The “Semper Exhaustion Rule” – A Tenth-Circuit Clarification on Enforcing Favorable Agency Decisions and the Non-delegability of Criminal Prosecution

Introduction

Case: Semper v. Bessent, No. 25-4022 (10th Cir. July 22, 2025)

Parties:

Plaintiff–Appellant: Jehan Semper, former IRS employee (pro se)
Defendants–Appellees: Secretary of the Treasury Scott Bessent, Internal Revenue Service officials, Ogden City & Police, Weber County & Sheriff, and related officers

Background in brief: Semper was terminated three months into her IRS employment. After prevailing partially in an internal Equal Employment Opportunity (EEO) proceeding, she received a Final Agency Decision (“FAD”) ordering reinstatement and back-pay. Believing the IRS was not complying, she sued in federal court, also asking the court to transmit various criminal allegations to prosecutors. The district court dismissed for failure to exhaust administrative remedies and because criminal statutes confer no private right of action. The Tenth Circuit affirmed.

Key Issues on Appeal:

Whether a complainant may file a civil enforcement action under Title VII before obtaining an EEOC determination that the agency is not complying with a favorable FAD.
Whether private litigants can rely on federal criminal statutes (18 U.S.C. §§ 241, 242, etc.) as an independent civil cause of action or compel a court to refer allegations for criminal prosecution.
The scope of a district court’s discretion to impose filing restrictions on prolific pro se litigants.

Summary of the Judgment

The Tenth Circuit unanimously affirmed dismissal. In doing so it:

Re-affirmed and clarified that enforcement suits seeking compliance with an FAD are premature unless the employee first exhausts the two-step regulatory process in 29 C.F.R. § 1614.504: (1) written notice of non-compliance to the agency EEO Director; (2) appeal to the EEOC for a non-compliance determination. This clarification is dubbed here the “Semper Exhaustion Rule.”
Held that 18 U.S.C. criminal provisions create no private civil cause of action and that federal courts lack authority to forward criminal complaints for prosecution on a plaintiff’s demand.
Found no abuse of discretion in the district court’s temporary restriction on Semper’s filings, emphasizing trial courts’ broad docket-management authority.

Analysis

A. Precedents Cited and Their Influence

The panel anchored its opinion in a line of Tenth-Circuit and Supreme Court authority:

Hickey v. Brennan, 969 F.3d 1113 (10th Cir. 2020) – Restated the mandatory nature of Part 1614 administrative steps for federal employees.
Timmons v. White, 314 F.3d 1229 (10th Cir. 2003) – Held an EEOC non-compliance finding is a jurisdictional prerequisite to enforcement litigation, directly applied here.
Freeman v. Raytheon Techs., 2024 WL 1928463 (10th Cir. 2024) – Confirmed sovereign immunity is waived for Title VII claims if procedures are followed, undercutting any waiver argument by Semper.
Henry v. Albuquerque Police Dep’t, 49 F. App’x 272 (10th Cir. 2002) & Tucker v. U.S. Ct. of Appeals, 815 F. App’x 292 (10th Cir. 2020) – Authorities for the “no private right in criminal statutes” proposition.
Jacobsen v. Deseret Book Co., 287 F.3d 936 (10th Cir. 2002) – Equated Rule 12(b)(6) and 12(c) standards, enabling unified dismissal analysis.

Collectively these cases framed the doctrinal baseline: strict administrative exhaustion, no implied civil remedies in criminal laws, and broad managerial latitude for district courts.

B. Legal Reasoning

Jurisdiction & Exhaustion. Title VII suits by federal employees are conditioned on exhaustion of Part 1614 procedures. Section 1614.504 establishes a two-tiered compliance mechanism. Semper completed only the first tier (agency notice) but never sought an EEOC ruling. The panel deemed this failure fatal and jurisdictional under Timmons.
Statutory Silence on Private Rights. Stressing the separation of powers, the court reiterated that criminal statutes are designed for executive enforcement. In the absence of explicit text creating a civil remedy, courts cannot imply one (Cannon v. Univ. of Chicago factors absent). Thus §§ 241, 242, etc., cannot ground civil relief.
Referral for Prosecution. Prosecutorial discretion rests with the Executive. Article III courts cannot compel the Department of Justice or local prosecutors to act, absent a specific statutory mandate – none exists here. The panel declined to create such a duty.
Docket Management. The temporary filing moratorium was upheld under the district court’s inherent power, reviewed for abuse of discretion. The panel found none, noting the restriction was limited, reasoned, and revisitable.

C. Impact of the Decision

The precedent, though unpublished, carries persuasive weight under Fed. R. App. P. 32.1. Its practical effects include:

Sharper Roadmap for Federal Employees. Claimants must now treat an EEOC non-compliance appeal as an indispensable checkpoint before suing. Counsel will likely build internal calendars ensuring compliance with § 1614.504 timelines.
Litigation Screening. District courts within the Tenth Circuit can cite Semper to summarily dismiss premature enforcement suits, reducing judicial load.
Pro Se Guidance. The opinion functions as a didactic tool for self-represented litigants, indicating exactly where administrative steps must resume.
Criminal-Civil Boundary Reinforced. Plaintiffs frequently invoke criminal chapters (e.g., “18 U.S.C. fraud”) in civil complaints. Semper arms defendants with authority to strike such claims at the pleadings stage.
Docket-Control Precedent. The case consolidates 10th-Circuit approval for short-term filing bans on voluminous self-represented submissions.

Complex Concepts Simplified

Final Agency Decision (FAD)

The last formal ruling issued by a federal agency’s EEO office after investigating an employee’s discrimination complaint. It is binding on the agency unless overturned on appeal.

Administrative Exhaustion

Rule requiring a complainant to use and finish all internal or administrative review avenues before seeking court intervention.

29 C.F.R. § 1614.504 Compliance Mechanism

Give written notice to the agency EEO Director within 30 days of perceived non-compliance.
If unsatisfied, appeal to the EEOC within 35 days (or 30 days after a formal “non-compliance” finding) to obtain a binding EEOC determination.

Private Right of Action

The legal ability of a private person to sue under a statute. Criminal laws rarely provide one unless Congress expressly says so.

Prosecutorial Discretion

The Executive branch’s exclusive authority to decide whether to bring criminal charges.

Conclusion

Semper v. Bessent reinforces three core principles: (1) federal employees must fully exhaust the EEOC non-compliance process before asking a court to enforce a favorable FAD; (2) criminal statutes do not convert into civil causes of action nor empower courts to channel criminal referrals; and (3) trial courts may impose reasonable filing limitations to steward judicial resources. While styled as a non-precedential order, Semper is poised to shape pleadings practice and administrative-law counseling across the Tenth Circuit—and likely beyond—by providing a crisp, authoritative template for navigating (and challenging) agency compliance with discrimination rulings.