In Re U.S.

United States Court of Appeals for the Federal Circuit

Miscellaneous No.806

IN RE UNITED STATES,

Petitioner.

Gregory G. Katsas, Deputy Assistant Attorney General, Civil Division, United
States Department of Justice, of Washington, DC, argued for petitioner. With him on the
brief were Peter D. Keisler, Assistant Attorney General, Sharon Swingle, and Robert M.
Loeb, Attorneys, Appellate Staff.

Cletus P. Lyman, Lyman & Ash, of Philadelphia, Pennsylvania, argued for
respondent.

On Petition for a Writ of Mandamus to the United States Court of Federal Claims

Judge Lawrence M. Baskir
 United States Court of Appeals for the Federal Circuit

Miscellaneous No. 806

IN RE UNITED STATES,

Petitioner.

__________________________

DECIDED: September 11, 2006
__________________________

Before SCHALL, GAJARSA, and PROST, Circuit Judges.

SCHALL, Circuit Judge.

The United States petitions for a writ of mandamus under the All Writs Act, 28

U.S.C. § 1651(a).1 In its petition, the government challenges various rulings of the

United States Court of Federal Claims in the case of Scholl v. United States, No. 00-

737C (Fed. Cl.). All proceedings in the Court of Federal Claims have been stayed

pending our consideration of the petition.

This case involves a suit, purportedly under the Tucker Act, 28 U.S.C.

§ 1491(a)(1), by David A. Scholl, a former bankruptcy judge of the United States District

Court for the Eastern District of Pennsylvania. In his suit, Mr. Scholl alleges that the

denial of his reappointment as a bankruptcy judge by the United States Court of

1
Section 1651(a) provides: “The Supreme Court and all courts established
by Act of Congress may issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and principles of law.”
Appeals for the Third Circuit was in violation of his right to due process under the Fifth

Amendment to the Constitution and certain regulations relating to the reappointment of

bankruptcy judges that have been promulgated by the Judicial Conference of the United

States.

Because the Court of Federal Claims should not have exercised jurisdiction over

Mr. Scholl’s suit and because the requirements for the writ of mandamus are met, we

grant the government’s petition for a writ of mandamus and direct the court to dismiss

Mr. Scholl’s complaint.

BACKGROUND

I.

In each federal judicial district, the bankruptcy judges in regular active service

“constitute a unit of the district court . . . known as the bankruptcy court for that district.”

28 U.S.C. § 151. In each district, bankruptcy judges are appointed by a majority of the

active judges of the circuit court of appeals in which the district is located. Id.

§ 152(a)(1). Each appointment is for a term of fourteen years. Id. Section 303 of the

Federal Court’s Improvement Act of 1996, Pub. L. No. 104-317, § 303, 110 Stat. 3852

(1996), codified as a note to section 152, provides that “[w]hen filling vacancies, the

court of appeals may consider reappointing incumbent bankruptcy judges under

procedures prescribed by regulations issued by the Judicial Conference of the United

States.” The Judicial Conference of the United States (the “Judicial Conference”) “is the

statutorily created body of federal judges that establishes policy for the administration of

the Judicial Branch.” Williams v. United States, 240 F.3d 1019, 1061 n.24 (Fed. Cir.

2001) (citing 28 U.S.C. § 331). The Judicial Conference is composed of the Chief

Miscellaneous No. 806 2
Justice of the United States, “the chief judge of each judicial circuit, the chief judge of

the Court of International Trade, and a district judge from each judicial circuit.” 28

U.S.C. § 331. The Third Circuit generally follows the Judicial Conference regulations,

although it has never formally adopted them.

In 2000, the year in which Mr. Scholl was denied reappointment, sections 5.01(b)

and (c) of Chapter 5 of the Judicial Conference regulations provided:

(b) The court of appeals will decide whether or not to
reappoint the incumbent judge. In making this decision, the
court of appeals shall take into consideration the
professional and career status of the incumbent.
Reappointment should not be denied unless the incumbent
has failed to perform the duties of a bankruptcy judge
according to the high standards of performance regularly
met by United States bankruptcy judges.

(c) If the court of appeals determines by majority vote of the
active judges of that court that the incumbent bankruptcy
judge appears to merit reappointment, the court shall follow
the procedures set forth in following sections 5.02 and 5.03.

Section 5.02 of the regulations provided that, if the court of appeals determined

that an incumbent bankruptcy judge who was willing to be reappointed appeared to

merit reappointment, the circuit executive of the court would cause to be published a

public notice stating that the court was considering the judge for reappointment and

inviting comments from members of the bar and the public. Section 5.03 of the

regulations dealt with the process by which the court of appeals would decide on the

reappointment after comments from the bar and public were reviewed.2

2
In 2001, the Judicial Conference amended section 5.01(b) of Chapter 5 of
the regulation by deleting the sentence that began: “Reappointment should not be
denied unless.” This amendment was made in order to avoid the creation of a
presumption of reappointment. See Report of the Proceedings of the Judicial
Conference of the United States, March 14, 2001, available at

Miscellaneous No. 806 3
 II.

On August 27, 1986, Mr. Scholl was appointed to the Bankruptcy Court for the

Eastern District of Pennsylvania by the Court of Appeals for the Third Circuit. His

fourteen-year term of appointment ended on August 26, 2000. In a letter addressed to

the Chief Judge of the Third Circuit, dated December 29, 1999, Mr. Scholl expressed

his “willingness to accept reappointment.” A preliminary vote of the active judges of the

Third Circuit was held, and Mr. Scholl received enough votes to have his reappointment

proceed through the public notice and comment process. The process involved notices

in local newspapers seeking comments on the proposed reappointment, as well as

1,165 questionnaires sent to attorneys and bankruptcy trustees who had appeared

before Mr. Scholl during his tenure as a judge. Approximately 300 of the questionnaires

were returned to the court of appeals. Mr. Scholl was provided with copies of all

comments and a detailed chart analyzing the responses to the questionnaires, to which

he submitted a detailed response. Upon reviewing the comments, responses to the

questionnaires, and Mr. Scholl’s response, the active judges of the Third Circuit voted

11-to-1 against reappointment of Mr. Scholl. In a May 25, 2000 letter, Mr. Scholl was

informed of the adverse vote, and was told that the process to appoint a replacement

was being initiated. Mr. Scholl served as a bankruptcy judge until his term ended on

August 26, 2000.

(Cont’d. . . .)

http://www.uscourts.gov/judconf/01-mar.pdf. The Judicial Conference also amended
the regulations to eliminate the requirement in section 5.01(c) that the court of appeals
take an initial vote to determine whether the incumbent appeared to merit
reappointment, thereby providing that the court of appeals could proceed directly to the
public comment period. Id.

Miscellaneous No. 806 4
 III.

After the expiration of his term, Mr. Scholl brought the present action in the Court

of Federal Claims, purportedly under the Tucker Act. In Count I of his complaint, he

alleges, that as a bankruptcy judge, he had a “property interest in continued

employment that was taken in violation of the Due Process Clause of the Fifth

Amendment to the U.S. Constitution.” Compl. ¶ 19. In Count II of his complaint, he

alleges that the failure to reappoint him was in violation of the Judicial Conference

regulations. Id. ¶ 37. Mr. Scholl asserts that 28 U.S.C. § 153(a), the pay statute for

bankruptcy judges, and the Judicial Conference regulations support Tucker Act

Jurisdiction in the Court of Federal Claims.

In due course, the government moved, pursuant to Rule 12(b)(1) of the Rules of

the Court of Federal Claims, to have Mr. Scholl’s suit dismissed for lack of jurisdiction.3

The government argued that the case should be dismissed for lack of subject matter

jurisdiction under the Tucker Act because Mr. Scholl did not have a firm right to

reappointment under a money mandating statute, regulation of an executive

department, or Constitutional provision. The court rejected this contention in Scholl I,

54 Fed. Cl. at 643-44, 650. The court ruled that under the applicable Judicial

Conference regulations, “Judge Scholl had a firm right to be reappointed as a

[bankruptcy] judge, absent the showing that he had failed to perform according to high

standards.” The government made a renewed motion to dismiss for lack of subject

3
The government also moved to have Mr. Scholl’s suit dismissed for failure
to state a claim upon which relief may be granted pursuant to Rule 12(b)(6). Scholl v.
United States, 54 Fed. Cl. 640, 643 (2002) (“Scholl I”).

Miscellaneous No. 806 5
matter jurisdiction, which was denied in Scholl v. United States, 61 Fed. Cl. 322 (2004)

(“Scholl II”).

Four months later, the government filed a “Motion to Certify Interlocutory Appeal

and to Stay Further Proceedings.” In its motion, the government argued that whether

Mr. Scholl states a claim when he seeks back pay for not being reappointed and

whether the Court of Federal Claims possesses jurisdiction to review the Third Circuit’s

decision not to reappoint him are controlling questions of law, and that if the decision of

the trial court is reversed with respect to either issue, dismissal of the suit would result.

Interlocutory Appeal Mot. at 3-4, 9-11. The government further argued that whether a

“firm right” to reappointment exists is an issue of first impression upon which there are

substantial grounds for a difference of opinion. Id. at 6-8. Finally, the government

asserted that the trial court should grant a discretionary stay because “discovery in this

case likely would involve a sensitive and potentially burdensome inquiry into the basis

for the decision of the Third Circuit judges . . . .” Id. at 11-12.

The Court of Federal Claims determined that the government’s motion was

untimely and that, in any event, the government had failed to satisfy the requirements

for an interlocutory appeal. Consequently, the court denied certification for interlocutory

appeal in Scholl v. United States, 68 Fed. Cl. 58 (2005) (“Scholl III”). Mr. Scholl then

moved to compel the government’s answer to an interrogatory seeking the name and

nature of the testimony of each witness that the government intended to call at trial.

The government’s response opposed Mr. Scholl’s motion to compel and also presented

a “Renewed Motion for Certification of an Interlocutory Appeal.”

Miscellaneous No. 806 6
 In its response, the government stated that “[i]f Mr. Scholl intends to challenge

the merits of the decision not to appoint” him, “the likely witnesses would be one or

more Third Circuit judges.” Government’s Opp’n to Mot. to Compel Disc. at 3. The

government also stated that the decision whether to reappoint a bankruptcy judge “is

sufficiently judicial in nature to warrant the assertion of the judicial function privilege.”4

Id. at 7. The government further stated that communications between attorneys working

for the Third Circuit and the Third Circuit judges were protected by attorney-client

privilege. Id. at 7-10. Finally, in support for its Renewed Motion for Certification of an

Interlocutory Appeal, the government, among other arguments, asserted that “[b]asic

separation-of-powers principles” prevent an Article I court (the Court of Federal Claims)

from reviewing a Judicial Branch appointment decision. Id. at 16.

The Court of Federal Claims, inter alia, (i) granted the motion to compel the

interrogatory answer insofar as it related to Count II of the complaint, (ii) directed the

government to submit under seal to the court all documents in its privilege log for in

camera review, (iii) issued an order to show cause why the Due Process claim in Count

I should not be dismissed for lack of subject matter jurisdiction, and (iv) denied the

Renewed Motion for Certification of an Interlocutory Appeal for the same reasons that it

4
“Judges, like Presidents, depend upon open and candid discourse with
their colleagues and staff to promote the effective discharge of their duties.” In re
Certain Complaints Under Investigation by an Investigating Comm., 783 F.2d 1488,
1519 (11th Cir. 1986) (“Hastings”), quoted in In re Grand Jury, 821 F.2d 946, 957 (3rd
Cir. 1987). “[T]here exists a [qualified] privilege . . . protecting confidential
communications among judges and their staffs in the performance of their judicial
duties.” Hastings, 783 F.2d at 1520, cited in Smith v. U.S. Dist. Court for the S. Dist. of
Ill., 956 F.2d 647, 650 (7th Cir. 1992). “The judicial privilege is grounded in the need for
confidentiality in the effective discharge of the federal judge’s duties. In the main, the
privilege can extend only to communications among judges and others relating to official
judicial business such as, for example, the framing and researching of opinions, orders,
and rulings.” Hastings, 783 F.2d at 1520.

Miscellaneous No. 806 7
had denied the original motion. Scholl v. United States, 69 Fed. Cl. 393 (2005) (“Scholl

IV”). The government then petitioned this court for a writ of mandamus. As noted

above, proceedings in the Court of Federal Claims have been stayed pending our

consideration of the petition.

DISCUSSION

I.

A writ of mandamus is a “‘drastic and extraordinary’ remedy ‘reserved for really

extraordinary causes.’” Cheney v. U.S. Dist. Court for the D.C., 542 U.S. 367, 380

(2004) (quoting Ex parte Fahey, 332 U.S. 258, 259-60 (1947)). The Supreme Court has

explained that “[t]he traditional use of the writ in aid of appellate jurisdiction both at

common law and in the federal courts has been to confine the court against which

mandamus is sought to a lawful exercise of its prescribed jurisdiction.” Id. (quoting

Roche v. Evaporated Milk Assn., 319 U.S. 21, 26 (1943)).

Three conditions must be satisfied before a court will issue a writ of mandamus.

First, “the party seeking issuance of the writ must have no other adequate means to

attain the relief he desires.” Id. (quoting Kerr v. U.S. Dist. Court for the N. Dist. of Cal.,

426 U.S. 394, 403 (1976)). Second, “the petitioner must satisfy the burden of showing

that his right to issuance of the writ is ‘clear and indisputable.’” Id. at 381 (quoting Kerr,

426 U.S. at 403). Third, “even if the first two prerequisites have been met, the issuing

court, in the exercise of its discretion, must be satisfied that the writ is appropriate under

the circumstances.” Id. (citing Kerr, 426 U.S. at 403).

Miscellaneous No. 806 8
 II.

In its petition for mandamus, the government argues that the Court of Federal

Claims “made an extraordinary claim of power to review” the Third Circuit’s decision not

to reappoint Mr. Scholl as a bankruptcy judge. Pet. at 1. The government asserts:

Congress vested that appointment power exclusively in the
Courts of Appeals, and declined to provide would-be judicial
officers with a private right of action in the [Court of Federal
Claims]. Review of the Third Circuit’s appointment decisions
by an Article I court would raise serious Appointments
Clause and separation-of-powers problems, which by
themselves warrant immediate mandamus review.

Id. The government further asserts that “the [Court of Federal Claims] has now

imposed an additional, concrete, and imminent harm on the Third Circuit, by requiring it

to turn over for in camera review documents containing Circuit Judges’ internal

deliberations and other privileged and confidential communications relating to the

appointment decision at issue.” Id. In view of the trial court’s denials of certification for

interlocutory appeal and its order compelling discovery, the government concludes that

no remedy other than mandamus is available to prevent “imminent, concrete, and

irreparable harm” to the Third Circuit, the separation of powers, and the deliberative

process. Id. at 1, 26-30.

Mr. Scholl responds that the government has “failed to meet the requirements of

the drastic remedy of mandamus and show that the circumstances here are

extraordinary.” Scholl’s Answer to Pet. at 10. According to Mr. Scholl, “the trial court

did not usurp power; its decisions are not clearly and indisputably incorrect; relief by

appeal from final judgment is available . . . .” Id.

Miscellaneous No. 806 9
 After the mandamus petition and Mr. Scholl’s response were filed, we asked the

parties to brief, and we heard oral argument on, the question of the jurisdiction of the

Court of Federal Claims under the Tucker Act. We now grant the government’s petition

for mandamus. We do so because the Court of Federal Claims erred by exercising

jurisdiction in this case and because the requirements for mandamus have been met.

We begin with the matter of jurisdiction.

III.

In relevant part, the Tucker Act gives the Court of Federal Claims “jurisdiction to

render judgment upon any claim against the United States founded either upon the

Constitution, or any Act of Congress or any regulation of an executive department, . . .

or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C.

§ 1491(a)(1). However, the Tucker Act “is itself only a jurisdictional statute; it does not

create any substantive right enforceable against the United States for money damages.”

United States v. Testan, 424 U.S. 392, 398 (1976). Thus, “in order to invoke jurisdiction

under the Tucker Act, a plaintiff must point to a substantive right to money damages

against the United States.” Hamlet v. United States, 63 F.3d 1097, 1101 (Fed. Cir.

1995) (citing Testan, 424 U.S. at 398). This means that a Tucker Act plaintiff must

assert a claim under a separate money-mandating constitutional provision, statute, or

regulation, the violation of which supports a claim for damages against the United

States. See Todd v. United States, 386 F.3d 1091, 1094 (Fed. Cir 2004); Holley v.

United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997); Adkins v. United States, 68 F.3d

1317, 1321 (Fed. Cir. 1995). A substantive law is money-mandating only if it “can fairly

Miscellaneous No. 806 10
be interpreted as mandating compensation by the Federal Government for the damage

sustained.” United States v. Mitchell, 463 U.S. 206, 217 (1983).

A pay statute may serve as the basis for Tucker Act jurisdiction. For example, in

James v. Caldera, we stated that 37 U.S.C. § 204 “serves as a money-mandating

statute.” 159 F.3d 573, 581 (Fed. Cir. 1998). That is because section 204 provides that

“a member of a uniformed service who is on active duty” is “entitled to the basic pay of

the grade to which assigned.” In a given case, whether Tucker Act jurisdiction exists is

a question of law that we review without deference to the decision of the trial court. See

Core Concepts of Fla., Inc. v. United States, 327 F.3d 1331, 1334 (Fed. Cir. 2003);

Clark v. United States, 322 F.3d 1358, 1362 (Fed. Cir. 2003).

Mr. Scholl asserts two bases for Tucker Act jurisdiction in this case. First, he

points to 28 U.S.C. § 153(a), which is the pay statute for bankruptcy judges. He alleges

that, in the course of considering him for reappointment, the Third Circuit acted in a

manner that violated his right to due process under the Fifth Amendment to the

Constitution and deprived him of the pay mandated by section 153(a). Second, he

points to the Judicial Conference regulations. He asserts that he “performed the duties

of a bankruptcy judge according to the high standards of performance regularly met by

United States bankruptcy judges” and that, consequently, he was entitled to be

reappointed. He argues that the Third Circuit violated the regulations when it did not

reappoint him. We address section 153(a) first.

IV.

Section 153(a) clearly is a money-mandating statute, for it provides that a

bankruptcy judge “shall receive as full compensation for his services, a salary at an

Miscellaneous No. 806 11
annual rate that is equal to 92 percent of the salary of a judge of the district court of the

United States as determined pursuant [28 U.S.C. §] 135, to be paid at such times as the

Judicial Conference of the United States determines.” However, section 153(a)’s

money-mandating command only benefits an individual who actually holds the position

of bankruptcy judge. See Testan, 424 U.S. at 402 (“The established rule is that one is

not entitled to the benefit of a position until he has been duly appointed to it.”). Once

Mr. Scholl’s term as a bankruptcy judge ended, he no longer was entitled to the pay

mandated by section 153(a). See James, 159 F.3d at 581 (“Once James’ term of

enlistment ended, he no longer was entitled to pay under 37 U.S.C. § 204, because he

was no longer a service member.”).

Apparently recognizing the problem that he faces under section 153(a), Mr.

Scholl argues that his “non-reappointment [was] a form of discharge.” Scholl’s

Supplemental Br. on Jurisdiction at 8. This argument is without merit. It is true that a

claim of unlawful discharge may support Tucker Act jurisdiction. Testan, 424 U.S. at

402 (“[T]he employee is entitled to the emoluments of his position until he has been

legally disqualified.”); James, 159 F.3d at 581 (“If an enlisted member of the Armed

Services is wrongfully discharged before the end of his or her current term of enlistment,

the right to pay conferred by § 204 continues and serves as the basis for Tucker Act

jurisdiction.”). However, for two reasons this proposition does not help Mr. Scholl. First,

he was not discharged during his 14-year term. He served until the end of his term and

was fully paid for his services. Second, it is simply incorrect to say that non-

reappointment is a form of discharge. Non-reappointment and discharge are two

entirely different things.

Miscellaneous No. 806 12
 Because section 153(a) is a money-mandating statute, insofar as Mr. Scholl

bases his suit in the Court of Federal Claims on section 153(a), the court has

jurisdiction. See Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir. 2005) (en banc

in relevant part) (“If the court’s conclusion is that the Constitutional provision, statute, or

regulation meets the money-mandating test, the court shall declare that it has

jurisdiction over the cause, and shall then proceed with the case in the normal course.”).

At the same time, however, as just discussed, it is clear from the face of his complaint

that Mr. Scholl does not come within the reach of section 153(a). For that reason, the

Court of Federal Claims should have dismissed Mr. Scholl’s section 153(a) claim under

its Rule 12(b)(6) for failure to state a claim upon which relief could be granted. See id.

at 1175-76 (“Assuming that the Court of Federal Claims has taken jurisdiction over the

cause as a result of the initial determination that plaintiff’s cause rests on a money-

mandating source, the consequence of a ruling by the court on the merits, that plaintiff’s

case does not fit within the scope of the source, is simply this: plaintiff loses on the

merits for failing to state a claim on which relief can be granted.”).5

V.

We turn now to the issue of whether the Judicial Conference regulations support

Tucker Act jurisdiction in this case. As seen, the Court of Federal Claims held that

5
In Scholl IV, the Court of Federal Claims wrote: “Because the Due
Process Clause of the Fifth Amendment is not a money-mandating provision of the
Constitution, see Mullenberg v. United States, 857 F.2d 770, 773 (Fed. Cir. 1988), the
Court likely lacks jurisdiction to hear Count 1 of the Plaintiff’s Complaint.” 69 Fed. Cl. at
395. The court then ordered Mr. Scholl to show cause why Count 1 (based on the Due
Process Clause) should not be dismissed for lack of subject matter jurisdiction. Id. We
agree that because the Due Process Clause is not money-mandating, it may not
provide the basis for jurisdiction under the Tucker Act.

Miscellaneous No. 806 13
based on section 5.01(b) of the Judicial Conference regulations, “Judge Scholl had a

firm right to be reappointed as a judge, absent the showing that he had failed to perform

according to high standards.” Scholl I, 54 Fed. Cl. at 650.

In James, we stated that “[c]onceivably, Tucker Act jurisdiction . . . could exist if,

as matter of law, the regulations gave one in James’s circumstances ‘a firm right’ to

have his enlistment extended.” 159 F.3d at 582 (citing Austin v. United States, 206 Ct.

Cl. 719, 724 (1975)). Pointing to James, Mr. Scholl argues that the Court of Federal

Claims correctly held that section 5.01 of the Judicial Conference regulations provided

the basis for Tucker Act jurisdiction in this case. He contends that he “had a property

interest in his office of bankruptcy judge because he had a firm right of reappointment—

the Third Circuit was bound to follow Judicial Conference regulations.” Scholl’s Reply

Supplemental Br. on Jurisdiction at 1. Mr. Scholl’s contention is based on the premise

that wrongful non-reappointment is a form of wrongful discharge. Scholl’s Supplemental

Br. on Jurisdiction at 12, 16. Mr. Scholl reasons that “[t]he circumstances involving

plaintiff are similar to tenured professors at colleges and universities,” who serve under

a series of one-year contracts and “have the right of renewal of their contracts upon

expiration.” Id. at 17 (citing Perry v. Sindermann, 408 U.S. 593 (1972)).

The government disagrees. It argues that because section 5.01 did not give Mr.

Scholl a firm right or protected interest in reappointment, it could not form the basis for

Tucker Act jurisdiction over Mr. Scholl’s suit. It contends that “[f]or the administrative

convenience of the Courts of Appeals, the Judicial Conference has adopted procedural

guidelines for making reappointment decisions. However, these guidelines do not

create an enforceable right in reappointment.” Government’s Supplemental Br. on

Miscellaneous No. 806 14
Jurisdiction at 4. The government reasons that because “the decision whether to

reappoint a bankruptcy judge is within the sole discretion of the regional Court of

Appeals,” Mr. Scholl “has no legally protected interest in reappointment. A fortiori, he

cannot show a substantive right to money damages.” Id. at 2-3. We agree with the

government.6

As seen above, section 303 of the Federal Courts Improvement Act of 1996

provides that “[w]hen filling vacancies, the court of appeals may consider reappointing

incumbent bankruptcy judges under procedures prescribed by regulations issued by the

Judicial Conference of the United States.” As in effect in 2000, section 5.01 of the

Judicial Conference regulations stated that “the court of appeal shall take into

consideration the professional and career status of the incumbent.” The regulations

further stated that “[r]eappointment should not be denied unless the incumbent has

failed to perform the duties of bankruptcy judge according to the high standards of

performance regularly met by United States bankruptcy judges.”7

6
The government makes an additional argument with respect to the Judicial
Conference regulations. It contends that the regulations are not, in the words of the
Tucker Act, a “regulation of an executive department,” see 28 U.S.C. § 1491(a)(1), and
thus cannot provide the basis for jurisdiction under the Tucker Act. As seen, the Tucker
Act, inter alia, gives the Court of Federal Claims “jurisdiction to render judgment upon
any claim against the United States founded either upon the Constitution, or any Act of
Congress or any regulation of an executive department.” 28 U.S.C. § 1491(a)(1)
(emphasis added). We do not address this alternative argument by the government.
See Ruhrgas Ag v. Marathon Oil Co., 526 U.S. 574, 584 (1999) (stating that there is no
“jurisdictional hierarchy,” so that if there are two reasons to dismiss a case for lack of
jurisdiction, either reason, by itself, can serve as the basis for dismissing the case).
7
As mentioned above, in 2001, the Judicial Conference amended sections
5.01(b) and (c) by deleting a sentence to avoid creating a presumption of
reappointment, eliminating the requirement of an initial vote to determine whether the
incumbent appeared to merit reappointment, and providing that the court of appeals
could proceed directly to the public comment period. See Report of the Proceedings of

Miscellaneous No. 806 15
 We do not agree with the Court of Federal Claims that section 5.01 provided Mr.

Scholl with a firm right to be reappointed unless “he had failed to perform according to

high standards.” As in effect in 2000, section 5.01 simply provided circuit courts with

guidance in the process for the reappointment of incumbent bankruptcy judges. There

is nothing in the language of section 5.01 that indicates the provision was intended to

provide incumbent bankruptcy judges with the benefit of a firm right to reappointment.

Indeed, one of our sister circuits has recognized under similar circumstances that there

is no firm right to reappointment. See Schwartz v. Mayor’s Comm. on the Judiciary of

the City of N.Y., 816 F.2d 54, 55-57 (2d Cir. 1987) (holding that a New York City Family

Court judge had no constitutionally protected property right to reappointment after her

ten-year term expired and the mayor decided not to reappoint her, and explaining that

“the fact that many, or even most, incumbent judges have been reappointed cannot

operate to raise appellant’s ‘subjective expectation’ to a constitutionally protected right .

. . . Appellant has failed entirely to demonstrate any ‘mutually explicit understanding’

sufficient to establish a property right” (citing Perry, 408 U.S. at 601; Bd. of Regents of

State Colls. v. Roth, 408 U.S. 564, 577 (1972))); see also McMenemy v. City of

Rochester, 241 F.3d 279, 287 (2d Cir. 2001) (stating that “because McMenemy had no

legitimate claim of entitlement to—and therefore no property interest in—the position to

which he aspired, the procedures used to fill that job are immaterial to his due process

claim” and citing Schwartz, 816 F.2d at 57, as holding that “procedures requiring notice

and opportunity to be heard with respect to a decision on whether to reappoint a family

(Cont’d. . . .)

the Judicial Conference of the United States, March 14, 2001, available at
http://www.uscourts.gov/judconf/01-mar.pdf.

Miscellaneous No. 806 16
court judge did not create a property or liberty interest where there was no underlying

property or liberty interest in the job”).

Furthermore, assuming, arguendo, non-compliance with section 5.01, there is

nothing in the language of the section that can be accurately characterized as money-

mandating. See Mitchell, 463 U.S. at 216-17 (“[T]he claimant must demonstrate that

the source of substantive law he relies upon ‘can fairly be interpreted as mandating

compensation by the Federal Government for the damages sustained.’” (quoting

Testan, 424 U.S. at 400 (quoting Eastport S.S. Corp. v. United States, 178 Ct. Cl. 599,

607 (1967))); Samish Indian Nation v. United States, 419 F.3d 1355, 1366 (Fed. Cir.

2005) (“[T]his statutory language and structure is not reasonably read as demonstrating

congressional intent to establish a damage remedy under the [Indian Self-Determination

and Education Assistance Act] for non-payment of the underlying benefits, based on the

wrongful refusal to accord the Samish federal recognition between 1975 and 1996

(thereby precluding entry into a self-determination contract.”)). For the foregoing

reasons, we hold that the Court of Federal Claims erred as a matter of law in holding

that the Judicial Conference regulations support Tucker Act jurisdiction in this case.8

VI.

Having determined that the Court of Federal Claims erred in exercising

jurisdiction in this case, we have no difficulty concluding that the government is entitled

to issuance of a writ of mandamus. That is the case, we think, because the three

8
Mr. Scholl’s comparison of his circumstance to that of the untenured
professor in Perry v. Sindermann fails because, as a bankruptcy judge, he has no
“legitimate claim of entitlement” based on “policies and practices of the institution.” 408
U.S. at 602-03. As seen, neither section 153(a), the Judicial Conference Guidelines,
Due Process Clause case law, nor the Tucker Act provide such an entitlement or “firm
right.”

Miscellaneous No. 806 17
conditions required for mandamus set forth by Cheney have been met. See Cheney,

542 U.S. at 380-81 (citing Kerr, 426 U.S. at 403). First, the government has “no other

adequate means to attain the relief [that it] desires.” The principal relief that the

government desires in this case is preventing Mr. Scholl from obtaining discovery from

judges and employees of the United States Court of Appeals for the Third Circuit with

respect to the court’s decision not to reappoint him as a bankruptcy judge. Because the

Court of Federal Claims has (i) denied the government’s motion to dismiss, (ii) granted

Mr. Scholl’s motion to compel, and (iii) denied the government’s original and renewed

Motion for Certification of an Interlocutory Appeal, there is no way, other than

mandamus, that the government can obtain the relief it seeks. Second, we think the

government’s right to issuance of the writ is “clear and indisputable.” For the reasons

set forth above, the Court of Federal Claims clearly erred by not dismissing this case.

While we do not decide the power of appointment and judicial privilege issues raised by

the government, we see no point in subjecting the judges and employees of the Third

Circuit to discovery into the court’s decision-making process in the setting of a case that

clearly, as a matter of law, should be dismissed. Finally, we find, in our discretion, that

“the writ is appropriate under the circumstances.” Without ordering dismissal of Mr.

Scholl’s case through our mandamus power, the internal deliberations of the Third

Circuit could be subject to discovery. The government is correct that this would cause a

concrete and imminent harm that cannot be remedied after the fact.9

9
Our opinion should not be read to suggest that mandamus is available as
a remedy anytime the government believes that jurisdiction in the Court of Federal
Claims is lacking. The circumstances of this case—clear error in the exercise of
jurisdiction, combined with the specter of discovery into the deliberations of a federal
appeals court relating to the reappointment of a bankruptcy judge—are unique.

Miscellaneous No. 806 18
 CONCLUSION

For the foregoing reasons, we grant the government’s petition for a writ of

mandamus. We hereby direct the Court of Federal Claims to dismiss Mr. Scholl’s

complaint.

COSTS

Each party shall bear its own costs.

PETITION FOR WRIT OF MANDAMUS IS GRANTED.

Miscellaneous No. 806 19