Scholl v. United States

61 Fed. Cl. 322, 52 Collier Bankr. Cas. 2d 1191, 2004 U.S. Claims LEXIS 182, 43 Bankr. Ct. Dec. (CRR) 113, 2004 WL 1709047
CourtUnited States Court of Federal Claims
DecidedJune 23, 2004
DocketNo. 00-737C
StatusPublished
Cited by5 cases

This text of 61 Fed. Cl. 322 (Scholl v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Scholl v. United States, 61 Fed. Cl. 322, 52 Collier Bankr. Cas. 2d 1191, 2004 U.S. Claims LEXIS 182, 43 Bankr. Ct. Dec. (CRR) 113, 2004 WL 1709047 (uscfc 2004).

Opinion

OPINION

BASKIR, Judge.

On May 27, 2003, the Defendant filed a renewed Motion to Dismiss for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC). In its motion, the Defendant argues that the enactment of the Civil Service Reform Act of 1978, Pub.L. 95-454, 92 Stat. 1111 (CSRA), eliminated this Court’s authority to hear a back pay claim from the Plaintiff, Bankruptcy Judge David Scholl, an officer of the Judicial Branch. Following the filing of the second motion to dismiss by the Government, we held a hearing and directed the parties to address a number of issues raised by that motion. Because we find that the CSRA does not foreclose judicial review of Judge Scholl’s claims we deny Defendant’s renewed Motion to Dismiss.

Introduction

In reaching a decision on Defendant’s motion, we must accept the Plaintiffs allegations as true and draw all reasonable inferences in Plaintiffs favor. See, e.g., Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995) (citing Scheuer v. Rhodes, 416 U.S. 232, 236-7, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). A motion to dismiss for lack of subject matter jurisdiction may be filed at any time. See RCFC 12(h)(3); George W. Kane, Inc. v. United States, 26 Cl.Ct. 655, 658 (1992). But the Defendant’s renewed motion came as a surprise as it was the second motion to dismiss filed by the Defendant in this action. We rejected Defendant’s first motion to dismiss for failure to state a claim upon which relief could be granted in our opinion of December 4, 2002. See Scholl v. United States, 54 Fed.Cl. 640 (2002). We concluded that the Court has jurisdiction over the Plaintiffs back pay claim. Id. at 643-45.

[323]*323Judge Scholl contends he was improperly-denied his mandatory reappointment to a second 14-year term as a bankruptcy judge, in violation of statutory and regulatory provisions governing reappointment. He also challenges the validity of the procedures used in determining his reappointment, a somewhat more problematic claim which the parties and the Court have yet to address.

Discussion

Our earlier opinion discussed jurisdiction at length, but for the convenience of the reader we briefly revisit that subject. See also Scholl, 54 Fed.Cl. at 643-45. As a court of limited jurisdiction, this Court may only hear claims brought against the Government to the extent that Congress has waived sovereign immunity. See, e.g., United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). The Tucker Act, this Court’s primary jurisdictional statute, states that a suit may be brought if it is:

founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.

28 U.S.C. § 1491(a)(1). Because the Tucker Act standing alone does not create a substantive right of recovery for money damages a plaintiff must also demonstrate a separate, substantive right pursuant to a money mandating provision. See, e.g., United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980); United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). The party asserting jurisdiction bears the burden of proof. See Rohmann v. United States, 25 Cl.Ct. 274, 277 (1992).

Historically, this Court’s Tucker Act jurisdiction extended to Federal civilian pay claims because salary specifying statutes are considered money mandating provisions. See United States v. Fausto, 484 U.S. 439, 453-54, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988); United States v. Wickersham, 201 U.S. 390, 400, 26 S.Ct. 469, 50 L.Ed. 798 (1906). Plaintiffs monetary claim seeks his salary, both retroactively and prospectively. The statute providing compensation for bankruptcy judges, 28 U.S.C. § 153, acts as the necessary money mandating provision and meets the “Act of Congress” prong of the Tucker Act. The Back Pay Act, 5 U.S.C. § 5596, affords this Court with the authority to award back pay for the period prior to the date of judgment. While we may not award pay for future years, a plaintiff may file successive back pay claims.

In our earlier opinion, we held that the then applicable statutes and regulations governing the appointment and reappointment of bankruptcy judges gave Judge Scholl an absolute right to reappointment, subject to a condition subsequent — that he had “failed to perform the duties of a bankruptcy judge according to the high standards of performance regularly met by United States bankruptcy judges.” Scholl, 54 Fed.Cl. at 644-51. We thus rejected the Government’s thesis that United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976), barred this action. Id.

In its new motion, the Government argues that the enactment of the CSRA eliminated this Court’s authority to hear Judge Scholl’s back pay claim. Def.’s Brief (May 27, 2003) at 4-5. The CRSA covers the civil service, which includes judicial appointees such as Judge Scholl. See 5 U.S.C. § 2101. The Defendant’s position relies upon the Supreme Court’s decision in United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). The Government argues that Fausto’s holding extends to personnel of the Judicial Branch just as it does to personnel of the Executive Branch.

We are not prepared to accept so sweeping a proposition without seeing whether the analysis the Supreme Court applied leads to the same conclusion as respects Judicial Branch personnel. Fausto held that the CSRA precluded Mr. Fausto, a nonpreference employee in the excepted service, from seeking judicial review for an adverse personnel decision. Id. The issue presented by Fausto for our case is whether the CSRA established so comprehensive a scheme for the review of adverse personnel actions for judicial officers, such as Judge Scholl, as to preclude jurisdiction in this Court under the statute providing compensation for bankrupt[324]*324cy judges, 28 U.S.C. § 153, and the Back Pay Act, 5 U.S.C.

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Bluebook (online)
61 Fed. Cl. 322, 52 Collier Bankr. Cas. 2d 1191, 2004 U.S. Claims LEXIS 182, 43 Bankr. Ct. Dec. (CRR) 113, 2004 WL 1709047, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scholl-v-united-states-uscfc-2004.