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

43
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

44
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