## United States Court of Appeals for the Federal Circuit

Miscellaneous No.806

IN RE UNITED STATES, Petitioner.

Gregory G. Katsas , Deputy Assistant Attorney G eneral, 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 Philadelph ia, Pennsylvania, argued for respondent.

On Petition for a Writ of Mandamus to t he United States Cour t 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 F ederal 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, pur portedly under the Tucker Act, 28 U.S.C. § 1491(a)(1), by David A. Scholl, a former bank ruptcy 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 bankrupt cy judge by the United States Court of

1 Section 1651(a) provides: “The Supr eme Court and all courts established by Act of Congress may issue all writs nec essary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”Appeals for the Third Circuit wa s in v i olation of his right to due process und er the Fifth Amendment to the Constitution a nd certain regulations relati ng to the reappointment of bankruptcy judges that have been promulgated by the Judicial Conference of the United States. Because the Court of Federal Claims shou ld not hav e exercis ed j u risdiction over Mr. Scholl’s suit and because th e requirements for the writ of mandamus are met, we grant the government’s petiti on 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 . . . kn own as the bankruptcy court for that district.” 28 U.S.C. § 151. In each di stric t, bankruptcy judges are appoint ed by a majority of the active judges of the circuit court of appeals in which the dis t rict is loc a ted. Id. § 152(a)(1). Each appointment is fo r a term of fourteen years. Id. Section 303 of the Federal Court’s Improv ement Act of 1996, Pub. L. No . 104-317, § 303, 110 Stat. 3852 (1996), codified as a note to section 152, prov ides that “[w]hen filling vac ancies, the court of appeals may consider reappointi ng incumbent bankruptcy judges under procedures prescribed by regula t i ons issued by the J udicial Conference of the United States.” The Judic i al Confer enc e of the United States (the “Judicial Conference”) “is the statutorily created body of federal judges that establishes policy for the administration of the Judic i al Branch.” W illiams v

. United States , 240 F.3d 1019, 1061 n.24 (Fed. Cir. 2001) (citing 28 U.S.C. § 331). The Judici al Conference is composed of the Chief

Miscellaneous No. 806 2Justice of the United St ates, “the chief judge of each j udicial cir c uit, the chief judge of the Court of International Tr ade, and a district judge from each judicial c i rcuit.” 28 U.S.C. § 331. The Third Circuit generally fo llows the Judicial Co nference regulations, although it has never formally adopted them. In 2000, the year in which Mr. Scholl wa s de nied reappointment, sections 5.01(b) and (c) of Chapter 5 of the Judicial Conference regulat ions provided: (b) The court of appeals will decide whether or not to reappoint t he incumbent judge. In making this decis ion, the court of appeals shall take into consideration the professional and career st atus of the inc u mbent. Reappoint ment should not be denied unless t he 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 determi nes by majority vote of the active judges of that court that the incumbent bankruptcy judge appears to merit reappointm ent, the court shall follow the procedures set forth in fo llowing sections 5.02 and 5.03. Section 5.02 of the regulations provi ded that, if the court of appeals determined that an inc u mbent bankrupt cy judge who was willing to be reappointed appeared to merit reappointment, the circ uit exec utive of the court would cause to be published a public notice stating that t he court was considering t he judge f o r reappointment and inviting comments from members of the bar and the public. Se ction 5.03 of the regulations dealt with the process by whic h the court of appeals would decide on the reappointm ent after comments from the bar and public were reviewed. 2

2 In 2001, the Judic i al C onferenc e amended section 5. 01(b) of Ch apter 5 of the regulation by deleting the sentence that began: “R eappointment should not be denied unless.” Thi s amendment was made in order to avoid the creation of a presumption of reappointment. See Report of the Proceedings of t h e Judic i a l Conferenc e of the United States , March 14, 2001, av aila ble at

Miscellaneous No. 806 3II. On August 27, 1986, Mr. Scholl was appointed to the Bankruptc y Court for the Eastern District of P ennsylva nia by the Court of Appeals for the Third Circuit. His fourteen-year term of appointm ent ended on August 26, 2000. In a letter addressed to the Chief Judge of the Third Cir cuit, dated December 29, 1999, Mr. Scholl expressed his “willingness to accept reappoi ntment.” A preliminary vote of the active judges of the Third Circuit was held, and Mr. Scholl receiv ed enough votes to have his reappointment proceed through the public notic e and comment pr ocess. The process involv ed notices in local newspapers seeking comments on the proposed r eappointment, as well as 1,165 questionnaires sent to attorneys and bankruptcy trustees who had appeared before Mr. Scholl during hi s tenure as a judge. Approxim ately 300 of the questionnaires were returned to the court of appeals. Mr. Scholl was provided with c opies of al l comments and a detailed chart analyzing the responses to t he questionnaires, to which he submitt ed a detailed respons e. Upon r e viewing the comments, responses to the questionn aires, and Mr. Scholl’s response, the ac tive 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 bankrupt cy judge until his ter m ended on August 26, 2000.

(Cont’d. . . .) http://www.uscourts.gov/judconf/01-mar.pdf . The Judicia l Confe r ence also amended the regulations to elim inate the requirement in section 5. 01(c) that the court of appeals take an initial vote to determine whet her the incumbent appeared to merit reappointm ent, thereby providing that the cour t of appeals could proceed directly to the public comment period. Id.

Miscellaneous No. 806 4III. After the expiration of hi s term, Mr. Scholl brought the present action in the Court of Federal Claims, pur portedly under the Tucker Act. In Count I of his complaint, he alleges, that as a bankrupt cy judge, he had a “property i n terest in continued employment that was taken in violation of the Due Process Claus e of the Fifth Amendment to the U.S. Constitu tion.” Compl. ¶ 19. In C ount 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 J udicial Conf erence regulations support Tucker Ac t Jurisdiction in the Court of Federal Claims. In due course, the gov ernment moved, purs uant to Rule 12(b)(1) of the Rules of the Court of Federal Claims, to have Mr. Schol l’s suit dismissed for lack of jurisdictio n

. 3 The government argued that the case should be dis m issed for lack of subject matter jurisdiction under the Tucker Act becaus e Mr. Scholl did n o t have a firm right to reappointm ent under a money mandating statute, regulat ion of an executive department, or Constit u tional prov ision. The court rejected th is contention in Sc holl I , 54 Fed. Cl. at 643-44, 650. The court ru led that under the applicable Judic i a l Conferenc e regulations, “J udge Scholl had a firm right to be reappointed as a [bankruptcy] judge, absent t he showing that he had failed to perform according to high standards.” The gov ernment made a renewed mo tion to dism iss for lack of subject

3 The gov ernment also moved to have Mr. Scholl’s suit dismissed for failur e to state a claim upon which relief may be grant ed pursuant to Rule 12(b)(6). Scholl v

. United States , 54 Fed. Cl. 640, 643 (2002) (“Scholl I ”).

Miscellaneous No. 806 5matter jurisdiction, which was de nied in Sch o ll v. United States , 61 Fed. Cl. 322 (2004) (“Scholl II ”)

. Four months later, the governm ent file d a “Motion to Certify Interlocutory Appea l and to Stay Further Proceedings. ” In its motion, the gover nment argued that whethe r Mr. Scholl states a claim when he seek s back pay for not being reappointed an d whether the Court of Federal Claims possesses jurisdiction to review the Third Circuit’s decision no t to reappoint him ar e controllin g questions of law, and that if the decision of the trial court is reversed with respect to either issue, dismissal of the suit w ould result

. Interlocutory Appeal Mot. at 3-4, 9-11. The government further argued that whether a “firm right” to reappointment ex ist s is an iss ue of first impression upon whic h there are substantial grounds for a diffe rence of opinion. Id. at 6-8. Fina lly, the government asserted that the trial court s hould grant a discretionary stay because “discov e ry in this case likely would involve a sensitive and pot entially burdensome inquiry into the basis for the deci s ion of the Third Circuit judges . . . .” Id. at 11-12.

The Court of Feder al Claims determi ned that the government’s motion was untimely and that, in any ev ent, the government had failed to satisfy the requirements for an interlocutory appeal. C ons equently, the court denied c e rt ification for int e rlocutory appeal in Scholl v. United States , 68 Fed. Cl. 58 (2005) (“Scholl III ”). Mr. S c holl then moved to compel the government’s answer to an interrogatory seeking the name and nature of the testimony of eac h witness that the government intended to call at trial. The gov ernment’s response opposed Mr. Scholl’ s motion to compel and als o presented a “Renewed Motion for Certificati on of an Interlocutory Appeal.”

Miscellaneous No. 806 6In its response, the gover nment stated that “[i]f Mr. Scholl intends to challenge the merits of the decision not to appoint” him, “the likely witness e s would be one or more Third Circu it jud ges.” Government’s Opp’n to Mot. to Compel Disc. at 3. The government also stated that the decision whether to r eappoint a bankruptcy judge “is sufficiently judicial in nature to warrant the assertion of t he judicial function privilege.” 4
Id. at 7. The government fu rther stated that communicati ons between attorneys working for the Third Circuit and the T h ird Circuit judges were protected by attorney-client privile ge. I d

. at 7-10. Finally, in s upport for its Renewed Motion f o r Certification of an Interlocutory Appeal, the government, among other arguments, assert ed that “[b]asic separation- of-powers principles ” prevent an Article I court (t he Court of Federal Claims) from reviewing a Judicial Br anch appointment decision. Id. at 16. The Court of Federal Claims, inter alia , (i) granted the mo tion 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 cour t all documents in its privilege log for in

camera review, (iii) iss ued an order to show cause why the Due Process claim in Count I should not be dism issed for lack of subject matter jurisdiction, and (iv) denied the Renewed Motion for Certificatio n of an Interlocutory Appeal for the same reasons that it

4 “Judges, like Presidents, depend upo n open and candid discourse wit h their colleagues and staff to promote the effe ctive discharge of thei r duties.” In re Certain Complaints Under Invest igation by an Investigating Comm. , 783 F.2d 1488, 1519 (11th Cir. 1986) (“Hastings ”), quoted in In re Gra n d Jury , 821 F.2d 946, 957 (3rd Cir. 1987). “[T]here exists a [qualified] privilege . . . protecting confidentia l 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. o f Ill. , 956 F.2d 647, 650 (7th Cir. 1992). “The judici al privilege is grounded in the need for confidentiality in the effectiv e discharge of the f ederal judge’s dut ies. In the main, the privilege can extend only to communications am ong judges and others relating to officia l judicial bus iness such as, for example, the framing and researching of opinions, orders, and rulings .” Hastings , 783 F.2d at 1520.

Miscellaneous No. 806 7had denied the original motion. Scholl v. United States , 69 Fed. Cl. 393 (2005) (“Scholl
IV ”). The government then petit ioned 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.

DISCUSSI ON
I. A writ of mandamus is a “‘drastic and ex tr aordinary’ r e medy ‘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 Suprem e Court has explained that “[t]he traditiona l use of the writ in aid of appellat e jurisdiction both at common law and in the federal courts ha s been to confine the court against whic h 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 wr it of mandamus. First, “the party seeking issuanc e of the wr it must have no other adequate means to attain the relief he desires.” Id. (quoting Kerr v. U.S. Dist. C ourt for the N. Dist. of Cal. , 426 U.S. 394, 403 (1976)). Sec ond, “the petitioner must sati sfy the burden of showing that his right to issuance of the wr it is ‘c lear and indis putable.’” I d

. at 381 (quoting Kerr , 426 U.S. at 403). Third, “even if the firs t two prerequis i tes have been met, the issuing court, in the exercise of its di scretion, must be satisfied that the writ is appropriate under the circumstances.” Id. (citing Kerr , 426 U.S. at 403).

Miscellaneous No. 806 8II. In its petition for mandamus, the governm ent argues that the Court of Federal Claims “made an extraordi nary claim of power to review” the Third Circuit’s decision no t 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 judicia l officers wit h a private right of ac tion in the [Court of F ederal Claims]. Review of the Third Circuit’s appointment decisions by an Article I court would raise serious Appointments Claus e and separ ation-of-pow ers problems, which by themselves warrant immediate mandamus review. Id. The government further a sserts 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 containi ng Cir cuit Judges’ internal deliberations and ot her privileged and c onfidential communications relating to the appointment decision at issue.” Id. In view of the trial cour t’s denials of certification for interlocutory appeal a nd its order compelling disc overy, the government concludes that no remedy other than mandamus is ava ilable 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 t hat t he gov ernment has “failed to meet the requirement s of the drastic remedy of mandamus and show that the circumstances here ar e extraordinary.” Scholl’s Ans w er t o Pet. at 10 . According to Mr. Scholl, “the trial court did not us urp power; its decisions are not cl early and indisputa b ly inc o rrect; relief by appeal from final judgment is available . . . .” Id.

Miscellaneous No. 806 9After the mandamus petition and Mr. Scho ll’s response were filed, we ask e d the parties to brief, and we heard oral argum ent on, the question of the jurisdiction of the Court of Federal Claims under t he Tucker Act. We now grant the government’s petition for mandamus. We do so bec ause the Court of Federal Claims erred by exercis i ng jurisdiction in this cas e and bec ause t he r equirement s for mandamus have been met. We begin with the matter of jurisdiction.
III. In relevant part, the Tucker Act gives the Court of F ederal Claim s “jurisdiction to render judgment upon any claim against the Un ited States founded either upon the Constitution, or any A c t of Congress or any regulation of an exec utive depar tment, . . . or for liquidated or unliquidated dam ages in cases not soundin g in tor t.” 28 U.S.C. § 1491(a)(1). Howev e r, the Tucker Act “is itself only a jurisdictional statute; it does not create any substantive right enf orceable against the United St ates for money damages.” United States v. Testan , 424 U.S. 392, 398 (1976). Thus, “i n 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 th at a Tucker Act plaintiff must assert a claim under a separate money-mandating c onstitutional provis ion, statute, or regulation, the violation of whic h supports a claim for damages against t he United States. S e e 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 s ubstantive law is money-mandating only if it “can fairly

Miscellaneous No. 806 10be interpreted as mandating com pensation by the Federal Government for the damag e 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. § 20 4 “serves as a money-mandating statute.” 159 F.3d 573, 581 (Fed. Cir. 1998). That is bec ause s e ction 204 provides that “a member of a unifor m ed servic e who is on ac tive duty” is “entitled to the basic pay of the grade t o which as signed.” In a giv en case , whether Tucker Act ju risdiction exists is a question of law that we revi ew without def erence to the dec is ion of the trial court. See Core Conc epts 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 tw o bases for Tucker Ac t 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 fo r reappointment, the Thir d Circuit acted in a manner that violated his ri ght to due pr ocess under t he Fifth Amendment to the Constitution and deprived him of the pay mandated by section 153(a). Second, he points to the Judicial Conferenc e regulations. He asserts that he “performed the duties of a bankruptcy judge according to the high standar ds of per formance regularly met by United States bankruptcy judges” and that, consequently, he was entit led to be reappointed. He argues that t he Third Cir cuit violated the regulations when it did not reappoint him. We address section 153(a) first.
IV. Section 153(a) clearly is a money-manda ting statute, for it provides that a bankruptcy judge “shall receive as full c o mpensat ion for his s e rvices, a salary at a n

Miscellaneous No. 806 11annual rate that is equal to 92 perc ent of the salary of a judge of the district court of the United States as determined purs uant [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 benefit s an indiv i dual who act ually holds the position of bankruptcy judge. See Testan , 424 U.S. at 402 (“The establis hed 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 bankrupt cy judge ended, he no longer was entitled to the pa y mandated by section 153(a). See James , 159 F.3d at 581 (“Once James’ term of enlistment ended, he no longer wa s entitled to pay under 37 U.S.C. § 204, because he was no longer a service member.”). Apparently recognizing the problem t hat 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 disc harge may support Tucker Act jurisdiction. Testan , 424 U.S. at 402 (“[T]he employee is entitled to the emol uments of his position until he has been legally dis qualified.”); James , 159 F.3d at 581 (“If an enlisted member of the Armed Services is wrongfully dischar ged 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 A c t 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 nonreappointm ent is a form of discharge. Non-reappointment and dischar ge are two entirely different things.

Miscellaneous No. 806 12Because s e ction 153(a) is a money-mand ating statute, insofar as Mr. Scholl bases his suit in the Court of Federal Claims on section 153(a), the court has jurisdiction. See F i sher v. United States , 402 F.3d 1167, 1173 (Fed. Cir. 2005) (en ban c in relevant part) (“If the court’s conclus i on is t hat the Constitutional pr ovis ion, statute, or regulation meets the money-m andating t e st, the court shall declare t hat it has jurisdiction over the cause, and shall then pr oc eed with the case in the normal course.”). At the same time, however, as just discuss ed, 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 dismis sed Mr. Scholl’s section 153(a) claim unde r its Rule 12(b)(6) for failure to state a c l aim upon which relief co uld be granted. See id. at 1175-76 (“Assuming that the C ourt of Federal Claims has taken jurisdiction over the cause as a result of the in itial determination that plaint iff’s cause rests on a money

mandating source, the consequence of a ruling by the court on the meri ts, that plaintiff’s case does not fit within the sc ope of the sour ce, is simply this: plaintiff loses on the merits for failing to state a clai m on which relief can be granted.”). 5
V. We turn now to the is sue of whether t he Judicial Conf erence regulations support Tucker Act jurisdiction in this c a se. As s een, the Court of Federal Claims held that

5 In Scholl IV , the Court of Federal Clai m s wrote: “Because t he 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 Pl aintiff’s Complain t.” 6 9 Fed. Cl. at 395. T he c ourt then ordered Mr. Scholl to s how c ause why Count 1 (based on the Due Process Clause) should not be dismissed for lack of subject matter jurisdiction. Id. W e agree that becaus e the Due Process Clause is not money-mandating, it may not provide the basis for jurisdiction under the Tucker Act.

Miscellaneous No. 806 13based on section 5.01(b) of the Judicial C onference 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 ju r i sdiction . . . could ex ist 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 Au stin v. United States , 206 Ct. Cl. 719, 724 (1975)). Pointing to James , Mr. Scholl argues that the Court of Federal Claims correctly held that sect ion 5.01 of t he Judicial Conf erenc e regulations provided the basis for Tucker Act jurisdiction in this case. He contends that he “had a property interest in his office of bankruptc y judge be cause he had a firm ri ght of reappointment— the Third Circuit was bound to follow Judic i al Conference regulat ions.” 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 r easons that “[t]he circumstances involv ing plaintiff are similar to tenured professors at colleges and univ e rsities,” who s e rve under a series of one-year contracts and “have t he right of renewa l of their contracts upon expiration.” Id. at 17 (citing Perry v. Sindermann , 408 U.S. 593 (1972)). The government disagrees. It argues that because sec t ion 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 sui t. It contends that “[f]o r the administrative convenienc e of the Courts of Appeals, the J udicial Conf erence has adopted procedural guidelines for making reappoint ment decisions . However, these guidelines do not create an enforceable ri ght in reappointm ent.” Govern ment’s Supplemental Br. on

Miscellaneous No. 806 14Jurisdiction at 4. The government reas ons that because “the decision whether to reappoint a bankrupt cy judge is wit hin the sole dis c retion of the regional Co urt of Appeals,” Mr. Scholl “has no legally protec ted interest in reappointment. A fortiori , h e cannot show a substantive ri ght to money damages.” Id. at 2-3. We agree with the government. 6 As seen above, section 303 of the F ederal Courts Improv ement Act of 1996 provides th at “[w]hen filling vac a ncies, t he court of ap peals may consider re appointing incumbent bankruptcy judges under procedures prescribed by regulations iss u ed by the Judicial Conference of the United States.” As in effe ct in 2000, section 5.01 of the Judicial Conference regulations stated t hat “the court of appeal shall take into consideration the professional and career status of the in cumbent.” The regulations further stated that “[r]eappo intment should not be denied unles s the incumbent has failed to perform the duties of bankruptcy judge according to the high st andards of performance regularly met by Un ited States bankruptcy judges.” 7

6 The gov ernment makes an additional ar gument with re spect to the Judic i a l Conferenc e regulations. It c ontends that the regulations ar e not, in the w o rds 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 jurisdicti on under the Tucker Act. As seen, the Tucker Act, inter alia, gives t he Court of Federal Claims “juri s diction to render judgment upon any claim against the United States founded ei ther upon the Constitu tion, or any Act of Congress or any regulat ion of an executive department.” 28 U.S.C. § 1491(a)(1) (emphasis added). We do not address this al ternat ive argument by the government. See Ruhrgas Ag v. M a rathon Oil Co. , 526 U.S. 574, 584 (1999) ( s tating 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 se rve as the basis for dismissing the case).

7 As mentioned above, in 2001, the J udicial Conferenc e amended sections 5.01(b) and (c) by deleting a sentence to avoid creat ing a presumption of reappointm ent, eliminating the requirement of an initial vote to determine whether th e 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 15We do not agree with the Cour t 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, sec t ion 5.01 simply provided circuit courts with guidance in the process for the reappoint ment of incumbent bankruptcy judges. There is nothing in the language of se ction 5.01 that indicat e s t he provision was intended to provide inc u mbent bankruptcy ju dges with the benefit of a firm right to reappointment. Indeed, one of our s i s t er circuits has rec ognized under similar c i rc umstances that there is no firm right to reappointment . See Schwartz v. Mayor’s Co mm. on the Judiciary of the City of N.Y. , 816 F.2d 54, 55-57 (2d Cir. 1987) (hold i ng that a New York City Family Court judge had no c onstituti onally protected proper ty right to reappointment after her ten-year term expired and the m a yor decided not to reappoint her, and explaining that “the fact that many, or even most, incu mbent judges have been reappo inted cannot operate to raise appellant ’s ‘subjective expectation’ to a constitutionally protected right . . . . Appellant has failed entirely to demons trate any ‘mutually ex plic it 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 c l aim of entitlement to—and ther ef ore no pr operty 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 Judic i al Conference of t he United States, Ma rch 14, 2001, available at http://www.uscourts.gov/judconf/01-mar.pdf.

Miscellaneous No. 806 16court judge did not create a pro perty or liberty interest where there was no underlying property or liberty interest in the job”). Furthermore, assuming, arguendo , non-compliance with sect ion 5.01, there is nothing in t he language of the section that c an be accurate ly characterized as moneymandating. See Mitc hell , 463 U.S. at 216-17 (“[T]he clai mant must demonstrate that the source of substantive la w he relies upon ‘can fairly be inter p reted as mandating compensation by the Federal Government for the damages sust ained.’” (quoting Testan , 424 U.S. at 400 (quoting Eastpor t 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 r easonab ly read as demonstrating congressional intent to est ablish a damage remedy under the [Indian Self-Determination and Educ ation Ass i stance Act] for non-payment of the underlying b enefits, based on the wrongful refusal to accord the Samish federal recognition bet ween 1975 and 199 6 (thereby precluding entry into a self-determination contra ct.” )) . For the foregoing reasons, we hold that the Cour t of Federal Claims erred as a m a tter of law in ho lding that the Judicial Conf erence regulations su pport Tucker Act jurisdiction in this case. 8
V I

. Having determined that the Court of Federal Claims erred in exercising jurisdiction in this case, we hav e no difficulty concludin g that the government is entitled to issuanc e of a writ of mandamus. That is the case, we think, because the three

8 Mr. Scholl’s comparison of his circ umstance to that of the untenured professor in Perry v. Sindermann fails because, as a bank rupt cy judge, he has no “legitimate claim of entitlement” based on “polic ies and practices of t he institution.” 408 U.S. at 602-03. As seen, nei ther section 153(a), the Judi cial Conference Guidelines, Due Process Clause case law, nor the Tucker Act provide su ch an entitlem ent or “firm right.”

Miscellaneous No. 806 17conditions required for mandam us set forth by Chen ey have been met. See Cheney , 542 U.S. at 380-81 (citing Kerr , 426 U.S. at 403). First, t he government has “no other adequate means to attain the relief [that it] desires.” The princi pal relief that the government desires in this case is preventin g Mr. Scholl from obtaining disc o v ery from judges and employees of the Un ited States Court of Appeals for the Third Circuit with respect to the court’s decision not to reappoi nt him as a bankruptc y judge. Because the Court of Federal Claims has (i ) denied the government’s moti on to dismiss, (ii) granted Mr. Scholl’s motion to compel, and (iii) de nied the gov ernment’s or iginal and renewed Motion for Certification of an Interlocutor y Appeal, there is no way, other than mandamus, that the government can obtain the relief it see ks. Second, we think the government’s right to issuance of the writ is “clear and indi sputable.” For the reasons set forth above, the Court of Federal Claims clearly erred by not dismissing this cas e

. While we do not decide the power of appointment and judicial privilege iss ues raised by the government, we see no point in subjecti ng the judges and employees of the Third Circuit to discovery int o the court’s decis ion- making process in the setting of a case that clearly, as a matter of law, should be dism issed. Finally, we find, in our discretion, that “the writ is appropriat e under the circumstances.” Without ordering dis m issal of Mr. Scholl’s case through our mandamus power, t he internal deliberat ions of the Third Circuit could be subject to discovery. The gov ernment 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 a s a remedy anytime the governm ent believes that jurisdicti on in t h e Court of Federal Claims is lacking. T he circumstances of th is case—clear error in the exercis e of jurisdiction, combined with the specter of di scovery into the deliber ations of a federal appeals court relating to the reappointm ent of a bankruptcy judge—are unique.

Miscellaneous No. 806 18CONCLUS ION For the foregoing reasons, we grant th e government’s petiti on 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 MA NDAMUS IS GRANTED.

Miscellaneous No. 806 19