violations of

their First Amendment rights.‖3 Id. Based on our discussion

3

Specifically, one plaintiff (Krumholz, the Staff

Assistant to the Associate Director) enjoyed the protections of

the CSRA itself, which allowed him to file an allegation of a

prohibited personnel practice with the MSPB‘s Office of

Special Counsel (―OSC‖) and to obtain review by the MSPB.

Id. at 31-32. ―A final order or decision is subject to judicial

review in the United States Court of Appeals for the Federal

Circuit.‖ Id. at 32 (citing 5 U.S.C. §§ 1221(h), 7703(b)).

Krumholz initially filed an administrative complaint under

this CSRA process, but it was dismissed because he had

already commenced his action in the district court. Id. at 32

18

of Fausto, Schweiker, and especially Bush, we admitted that

―a good argument can be made that a federal employee who

has meaningful administrative remedies and a right to judicial

review under the CSRA or another comparable statutory

scheme should not be permitted to bypass that scheme by

bringing an action under 28 U.S.C. § 1331 and seeking

injunctive or declaratory relief.‖ Id. at 34. ―Several courts of

appeals have so held, and these have much to recommend

them. See, e.g, [Saul, 928 F.2d at 843]; Stephens v. Dep‘t of

Health and Human Services, 901 F.2d 1571, 1575-77 (11th

Cir. 1990); [Lombardi, 889 F.2d at 926].‖ Mitchum, 73 F.3d

n.2. The other two plaintiffs (Mitchum, the former Chief of

Medical Services, and Webb, Assistant Chief Nurse for

Special Projects) were subject to a different statutory scheme

(and neither the parties nor this Court expressed any opinion

as to whether their grievances could have been presented to

an appeals board and then to the Federal Circuit under this

scheme or whether their claims had to be pursued through

internal administrative channels or pursuant to a collective

bargaining agreement). Id. at 32 & n.3. The Mitchum

plaintiffs sought various kinds of injunctive and declaratory

relief from the district court, ―including an order directing the

defendants to cease and desist from retaliation, harassment,

and reprisal; an order directing the removal of certain

documents from the plaintiffs‘ files; and an order directing

the appointment of a permanent community-based board of

overseers to monitor the operations of the facility.‖ Id. at 33.

―Webb and Krumholz also sought reinstatement to their prior

positions.‖ Id.

19

at 34 (footnote omitted). In two other instances, the

respective circuit courts either reserved judgment or found

that a party could not obtain injunctive relief for minor

personnel actions. Id. at 34 n.5 (citing Bryant v. Cheney, 924

F.2d 525, 528 (4th Cir. 1991); Pinar v. Dole, 747 F.2d 899

(4th Cir. 1984)).

However, the D.C. Circuit reached the opposite

conclusion in a case filed by an unsuccessful job applicant

who claimed he had been rejected due to his First

Amendment activities. Id. at 34. The original panel in

Hubbard v. EPA, 809 F.2d 1 (D.C Cir. 1986), ―held that Bush

defeated the applicant‘s Bivens claim for damages but

permitted him to seek the equitable remedy of

reinstatement.‘‖ Mitchum, 73 F.3d at 35 (quoting Hubbard,

809 F.2d at 11). The full D.C. Circuit reaffirmed the panel‘s

decision on the damages claim and (while it did not rehear the

reinstatement claim) indicated that equitable relief was

appropriate. Id. (discussing Spagnola v. Mathis, 859 F.2d

223 (D.C. Cir. 1988) (en banc) (per curiam)).

Although with some reluctance, we followed the D.C.

Circuit‘s approach:

On balance, we think that the District of

Columbia Circuit has taken the better course.

The power of the federal courts to grant

equitable relief for constitutional violations has

long been established. See, e.g., Osborn v.

United States Bank, 9 Wheat. 738, 838-46, 859,

6 L. Ed. 204 (1824); Ex parte Young, [209 U.S.

20

123, 156 (1908)]. Thus, as the District of

Columbia Circuit observed, there is a

―‗presumed availability of federal equitable

relief against threatened invasions of

constitutional interests.‘‖ Hubbard, 809 F.2d at

11 (quoting [Bivens, 403 U.S. at 404] (Harlan,

J., concurring in the judgment)). It is

reasonable to assume that Congress legislates

with the understanding that this form of judicial

relief is generally available to protect

constitutional rights. While Congress may

restrict the availability of injunctive relief (see,

e.g., 28 U.S.C. §§ 1341, 2283; 26 U.S.C. §

7421(a)), we believe that we should be very

hesitant before concluding that Congress has

impliedly imposed such a restriction on the

authority to award injunctive relief to vindicate

constitutional rights.

Id. We acknowledged that the Bush Court found that the

history and structure of the CSRA was sufficiently clear to

preclude the creation of a new Bivens claim. Id. ―But the

Supreme Court has developed a special jurisprudence for

Bivens claims, and we are hesitant to extend this

jurisprudence into other spheres.‖ Id. In other words, ―it

does not necessarily follow that the long-recognized

availability of injunctive relief should be restricted‖ merely

―because ‗special factors counseling hesitation‘ militate

against the creation of a new non-statutory damages remedy.‖

Id. While ―[w]e assume that the power of the federal courts

to award legal and equitable relief in actions under 28 U.S.C.

21

§ 1331 stems from the same source, see Bush, [462 U.S. at

374],‖ this ―does not mean that the factors that counsel

against one type of relief are equally applicable with respect

to the other.‖ Mitchum, 73 F.2d at 35-36 (citing Bivens, 403

U.S. at 405-06 (Harlan, J., concurring in the judgment);

Dellinger, Of Rights and Remedies: The Constitution as A

Sword, 85 Harv. L. Rev. 1532, 1543 (1972)).

Accordingly, we recognized the Supreme Court‘s

reluctance to create non-statutory damages remedies for

federal employees subject to adverse employment actions, a

reluctance manifested in Bush, Fausto, and Schweiker. But

we observed an important distinction: whereas Bivens claims

were a ―‗recent judicial creation‘‖ easily preempted by

Congress, ―[t]he power of the federal courts to grant equitable

relief for constitutional violations‖ had much deeper roots.

Id. at 35 (quoting Hubbard, 809 F.2d at 11 n.15). Because of

the ―‗―presumed availability‖‘‖ of equitable relief—a

presumption of which we assumed Congress to be aware—we

declined to interpret the CSRA to impliedly curtail our

authority to grant such relief. Id. (quoting Hubbard, 809 F.2d

at 11). To hold otherwise would be ―a big and important

jump‖ that we were hesitant to make ―[w]ithout more specific

guidance from the Supreme Court.‖ Id. at 36. Although not

directly on point because it involved executive rather than

judicial employees, Mitchum stands for the broader

proposition that we should be leery to restrict a federal court‘s

ability to grant equitable relief in order to vindicate a

constitutional right.

22

Semper unsurprisingly relies on our Mitchum opinion,

and, at least when viewed in isolation, it does seem to weigh

in his favor. After all, we allowed the plaintiffs‘

constitutional claims for equitable and declaratory relief to go

forward even though they ―could have pursued administrative

remedies to vindicate the alleged violations of their First

Amendment rights.‖ Id. at 31. We likewise rejected the

theory—adopted by several other circuit courts—that ―a

federal employee who has meaningful administrative

remedies and a right to judicial review under the CSRA or

another comparable statutory scheme should not be permitted

to bypass that scheme by bringing an action under 28 U.S.C.

§ 1331 and seeking injunctive or declaratory relief.‖ Id. at

34.

Nevertheless, both the District Court and Appellees

point out that the Mitchum opinion did not involve an

employee of the Judicial Branch. At the very least, it is

atypical for a court to hear a § 1331 action filed by one of its

own employees asking the court to enter an injunction against

its own chief judge requiring him or her to reinstate this

former employee because the termination violated the

Constitution. In contrast, there is a long-standing tradition of

federal courts granting equitable relief against federal

executive officials to vindicate the constitutional rights of the

plaintiffs. Following the example set by the D.C. Circuit, we

discussed this extensive history of the judiciary enjoining

unconstitutional executive actions in Mitchum. See, e.g., id.

at 35.

23

Likewise, Congress has indicated on a number of

occasions that employment disputes within the Judicial

Branch implicate a special set of circumstances, including the

doctrine of separation of powers and the protection of an

independent judiciary. As the Federal Circuit noted,

Congress responded to Fausto by amending the CSRA to

extend review rights to certain excepted service employees in

the Executive Branch—but not the Judicial Branch. Semper,

694 F.3d at 95. It also enacted the Administrative Office of

the United States Courts Personnel Act of 1990 so as to close

―a loophole in the statutory scheme‖ that had granted CSRA

review rights to certain employees of the Administrative

Office. Id. (citation omitted); see also Dotson, 398 F.3d at

171. Congress allowed the Administrative Office to create a

personnel system ―‗free from executive branch controls and

more similar to that of the rest of the judicial branch‘‖

because ―‗Executive Branch oversight of its personnel

activities was deemed ‗contrary to the doctrine of separation

of powers.‘‖ Semper, 694 F.3d at 95 (quoting H.R. Rep. No.

101-770(I) (1990), reprinted in 1990 U.S.C.C.A.N. 1709,

1710). Furthermore, Congress ultimately decided not to

include judicial employees under the Congressional

Accountability Act of 1995 (which extended the protections

of various labor laws to legislative employees and created a

process by such employees could obtain relief from

Congress‘s Office of Compliance and then the judiciary) due

to concerns about judicial independence. See Dotson, 398

F.3d at 173-75 (footnote omitted). Ordered to make a report

to Congress, the Judicial Conference emphasized the

importance of an internal governance system to maintaining

an independent Judicial Branch. Id. at 175. Evidently

24

satisfied by the judiciary‘s history of handling personnel

complaints through its own administrative review procedures

and its proposal to revise the Judicial Conference‘s model

equal employment opportunity plan, Congress took no further

action. Id. at 174. Finally, the District Court noted that the

APA, although it expressly allows for injured persons to bring

non-damage claims with respect to the misconduct of federal

agencies and their officers, excludes ―the courts of the United

States‖ (as well as the territorial governments) from its

definition of an ―agency.‖ See 5 U.S.C. §§ 701-702.

Admittedly, these various considerations by

themselves may not be sufficient to distinguish Mitchum.

After all, courts and judges—like executive agencies and their

officials—are bound by the Constitution. In fact, given their

critical role in interpreting the Constitution and vindicating

constitutional rights, they should be held to the highest

standards. In Dotson v. Griesa, 398 F.3d 156 (2d Cir. 2005),

the Second Circuit ultimately concluded that a former

probation officer—who alleged unconstitutional race

discrimination as well as the denial of due process in

connection with his termination—could not pursue a district

court action for either damages or for equitable relief, id. at

159-83. But it did so with some reluctance, specifically

stating that it was ―mindful that it may appear, at first glance,

to exempt the judiciary from any judicial review of its own

employment actions, even with respect to charges of

discrimination.‖ Id. at 160. Nevertheless, there is more to the

current appeal than our prior ruling in Mitchum or the various

circumstances implicated by judicial employment disputes.

25

In its 2012 decision in Elgin, the Supreme Court

addressed whether former federal employees fired because

they failed to register with the Selective Service (and who

were competitive service employees with the rights under the

CSRA to a hearing before the MPSB as well to file a petition

for review with the Federal Circuit) could pursue equitable

claims challenging the facial unconstitutionality of Selective

Service legislation. Elgin, 132 S. Ct. at 2130-40. One of the

plaintiffs (Elgin) appealed his removal to the MSPB, but the

ALJ dismissed this appeal on the grounds that an employee is

not entitled to MSPB review of agency action based on an

absolute statutory bar to employment and that the MSPB

otherwise lacks the jurisdiction to rule on the constitutionality

of a federal statute. Id. at 2131.

According to the plaintiffs, the general grant of federal

question jurisdiction under § 1331, which gives district courts

jurisdiction over constitutional claims, remains undisturbed

unless Congress explicitly states otherwise. Id. at 2132.

They specifically ―rely on Webster v. Doe, [486 U.S. 592

(1977)], which held that ‗where Congress intends to preclude

judicial review of constitutional claims [,] its intent to do so

must be clear.‘‖ Elgin, 132 S. Ct. at 2132 (quoting Webster,

486 U.S. at 603). This ―‗heightened showing‘ was required to

‗avoid the ―serious constitutional question‖ that would arise if

a federal statute were construed to deny any judicial forum

for a colorable constitutional claim.‘‖ Id. (quoting Webster,

486 U.S. at 603). The Elgin Court explained that, ―[a]lthough

Fausto interpreted the CSRA to entirely foreclose judicial

review, the Court had no need to apply a heightened standard

26

like that applied in [Webster] because Fausto did not press

any constitutional claims.‖ Id. at 2133 n.4.

Although constitutional claims were alleged by the

Elgin plaintiffs, the Supreme Court refused to apply the

heightened Webster standard because ―the CSRA does not

foreclose all judicial review of petitioners‘ constitutional

claims, but merely directs that judicial review shall occur in

the Federal Circuit,‖ which ―is fully capable of providing

meaningful review of petitioners‘ claims.‖ Id. at 2132

(citation omitted). The Supreme Court accordingly held that

―the CSRA provides the exclusive avenue to judicial review

when a qualifying employee challenges an adverse

employment action by arguing that a federal statute is

unconstitutional.‖ Id. at 2130; see also, e.g., id. at 2140 (―For

the foregoing reasons, we conclude that it is fairly discernible

that the CSRA review scheme was intended to preclude

district court jurisdiction over petitioner‘s claims.‖). It was

uncontested that the MSPB routinely adjudicates a variety of

constitutional claims (including claims that an adverse agency

action violated an employee‘s First or Fourth Amendment

rights), and the Elgin plaintiffs admitted that such claims

must be brought under the CSRA process. See, e.g., id. at

2134. In turn, the CSRA scheme allowed for meaningful

review of facial constitutional challenges because the

plaintiffs ―are covered employees challenging a covered

employment action,‖ the Federal Circuit has the ―authority to

consider and decide petitioners‘ constitutional claims,‖ and,

insofar as such challenges may require factual development,

―the CSRA equips the MSPB with tools to create the

necessary record.‖ Id. at 2139.

27

The Supreme Court‘s decision in Elgin provides the

―more specific guidance‖ we sought in Mitchum. The Elgin

Court held that the ―‗elaborate‘ framework‖ of the CSRA was

exclusive, ―demonstrat[ing] Congress‘ intent to entirely

foreclose judicial review to employees to whom the CSRA

denies statutory review . . . [as well as] those employees to

whom the CSRA grants administrative and judicial review.‖

Id. at 2133 (quoting Fausto, 484 U.S. at 443). In light of the

CSRA‘s purpose to create an ―‗integrated scheme of

administrative and judicial review,‘‖ and bring uniformity in

decision-making to federal employment disputes, it followed

that ―the statutory review scheme is exclusive, even for

employees who bring constitutional challenges to federal

statutes.‖ Id. at 2135 (quoting Fausto, 484 U.S. at 444-45).

Thus, in concluding that the CSRA precluded district court

jurisdiction over the petitioners‘ constitutional claims for

equitable relief, Elgin effectively overruled Mitchum insofar

as that decision had allowed plaintiffs who ―could have

pursued administrative remedies to vindicate the alleged

violations of their First Amendment rights‖ to seek equitable

relief in district court. Mitchum, 73 F.3d at 31; see also id. at

34 (hesitantly rejecting argument adopted by other circuits

that ―a federal employee who has meaningful administrative

remedies and a right to judicial review under the CSRA or

another comparable statutory scheme should not be permitted

to bypass that scheme by bringing an action under 28 U.S.C.

§ 1331 and seeking injunctive or declaratory relief‖).

We now conclude that the CSRA precludes a federal

employee from litigating constitutional claims for equitable

and declaratory relief in a § 1331 action where the employee

28

could pursue meaningful relief under a remedial plan that

provides for meaningful review of his or her claims by

judicial officers. However, a federal employee who could not

pursue meaningful relief through a remedial plan that

includes some measure of meaningful judicial review has the

right to seek equitable and declaratory relief for alleged

constitutional violations in a ―federal question‖ action filed

pursuant to § 1331.

We believe that this approach honors both our ruling in

Mitchum as well as the Supreme Court‘s decisions in Elgin

(as well as Fausto, Bush, and Webster). We further observe

that our ruling today permits an employee to obtain

meaningful redress for violations of his or her own

constitutional rights through a process involving meaningful

review by judicial officers while—at the same time—taking

into account the special set of circumstances arising out of

employment disputes between the judiciary and its own

employees. As we have already indicated, the Second Circuit

determined that the CSRA precluded a former probation

officer‘s constitutional claims for equitable relief. Dotson,

398 F.3d at 159-61, 179-83. In reaching this determination,

the circuit court emphasized the existence of the federal

judiciary‘s extensive equal opportunity and employment

dispute system. Id. at 159-83. According to the Dotson

court, the Judicial Branch has long provided its personnel

with the opportunity to challenge adverse employment

decisions and obtain various forms of relief, including

reinstatement. See, e.g., id. at 181. In fact, ―the judiciary has

itself provided for its employees what can only be afforded

private employees or employees of other branches of

29

government through legislation: a measure of judicial review

for claims of employment discrimination.‖ Id. at 161; see

also id. at 176 n.14 (―Indeed the judiciary is unique among

the branches of government in being able to provide for itself

some review of its administrative employment decisions by a

judicial officer. For other branches of government, judicial

review of administrative employment decisions requires

legislation.‖). Congress, especially in conjunction with the

1995 enactment of the CAA extending labor protections to

Legislative Branch employees, has monitored and engaged in

a dialogue with the judiciary to assess whether legislation was

necessary to protect the rights of Judicial Branch employees.

Id. at 173-76, 181-82. ―In this context, Congress‘s decision

not to act endorses the conclusion that it considered the

judicial review available to judicial branch employees

through the judiciary‘s own review plans adequate and

intended no supplemental judicial review either at law or in

equity.‖ Id. at 181. Given such circumstances, we agree with

the Second Circuit that it would be unnecessary and even

inappropriate to allow a judicial employee to file a lawsuit

against a judicial officer where the judiciary has already

provided a means for this person to obtain meaningful relief

together with a measure of judicial review.4 See, e.g., id. at

181.

4

We note that the Ninth Circuit followed our

example in Mitchum to conclude that the statutory scheme

governing TSA security screeners did not preclude a district

court action for equitable relief filed by a union and a former

screener who alleged that the TSA violated the First

Amendment by disciplining and discharging the screener for

30

3. The District Court’s Consolidated Model

Plan

Accordingly, we now must decide whether Semper

himself could pursue meaningful relief under a remedial plan

that provides for meaningful review by judicial officers. We

ultimately determine that he could do so pursuant to the

District Court‘s ―Equal Employment Opportunity and

Employment Dispute Resolution Plan.‖

As Appellees (and the District Court) note, the

Consolidated Model Plan5—which was drafted by the Third

Circuit Judicial Council and adopted by the District Court of

the Virgin Islands—provides for a review process consisting

of the following stages: counseling, mediation, a ―hearing

before the chief judge (or his or her designee) of the court in

which the alleged violation arises,‖ and, finally, ―review of

taking part in union activities. Am. Fed. Of Gov‘t Employees

Local 1 v. Stone, 502 F.3d 1027, 1029-32, 1034-39 (9th Cir.

2007). In the process, the Ninth Circuit expressly

distinguished Dotson on the grounds that the former judicial

employee ―had other remedial mechanisms available.‖ Id. at

1038 (citing, inter alia, Dotson, 398 F.3d at 181).

5

Although the Consolidated Model Plan was

not included in the record on appeal, we note that it was

discussed by both the Court of Federal Claims and the

District Court and that Semper himself submitted a copy of

the document to the Court of Federal Claims. See, e.g.,

Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d

414, 416 n.3 (3d Cir. 1988).

31

the hearing decision under procedures established by the

judicial council of the circuit.‖ (Appellees‘ Addendum at 20.)

The remedial plan expressly covers probation officers. An

employee may ask for the disqualification of a judicial officer

with prior involvement in the dispute by filing a written

request with the Chief Judge (which will be decided by the

next otherwise available active judge if the Chief Judge is

named as involved in the dispute). If the Chief Judge is

disqualified or unavailable, this next available active judge

will then serve as the reviewing officer. In turn, where the

employee alleges that an Article III judge has violated rights

protected by the Consolidated Model Plan, this judge may

elect to have a hearing conducted by a judicial officer from

another court. The employee (as well as the individuals

alleged to have violated his or her rights and the unit

executive in charge of the employing office) has the right to

be represented by a person of his or her choice.

After providing notice and an opportunity to respond,

the respective judicial officer may dismiss in writing any

complaint that the judge finds to be frivolous, unduly

repetitive, fails to state a claim upon which relief may be

granted, or makes a claim that was not advanced in

mediation. If not, the judge ―shall hold a hearing on merits of

the complaint unless he or she determines that no material

factual dispute exists.‖ (Id. at 28.) The presiding judicial

officer may provide for discovery and investigation before

any such hearing takes place. ―At the hearing, the

complainant, the unit executive of the office against which

the complaint has been filed and the individual alleged to

have violated rights protected by this Consolidated Model

32

Plan will have the rights to representation, to present evidence

on his or her behalf, and to cross-examine adverse witnesses.‖

(Id. at 29.) A verbatim record of the hearing must be

prepared, and the judicial officer must issue a final decision in

writing. ―The EDR/EEO Decisions Review Committee of the

Third Circuit Judicial Council, on behalf of the Third Circuit

Judicial Council, will review decisions of the hearing officer,

when properly petitioned, . . . by a party or individual

aggrieved by a final decision of the hearing officer or by a

summary dismissal of the complaint.‖ (Id. at 31.) ―Any

review will be conducted by a judicial officer, based on the

record created by the hearing officer, and shall be affirmed if

supported by substantial evidence.‖ (Id. at 30.) The review

committee‘s decision must be in writing.

The Consolidated Model Plan expressly provides for a

number of different remedies, such as ―reinstatement to a

position from which previously removed,‖ ―back pay and

associated benefits, including attorneys‘ fees, where the

statutory criteria of the Back Pay Act‖ are satisfied, ―records

modification and/or expungement,‖ ―‗equitable‘ relief, such

as temporary stays of adverse actions,‖ and ―appropriate

action against a judicial officer or other individual found to

have violated rights protected under this Consolidated Model

Plan.‖ (Id. at 32.) Retaliation against complainants and

participants in the filing or processing of a complaint is

expressly prohibited.

The detailed remedial scheme adopted by the District

Court clearly provides for both a measure of judicial review

and the means to obtain meaningful relief to ―[a]n employee

33

covered under this Consolidated Model Plan who claims a

denial of the rights granted hereunder.‖ (Id. at 20.) Unlike

their competitive service counterparts in Elgin (who only

have a right to seek judicial review by the Federal Circuit of

decisions rendered by the MSPB, see, e.g., Elgin, 132 S. Ct.

at 2130-31), a District Court employee may obtain a hearing

on the merits of his or her complaint before an actual judicial

officer. If this judicial officer rules against the employee, he

or she then may seek review by a panel of other judicial

officers, subject to the same substantial evidence standard

applicable to the Federal Circuit‘s review of MSPB decisions.

See, e.g., id. Admittedly, the Consolidated Model Plan does

expressly prohibit ―payment of attorneys‘ fees (except as

authorized under the Back Pay Act).‖ (Id. at 33). But it still

authorizes the judicial officer to provide a wide range of other

remedies to a successful complainant, such as back pay and

associated benefits (including attorney‘s fees if authorized

under the Back Pay Act), expungement of the record, and

other forms of equitable relief. Most importantly, the District

Court‘s plan expressly provides for the remedy of

reinstatement. Cf., e.g., Bush, 462 U.S. at 372 & n.9

(assuming that Bush‘s civil service remedies were not as

effective as individual damages remedy and did not fully

compensate him for harm suffered and observing that his

attorney‘s fees were not paid).

The parties as well as the Court of Federal Claims and

the District Court itself vigorously contest the applicability of

the Consolidated Model Plan. Semper also contends that the

doctrine of judicial estoppel bars Appellees from now taking

the position that the District Court‘s remedial plan applies to

34

his claims. In the end, we agree with the Appellees‘ own

reading of the District Court‘s remedial plan—specifically

that it ―covers plaintiff‘s claim that he was terminated without

cause and in violation of his due process rights.‖ (Appellees‘

Brief at 36 (citation omitted).)

The Consolidated Model Plan includes the following

―Coverage‖ language:

This Consolidated Model Plan addresses

the following workplace and employment

issues:

(1) equal employment opportunity

and anti-discrimination rights;

(2) sexual harassment;

(3) personnel practices, including

recruitment, hiring, promotion

and advancement;

(4) family and medical leave rights;

(5) worker adjustment and retraining

notification rights;

(6) employment and re-employment

rights of members of the

uniformed services;

(7) occupational safety and health

protections;

(8) polygraph tests; and

(9) employee dispute resolution

procedures for claims of the

35

denial of the rights afforded under

this Consolidated Model Plan.

(Appellees‘ Addendum at 8-9.) The document then contains

separate chapters addressing the various workplace and

employment rights that it protects, i.e., ―Equal Employment

Opportunity and Anti-Discrimination Rights‖ (Chapter 2),

―Personnel Practices‖ (Chapter 3), ―Family and Medical

Leave Rights‖ (Chapter 4), ―Worker Adjustment and

Retraining Notification Rights‖ (Chapter 5), ―Employment

and Reemployment Rights of Members of the Uniformed

Services‖ (Chapter 6), ―Occupational Safety and Health

Protections (Chapter 7), and ―Polygraph Tests‖ (Chapter 8).

(Id. at 14-19 (emphasis omitted).) Furthermore, ―[i]t is

intended to be the exclusive remedy of the employee relating

to rights enumerated under this Consolidated Model Plan.‖

(Id. at 9.) Therefore, ―[a]n employee covered under this

Consolidated Model Plan who claims a denial of the rights

granted hereunder shall seek resolution of such claims

through the procedures‖ established by the Consolidated

Model Plan itself. (Id. at 20.) However, general employment

dispute and personnel grievance procedures that do not

―invoke the protections of this Consolidated Model Plan‖ also

remain in effect. (Id. at 9.) In seeking relief, the employee is

required to select either the Consolidated Model Plan or (if

available) the general grievance and adverse action appeal

procedures.

According to Semper, the remedial plan does not

protect or enumerate any employee rights with respect to

termination unless the employee was terminated for

36

discriminatory reasons or some other ground otherwise

covered by the plan document itself (e.g., in retaliation for

filing a complaint). We acknowledge that Chapter 3, which

governs ―Personnel Practices,‖ does not expressly refer to

discharge or termination. (Id. at 15 (emphasis omitted).)

Likewise, the ―Coverage‖ section itself does not include

termination in its enumeration of covered ―personnel

practices.‖ (Id. at 8.) Semper claims that the absence of any

reference to termination is not surprising because most

judicial employees are terminable at will. Probation officers,

however, have a statutory right to for-cause termination.

Accordingly, the Judicial Conference has developed a ―Model

Adverse Action Procedure for Removal of a Probation

Officer.‖ Unlike the United States District Court for the

Southern District of New York, Dotson, 398 F.3d at 161, the

District Court of the Virgin Islands has not adopted this

specific plan.

Although Semper does present a somewhat plausible

reading of the Consolidated Model Plan, we nevertheless

determine that the remedial plan adopted by the District Court

―covers plaintiff‘s claim that he was terminated without cause

and in violation of his due process rights.‖ (Appellees Brief

at 36 (citation omitted).) In other words, we believe that

Semper, in essence, ―claims a denial of the rights granted

[under the Consolidated Model Plan].‖ (Appellees‘

Addendum at 20.) Intended to provide District Court

employees with their exclusive remedy, the 29-page

Consolidated Model Plan addresses at some length its

purpose and scope, the various rights protected, the

procedures to be followed by an employee who complains

37

that his or her rights have been violated, and the remedies

available if judicial officers find that such rights have actually

been infringed. In turn, the remedial plan expansively

―addresses‖ a number of ―workplace and employment

issues,‖ specifically enumerated in nine distinct categories

ranging from ―equal employment opportunity and anti-

discrimination rights‖ to ―employment dispute resolution

procedures for claims of the denial of the rights afforded

under this Consolidated Model Plan.‖ (Id. at 8-9.)

Accordingly, the Court of Federal Claims was incorrect when

it stated that the District Court‘s remedial plan ―covers only

equal employment opportunity and anti-discrimination

rights.‖ Semper, 100 Fed. Cl. at 637 (citing Consolidated

Model Plan). In fact, the document actually lists ―personnel

practices‖ as one of the ―workplace and employment issues‖

it is meant to address. (Id. at 8.) It then states that such

practices ―include‖ recruitment, hiring, promotion, and

advancement, indicating that additional ―personnel

practices‖—like termination of employment—are

encompassed under this rubric. See, e.g., In re APA Transp.

Corp. Consol. Litig., 541 F.3d 233, 241 (3d Cir. 2008) (―It is

a well-established canon of statutory construction that when

the word ‗including is followed by a list of examples, those

examples are generally considered illustrative rather than

exhaustive.‘‖ (citations omitted)). The Consolidated Model

Plan also authorizes the judicial officer to order

―reinstatement to a position from which [the complainant

was] previously removed.‖ (Id. at 32.) Obviously, an

individual cannot be reinstated unless the employment

relationship was terminated in some fashion. Although (as

Semper indicates) the reinstatement remedy may be available

38

where, for instance, an otherwise at-will employee was

terminated for discriminatory reasons, we believe that the

existence of this remedy—considered together with the other

aspects of the expansive remedial plan adopted by the District

Court for its own employees—weighs in favor of Appellees‘

reading. We find it unlikely that such a comprehensive plan

designed to protect the rights of employees would not cover

probation officers who (unlike their co-workers) are protected

from termination by a specific statutory provision.

It is undisputed that Appellees did not specifically

assert that the Consolidated Model Plan applies to Semper

and his claims for relief before they filed their appellate brief

with this Court. In addition to claiming that Appellees

thereby waived any argument that the District Court‘s

remedial plan provides a remedy, Semper vigorously

contends that the doctrine of judicial estoppel should be

applied to bar Appellees‘ ―gamesmanship‖ in

opportunistically seizing on the District Court‘s incorrect

characterization of the Consolidated Model Plan ―to now

claim that [it] gave Officer Semper a remedy.‖ (Appellant‘s

Reply Brief at 7 (emphasis omitted).) In particular, he points

to the following exchange that occurred at oral argument

before the Federal Circuit between the Justice Department

attorney and Judge O‘Malley:

Q. ―Was there a mechanism for [Officer

Semper] to challenge [his termination] within

the Circuit?‖

39

A. ―As far as I know, Mr. Semper is right, is

that, the district court in the Virgin Islands has

not adopted the specific adverse procedures

with respect to pers__, um probation officers

and I believe the regular employment dispute

resolution procedures do not cover this situation

so I, I I, don‘t believe there was an

administrative remedy within this particular

court.‖

(Id. at 2 (quoting Recording at 18:35-19:05).) The Justice

Department attorney made a similar statement in response to

a question by Judge Bryson asking ―‗[h]ow does that person

enforce the ‗for cause‘ entitlement, other than by moral

suasion‘‖: ―‗I‘m not sure that he can. I‘m not sure that there

is a judicial remedy.‘‖ (Id. at 16 (quoting Recording at 16:55-

17:22).)

―Judicial estoppel is a fact-specific, equitable doctrine,

applied at courts‘ discretion.‖ In re Kane, 628 F.3d 631, 638

(3d Cir. 2010). It rests on the basic notion that, ―‗absent any

good explanation, a party should not be allowed to gain an

advantage by litigation on one theory, and then seek an

inconsistent advantage by pursuing an incompatible theory.‘‖

Id. (quoting Krystal Cadillac-Oldsmobile GMC Truck, Inc. v.

Gen. Motors Corp., 337 F.3d 214, 319-20 (3d Cir. 2003)); see

also, e.g., id. (noting that several criteria guide application of

judicial estoppel doctrine, i.e., whether two positions are

irreconcilably inconsistent, whether the party changed

position in bad faith, whether relief is tailored to address harm

40

and no lesser sanction would suffice as remedy, and whether

party is provided with opportunity to offer explanation).

We are troubled by the manner in which the Justice

Department has addressed the applicability of the District

Court‘s remedial plan, and we are especially concerned about

the statements made at oral argument before the Federal

Circuit. Under the circumstances, one could reasonably

conclude that Semper is the victim of the proverbial ―run

around‖ in his ongoing attempt to have his constitutional

claims heard on their merits and obtain some sort of relief—

from the Court of Federal Claims and the Federal Circuit to

the District Court and this Court and, finally, to the remedial

process adopted by the District Court.

Nevertheless, we do not believe that it is appropriate to

apply this fact-specific and equitable doctrine in the present

circumstances.

Initially, Appellees appropriately note that judicial

estoppel cannot be used to create subject matter jurisdiction.

See, e.g., Erie Ins. Exch. v. Erie Indemn. Co., 722 F.3d 154,

162-63 (3d Cir. 2013). Likewise, such jurisdictional defects

may be raised at any time (and, in fact, must be raised sua

sponte). See, e.g., Frett-Smith v. Vanterpool, 511 F.3d 396,

399 n.3 (3d Cir. 2008). The question of whether or not the

CSRA bars a federal employee from challenging an adverse

employment action in an action filed pursuant to § 1331

represents a threshold jurisdictional determination. See, e.g.,

Elgin, 132 S. Ct. at 2132 (―We granted certiorari to decide

whether the CSRA precludes district court jurisdiction over

41

petitioners‘ claims even though they are constitutional claims

for equitable relief. We conclude that it does, and we

therefore affirm.‖ (citations omitted)); Sarullo, 352 F.3d at

797 (―For these reasons, we hold that the District Court

lacked subject matter jurisdiction to hear Sarullo‘s Bivens

claim as such a claim was barred by the comprehensive

statutory scheme provided in the CSRA, and should have

dismissed the Bivens claim for lack of subject matter

jurisdiction.‖). In this appeal, we must determine whether the

CSRA precludes Semper‘s constitutional claims for equitable

and injunctive relief, and our determination rests on whether

he could pursue meaningful relief under a remedial plan that

provides for meaningful review of his claims by judicial

officers. Accordingly, this jurisdictional inquiry implicates

more than (in Semper‘s terms) ―‗prudential exhaustion.‘‖

(Appellant‘s Reply Brief at 10 n.8 (citation omitted).)

We further note that it was Semper himself who

insisted (and continues to insist) that the Consolidated Model

Plan does not apply in the present circumstances. According

to Semper, the government successfully argued before the

Federal Circuit that the CSRA provides the exclusive remedy

and thereby necessarily conceded that the Consolidated

Model Plan does not apply in the current circumstances. In

short, ―[i]f the [Consolidated Model Plan] had provided

Officer Semper with a remedy, the task of dismissing Officer

Semper‘s complaint in the Court of Federal Claims would

have been easy – simply move to dismiss based upon the

exclusive remedy provided by the [Consolidated Model

Plan].‖ (Appellant‘s Reply Brief at 40.) He nevertheless fails

to cite to any case in which a § 1331 action was dismissed

42

simply because a court (or a federal agency) had established

its own administrative remedies for employment disputes. In

Duffy v. Wolle, 123 F.3d 1026 (8th Cir. 1997), abrogated on

other grounds, Torgerson v. City of Rochester, 643 F.3d 1031

(8th Cir. 2011) (en banc), the Eighth Circuit specifically

determined that a district court‘s adoption of an equal

employment opportunity plan did not prevent an unsuccessful

applicant from bringing a Bivens damages claim for reverse

discrimination in the selection of a new chief probation

officer, id. at 1034-35. Significantly, ―[i]t appears that the

defendants in Duffy never suggested that the CSRA

preempted plaintiff‘s claim.‖ Lee, 145 F.3d at 1276 n.4. The

Second Circuit in Dotson more recently concluded that the

CSRA barred the former probation officer‘s discrimination

and due process claims because of, among other things, ―the

existence of the judiciary‘s own administrative review

procedures for employment disputes.‖ Dotson, 398 F.3d at

160. In addition, the Federal Circuit considered Semper‘s

argument that ―the government‘s contention 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 devised by Judicial Branch agencies

to deal with their employees‘ employment-related

complaints.‖ Semper, 694 F.3d at 94 n.2. The Federal

Circuit expressly rejected this argument, observing that

Congress‘s decision to foreclose excepted service employees

from challenging adverse employment actions in actions filed

with the Court of Federal Claims does not in any way suggest

that Congress intended to bar either the Judicial or the

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Executive Branch from devising their own administrative

remedies. Id.

Furthermore, we believe that Semper asks us to accord

too much weight to the Court of Federal Claims‘s

characterization of the Consolidated Model Plan. ―[J]udicial

estoppel is generally not appropriate where the defending

party did not convince the [court] to accept its earlier

position.‖ G-Holdings, Inc. v. Reliance Ins. Co., 586 F.3d

247, 262 (3d Cir. 2009) (citing United States v. Pelullo, 399

F.3d 197, 222-23 (3d Cir. 2005); Dam Things from Denmark

v. Russ Berrie & Co., 290 F.3d 548, 599 n.16 (3d Cir. 2002);

Montrose Med. Group v. Bulger, 243 F.3d 772, 778 (3d Cir.

2001)). The Court of Federal Claims rejected the

government‘s theory that CSRA foreclosed Semper from

seeking relief in the Court of Federal Claims. Semper, 100

Fed. Cl. at 626-33. ―[T]he 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 contest his termination before that court.‖ Semper,

694 F.3d at 92. It accordingly considered the Consolidated

Model Plan (and other remedial schemes that have not been

adopted by the District Court) as part of this money-

mandating statute inquiry, and it concluded that ―[s]imply

because the District Court of the Virgin Islands has not

adopted the model procedures does not give plaintiff a cause

of action in this court or in any other federal court.‖ Semper,

100 Fed. Cl. at 638. While the Federal Circuit affirmed the

dismissal of Semper‘s complaint based on the CSRA theory

originally advanced by the government, it did not specifically

discuss the applicability of the Consolidated Model Plan. In

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fact, the only time it really addressed the judiciary‘s remedial

plans was in the context of rejecting Semper‘s own theory

that the government‘s approach would invalidate any

administrative remedies devised by the judiciary. Semper,

694 F.3d at 94 n.2.

In conclusion, we determine that the District Court of

the Virgin Islands lacks subject matter jurisdiction over

Semper‘s constitutional claims for equitable and declaratory

relief. We accordingly will affirm the District Court‘s

dismissal of Count Two (Semper‘s official capacity claim

against then-Chief Judge Gomez) and Count Three (his claim

against the United States) for lack of subject matter

jurisdiction. We likewise conclude that Count One (Semper‘s

claim against then-Chief Judge Gomez named in his

individual capacity) must be dismissed on the same grounds.6

See, e.g., Sarullo, 352 F.3d at 797 (concluding that district

court should have dismissed Bivens claim for lack of subject

matter jurisdiction). Semper asks us to refer this matter to the

Third Circuit Judicial Council to fashion a remedy for him if

we ultimately affirm the decision of the District Court. Such

a step appears unnecessary at this time given our conclusion

6

Because of our jurisdictional ruling, we need

not—and do not—determine whether the District Court

properly concluded that Count One failed to state a claim

under Rule 12(b)(6). We likewise need not—and do—not

reach the question of whether the District Court of the Virgin

Islands constitutes an ―agency‖ for purposes of the APA (in

other words, whether it should be considered as either a court

of the United States or as part of a territorial government).

45

that, in the Appellees‘ own words, the Consolidated Model

Plan does ―cover plaintiff‘s claim that he was terminated

without cause and in violation of his due process rights.‖

(Appellees‘ Brief at 36 (citations omitted).) In turn, our

disposition of this appeal is premised on the expectation that

Appellees will continue to abide by—and defend—their

current reading of the Consolidated Model Plan (a reading

that they once again reiterate in a letter submitted following

oral argument) if Semper decides to pursue relief under the

Consolidated Model Plan itself. We also note that the

Consolidated Model Plan expressly authorizes the judicial

officer to grant extensions of time, i.e., ―[t]he chief judge of

the court, or other presiding judicial officer, may extend any

of the deadlines set forth in this Consolidated Model Plan for

good cause.‖ (Appellees‘ Addendum at 21.)

B. Semper’s Mandamus Claim

In Count Four, Semper sought mandamus relief

against then-Chief Judge Gomez on the grounds that he ―has

a clear right to be employed as a probation officer until such

time as he is found, after notice and an opportunity to [be]

heard, that there is cause to terminate him‖ and that Chief

Judge Gomez ―has a clear legal duty to continue to employ

Officer Semper until such time as Officer Semper is given

notice and a pre-termination hearing as to the basis for the

claim that there is a cause to dismiss him.‖ (A32.) The

Mandamus Act provides that ―[t]he district courts shall have

original jurisdiction of any action in the nature of mandamus

to compel an officer or employee of the United States or any

46

agency thereof to perform a duty owed to the plaintiff.‖ 28

U.S.C. § 1361.

Semper recognizes that the District Court of the Virgin

Islands does not constitute an ―agency‖ for purposes of this

statutory provision. Relying on the doctrine of judicial

immunity as well as the Tenth Circuit‘s ruling in Trackwell v.

United States Government, 472 F.3d 1242 (10th Cir. 2007),

he goes on to claim that a judge or judicial employee

constitutes ―an officer or employee of the United States,‖ at

least with respect to non-judicial administrative duties.

However, as the Second Circuit explained in Liberation News

Service v. Eastland, 426 F.2d 1379 (2d Cir. 1970), it appears

that Congress, in enacting § 1361 (and 28 U.S.C. § 1391(e), a

related venue provision), ―was thinking solely in terms of the

executive branch,‘‖ Eastland, 426 F.2d at 1384. ―Relying on

Eastland, two other circuit courts have held that § 1391(e)

does not apply to defendants affiliated with the judicial

branch.‖ Trackwell, 472 F.3d at 1246 (citing King v. Russell,

963 F.2d 1301, 1303-04 (9th Cir. 1992); Duplantier v. United

States, 606 F.2d 654, 663-64 (5th Cir. 1979)). The Trackwell

court concluded that a district court lacked jurisdiction over a

mandamus claim against the Clerk of the United States

Supreme Court because, while the office of the Clerk is not

the Supreme Court itself, the plaintiff was asking him to

perform a judicial function delegated by the Supreme Court

itself, i.e., the filing of an application (and, in the judicial

immunity context, a court clerk who assists a court or a judge

in the discharge of judicial functions is considered to be the

functional equivalent of the judge). Id. at 1247. Likewise,

we do not believe that it would be appropriate for the District

47

Court of the Virgin Islands to issue a writ of mandamus

against its own Chief Judge, ―ordering him to reinstate Mr.

Semper to his position as probation officer, retroactive to

August 6, 2010, until ordering that he may not terminate

Officer Semper without first providing him with notice and an

opportunity to be heard as to the basis for any such

termination‖ (A32). See, e.g., id. at 1246 (―For a district

court to issue a writ of mandamus against an equal or higher

court would be remarkable.‖); Semper, 2013 WL 2451711, at

*6 (―Although a higher court has power to grant a writ of

mandamus against a lower court, the district court has no

power to issue the writ against its judicial officers or the

federal courts.‖ (citing Smith v. Kriegh, 643 F. Supp. 2d 1274

(D. Colo. 2009); 28 U.S.C. § 1651). It is not surprising that

Semper himself has failed to cite to any decision allowing

such an unusual claim to go forward.

We therefore conclude that the District Court properly

dismissed Count Four on jurisdictional grounds. In any

event, a writ of mandamus also represents an extraordinary

remedy. See, e.g., Stehney v. Perry, 101 F.3d 925, 934 (3d

Cir. 1996) (―‗It is not disputed that the remedy of mandamus

is a drastic one, to be invoked only in extraordinary

situations.‘‖ (quoting Allied Chem. Corp. v. Daiflon, Inc.,

449 U.S. 33, 34 (1980) (footnote omitted)). Specifically,

―[t]he common-law writ of mandamus, as codified in 28

U.S.C. § 1361, is intended to provide a remedy for a plaintiff

only if he has exhausted all other avenues of relief.‖ Heckler

v. Ringer, 466 U.S. 602, 616 (1984) (citing Kerr v. U.S. Dist.

Ct., 426 U.S. 394, 402-03 (1976); United States ex rel. Girard

Trust Co. v. Helvering, 301 U.S. 540, 543-44 (1937)); see

48

also, e.g., Stehney, 101 F.3d at 934 n.6. As we have

explained in some detail, Semper could pursue meaningful

relief under the Consolidated Model Plan adopted by the

District Court of the Virgin Islands. Accordingly, we do not

believe that the extraordinary remedy of a writ of mandamus

would be appropriate in the present circumstances.

III.

For the foregoing reasons, we will affirm the order of

the District Court insofar as it dismissed Counts Two, Three,

and Four of Semper‘s amended complaint for lack of subject

matter jurisdiction. In addition, we will remand this matter to

the District Court with instructions to dismiss Count One of

the amended complaint for lack of subject matter jurisdiction.

49