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Alfredo Semper v. United States

September 7, 2012

ALFREDO SEMPER, PLAINTIFF-APPELLANT,
v.
UNITED STATES, DEFENDANT-APPELLEE.



Appeal from the United States Court of Federal Claims in Case No. 10-CV-616 Judge Marian Blank Horn.

The opinion of the court was delivered by: Bryson, Circuit Judge.

Before BRYSON, O'MALLEY, and WALLACH, Circuit Judges.

I

Alfredo Semper worked as a probation officer for the District Court of the Virgin Islands until he was removed from his position on August 6, 2010. The reason given for his termination was that he was negligent in the supervision of a convicted defendant who was killed while on release pending sentencing.

Mr. Semper filed a complaint in the U.S. Court of Federal Claims seeking review of his termination. As defendants, he named the United States as well as the Chief Judge of the District Court of the Virgin Islands and the court's Chief U.S. Probation Officer. In his complaint, Mr. Semper asserted that he was "denied Due Process under the U.S. Constitution" and that the defendants violated 18 U.S.C. § 3602(a), which states that a court may remove a compensated probation officer "for cause." Mr. Semper argued that his termination was unjustified and that he was entitled to reinstatement and back pay.

The government argued that the Court of Federal Claims lacked jurisdiction over Mr. Semper's claim. The government noted that, under the Civil Service Reform Act of 1978 ("CSRA"), Mr. Semper was classified as a member of the "excepted service," not the "competitive service," and was not among those excepted service employees whom the statute makes eligible for judicial or administrative review of adverse agency action. 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.

The Court of Federal Claims dismissed Mr. Semper's complaint for lack of jurisdiction, but not on that ground. The court 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. However, the 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.

We agree with the judgment of the Court of Federal Claims but affirm 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.

II

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. 5 U.S.C. §§ 7501-7543. The statute provides those procedural protections for only certain adverse actions, including removal, suspension for more than 14 days, and reduction in pay or grade. Id. § 7512. In disputes involving those actions, the CSRA provides for administrative review by the Merit Systems Protection Board ("MSPB"), followed by review by this court.

The statute 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. See 5 U.S.C. § 7511(a)(1) (limiting the definition of "employee" to certain personnel); id. § 7511(b) (excluding certain "employees" from the provided procedures).

Under section 7511(a)(1), individuals are considered employees if they fall within one of three categories:

(A) an individual in the competitive service-

(i) who is not serving a probationary or trial period under an ...


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