UNITED STATES OF AMERICA, PETITIONER V. JOSEPH A. FAUSTO No. 86-595 In the Supreme Court of the United States October Term, 1987 On Writ of Certiorari to the United States Court of Appeals for the Federal Circuit Reply Brief for the United States The amicus appointed by this Court to defend the decision of the court of appeals (hereinafter referred to as "the amicus") argues (Br. 16-19) that since the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (CSRA), did not expressly negate the right of excepted service employees like respondent to obtain judicial review of adverse actions under Greenway v. United States, 163 Ct. Cl. 72 (1963), that right must be deemed to have survived the enactment of the CSRA. But the amicus does not adequately answer our argument that the CSRA deals comprehensively and advertently with the remedies available to excepted service employees and does so in a manner inconsistent with allowing such a remedy. Nor does the amicus succeed in distinguishing (Br. 24-28) the many cases in which the courts of appeals (other than the court below) have unanimously concluded that the CSRA does, in comparable situations, implicitly preclude review that would have been allowed by pre-CSRA cases. Respondent is an excepted service employeee. No one disputes that "it is well established that an employing agency is free to discharge excepted service employees without cause" (Chu v. United States, 773 F.2d 1226, 1228 n.2 (Fed. Cir. 1985)). It is also undisputed that excepted service employees discharged for inadequate job performance (under Chapter 43) have no right to judicial review (Harrison v. Bowen, 815 F.2d 1505 (D.C. Cir. 1987)). The question here is whether an excepted service employee who was suspended for 30 days for misconduct (an adverse action of the sort governed by Chapter 75) may obtain judicial review. The statute explicitly gives such an employee (i) judicial remedies if he alleges that his suspension resulted from discrimination (see 5 U.S.C. 7702, 7703; U.S. Br. 17 n.11); (ii) the right to complain to the Special Counsel of the Merit Systems Protection Board (MSPB) if he alleges that his suspension resulted from a "prohibited personnel practice" (see 5 U.S.C. 2302; U.S. Br. 21); and (iii) the full range of Chapter 75 remedies if he falls (respondent does not) within any category of excepted service employees to which the Office of Personnel Management (OPM) has exercised its statutory discretion to grant such rights (see 5 U.S.C 7511(c) (Pet. App. 36a)); except in these cases, excepted service employees have no right to judicial review of adverse actions of the sort covered by Chapter 75. 1. As the amicus recognizes (Br. 17; see also American Federation of Government Employees (AFGE) Br. 10-11), Congress may intend a remedial scheme to preclude other remedies even if it does not say so expressly; where it is clear despite the absence of an exclusivity clause that Congress intended to preclude review under other statutes, that intent must be given effect. As this Court said a century ago, "(a) law embracing an entire subject, dealing with it in all its phases, may thus withdraw the subject from the operation of a general law as effectually as though, as to such subject, the general law were in terms repealed." Cook County Nat'l Bank v. United States, 107 U.S. 445, 451 (1882). The CSRA deals comprehensively with remedies for adverse actions. As we explained in our opening brief (at 13-22), Congress dealt advertently with excepted service employees in that statute and deliberately decided to grant them certain remedies and not others. This "elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations" (Bush v. Lucas, 462 U.S. 367, 388 (1983)) shows that Congress did not intend that excepted service employees should have additional rights with respect to adverse actions under other statutes. /1/ The decision below was premised on Greenway, in which the Court of Claims held in 1963 that a "suit for back pay alleging a violation of (agency) regulations was cognizable in the Court of Claims" (Pet. App. 3a). /2/ The amicus stresses (Br. 17) the canon that "repeals by implication are disfavored." But apart from the fact that "disfavored" expresses only a preference, no statute was repealed here. The Tucker Act, 28 U.S.C. 1491, is "merely jurisdictional" (United States v. Testan, 424 U.S. 392, 400 (1976)) and grants no rights to federal employees. The Back Pay Act of 1966 by its terms awards back pay only after there has been a finding "by appropriate authority under applicable law * * * (that the employee was) affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of (his) pay" (5 U.S.C. 5596(b)(1)); it plainly does not itself give the employee any right he did not otherwise have to obtain judicial review of the correctness of a personnel action. /3/ The issue here is merely whether the decision in Greenway, which pieced together an implied cause of action from those two statutes (see Pet. App. 13a), survives enactment of the CSRA. /4/ Nor is the canon of construction that agency actions taken pursuant to regulations are generally reviewable, on which the amicus also relies (Br. 18-19), dispositive. This Court recently stated that "(t)he presumption of judicial review is after all, a presumption, and 'like all presumptions used in interpreting statutes, may be overcome by,' inter alia, * * * a specific congressional intent to preclude judicial review that is '"fairly discernible" in the detail of the legislative scheme.'" Bowen v. Michigan Academy of Family Physicians, 476 U.S. 567, 673 (1986) (quoting Block v. Community Nutrition Institute, 467 U.S. 340, 349, 351 (1984)). Such a specific intent is plainly discernible in the CSRA. /5/ 2. In three earlier cases, Spagnola v. Mathis, 809 F.2d 16, 30 (D.C. Cir. 1986) (federal employee who was not promoted may not bring claim under 42 U.S.C. 1985 (1)), Rosano v. United States, 800 F.2d 1126 (Fed. Cir. 1986) (per curiam), aff'g 9 Cl. Ct. 137, 142 (1985) (probationary employee may not obtain review of dismissal under the Tucker Act), cert. denied, No. 86-1169 (Mar. 2, 1987), and Carducci v. Regan, 714 F.2d 171, 173-175 (D.C. Cir. 1983) (employee subjected to a brief suspension may not obtain review under the Administrative Procedure Act, 5 U.S.C. (& Supp. III) 701 et seq.), courts of appeals have held that the CSRA implicitly foreclosed rights of judicial review that had previously been recognized under more general statutes, even though that left the employee without a judicial remedy. See also Harrison v. Bowen, 815 F.2d 1505 (D.C. Cir. 1987) (excepted service employee may not obtain review of dismissal under the CSRA or the APA); McClary v. United States, 775 F.2d 280 (Fed. Cir. 1985) (demoted competitive service employee may not bring Tucker Act claim). Indeed, every other court of appeals that has considered the matter has concluded that "the comprehensive nature of the procedures and remedies provided by the CSRA indicates a clear congressional intent to permit federal court review as provided in the CSRA or not at all." Veit v. Heckler, 746 F.2d 508, 511 (9th Cir. 1984). That proposition is dispositive here. Like the court below, the amicus does not dispute the many other decisions holding that the comprehensive nature of the CSRA's treatment of adverse actions precludes review under more general statutes; instead, he seeks unsuccessfully to distinguish them. As did the court below, the amicus attempts (Br. 25-26) to distinguish Carducci on the ground that the employee who sought review in that case was "covered by the provisions of Chapter 75" whereas respondent allegedly is not. But both the employee in Carducci and respondent are within Chapter 75's "universe of discourse," and in both cases the question is whether the deliberate decision not to provide for review in that Chapter implies a congressional intention that it not be available. The employee in Carducci had no right of action under Chapter 75 because the action taken against him was a "minor" adverse action. The court in Carducci held that Congress's decision not to provide a Chapter 75 remedy for minor adverse actions implicitly precluded review under the APA as well. Respondent is not an "employee" for purposes of enjoying Chapter 75 remedies; however (see U.S. Br. 19), this is not because Congress forgot him, but because Congress expressly excluded excepted service employees and gave OPM the discretion to extend the rights granted in Chapter 75 to excepted service employees if it deemed that appropriate (5 U.S.C. 7511(c) (Pet. App. 36a)). It makes no sense to reach a different result here than in Carducci because Congress, by including the plaintiff in Carducci within the definiton of "employee" in Chapter 75, granted that employee some procedural rights, while, by defining "employee" so as not to include excepted service personnel for purposes of that Chapter, Congress granted them no rights. As we argued in our opening brief (at 19), Congress dealt advertently with excepted service employees in Chapter 75, and (see U.S. Br. 31-32) it would invert logic to conclude that, because Congress gave excepted service employees fewer rights than another group under the CSRA, it intended them to have greater rights otherwise. The amicus attempts to distinguish Harrison (Br. 26 n.11) in similar fashion. The amicus notes that the excepted service employee in that case sought review of an adverse action taken under Chapter 43 of the CSRA, which governs adverse actions taken on the basis of inadequate job performance as measured by ratings of performance on the critical elements of employees' jobs. Excepted service employees are included in the definition of "employee" in Chapter 43 (5 U.S.C. 4301(2) (Pet. App. 31a-32a)) but, unlike competitive service employees and veterans, are not authorized to obtain judicial review of adverse actions taken under that Chapter (5 U.S.C. 4303(e) (Pet. App. 33a-34a)). Because the adverse action in this case is of the sort that is covered by Chapter 75 rather than Chapter 43, the amicus argues that, although the employee in Harrison was precluded from obtaining judicial review under other statutes by the comprehensive provisions of the CSRA, respondent is not. Once again, the amicus, like the court below, has it backwards. The fact that Congress expressly granted excepted service employees greater rights under Chapter 43 (but not including a right to judicial review (see 5 U.S.C. 4303(b) and (e) (Pet. App. 32a-34a)) than under Chapter 75 is hardly a reason to conclude that they should be accorded greater rights in adverse action cases of the sort covered by Chapter 75 than in adverse action cases of the sort covered by Chapter 43. /6/ The amicus's argument totally flounders in trying to explain (Br. 27) why excepted service employees may obtain judicial review of adverse actions while under Rosano (see also United States v. Connolly, 716 F.2d 882 (Fed. Cir. 1983) (en banc), cert. denied, 465 U.S. 1065 (1984)), probationary employees may not, even though Greenway, the decision that is the foundation for the right to review asserted here, held that a probationary excepted service employee could obtain review of an adverse action (see Pet. App. 3a-4a). The amicus first states (Br. 27) that the decisions holding that probationary employees may not obtain judicial review of adverse actions "were based upon the express exclusion of probationary employees from the definition of employees in Chapter 75," whereas, according to the amicus, excepted service employees are not expressly excluded from that definition. There is simply no basis for that argument. The relevant definitional section defines "employee" as "an individual in the competitive service who is not serving a probationary or trial period" (5 U.S.C. 7511(a)(1)(A) (Pet. App. 36a)). As the amicus states, probationary employees are excluded from the definition by the phrase "not serving a probationary or trial period." But excepted service employees are just as explicitly excluded from the definition by the phrase "in the competitive service" since excepted service personnel are those federal employees whose positions are excepted from the competitive service (5 U.S.C. 2103(a)). Since probationary employees and excepted service employees are excluded from the definition of "employee" by adjoining clauses in the same sentence of the applicable definitional provision, it is clear that the same conclusion must be drawn from both exclusions. The amicus also tries to distinguish between excepted service employees and probationary employees (Br. 27) on the basis of the statement in the Senate Report that "(t)he probationary or trial period * * * is an extension of the examining process * * * (so that it) is inappropriate to restrict an agency's authority to separate an employee who does not perform acceptably during this period." S. Rep. 95-969, 95th Cong., 2d Sess. 45 (1978) (emphasis added). The amicus argues that this "clear indications in the legislative history that Congress did not intend judicial review for probationary employees" (Br. 27) distinguishes them from excepted service employees. But the purpose of the statement was to explain why probationary employees are not granted any procedural rights under Chapter 43, which deals with job performance (see 5 U.S.C. 4303(f)); excepted service employees have certain rights under that Chapter (see 5 U.S.C. 4303(b) (Pet. App. 32a-33a)), but they concededly do not include judicial review (see 5 U.S.C. 4303(e) (Pet. App. 33a-34a); Harrison v. Bowen, supra). The statement does not have any bearing at all on whether judicial review should be available to excepted service employees with respect to the kinds of adverse actions governed by Chapter 75. The adverse action taken here is of a type governed by Chapter 75. Section 7511(a)(1)(A) (Pet. App. 36a) excludes excepted service employees just as explicitly as it excludes probationary employees from the procedural rights granted by that Chapter. Nothing distinguishes the degree of explicitness with which they are excluded except that Congress has provided that OPM may by regulation grant certain types of excepted service employees the rights provided in Chapter 75, a difference whose only relevance is that it further demonstrates that Congress dealt advertently with respect to the rights of excepted service personnel following adverse actions covered by Chapter 75. /7/ Like the probationary employee in Romano, a decision that amicus does not challenge, respondent was implicitly denied judicial review of such actions by Congress, which deliberately excluded him from the coverage of Chapter 75. Finally, it has long been understood that "(t)he consequences of one's being in the 'excepted' service (and not a veteran) are that one cannot put on the panoply of protection available to those in the 'competitive' service when threatened by adverse action for cause." Fiorentino v. United States, 607 F.2d 963, 966 (Ct. Cl. 1979), cert. denied, 444 U.S. 1083 (1980), citing Batchelor v. United States, 169 Ct. Cl. 180, cert. denied, 382 U.S. 870 (1965). /8/ Accordingly, it would not seem to require any explanation that by granting certain rights to competitive service employees (and veterans) only, Congress did not intend non-veterans in the excepted service to share those rights. 3. Canons of statutory construction should not be allowed to displace common sense. Here, as in most instances where Congress expressly failed to provide judicial review or other elaborate remedy in the CSRA, the obvious explanation is that Congress thought the remedy impractical or unwarranted in the circumstances. In cases involving minor adverse actions, for example, Congress decided, as the court in Carducci concluded, that limited procedural protections, not including a right to judicial review, were all that the circumstances warranted. In cases involving probationary employees, Congress decided, as the court in Rosano concluded, that Congress intended, by not providing judicial review to probationary employees, to foreclose that right; a probationary period is a good deal less "probationary" if the employee may challenge a decision to discharge him in the courts. It is equally obvious that the sensible explanation for the CSRA's grant of only limited remedies, not including judicial review, to excepted service employees, is that Congress thought only limited remedies were appropriate to the nature of these positions. The excepted service contains various kinds of employees. Some, like respondent, are placed in the excepted service because they are hired for positions that will exist for only a short period, so that it is not practical to hold competitive examinations for those positions. See 5 C.F.R. 213.3102(hh) (1978); 5 C.F.R. 213.3102. It would make little sense to provide elaborate remedial provisions for such employees in the case of adverse actions, since their positions will exist for only a limited duration in any event. The same facts that make it impractical to hold competitive examinations to fill the positions obviously tend to make it impractical to conduct lengthy reviews of why a particular employee was subjected to an adverse action. /9/ As noted in our petition for a writ of certiorari (at 10 n.13), OPM requires agencies to establish grievance systems in which employees may raise employment matters, and excepted service employees are generally covered by those systems. Thus, as in this case, excepted service employees generally may file grievances challenging adverse actions. /10/ Congress plainly concluded that for those positions no judicial remedy (which would enable excepted service employees to go directly to court while competitive service employees must pursue their CSRA administrative remedies) would be appropriate. The AFGE repeatedly suggests (Br. 11-12, 16) that, knowing that judicial review is unavailable, agencies will fail to follow their grievance procedures. This is certainly not such a case. The Department of the Interior, upon realizing that respondent should have been permitted to file a grievance, allowed him to do so and granted him more than seven months back pay even though dismissal was a permissible sanction for his admitted infractions (see Pet. App. 24a-25a). Conversely, the court below did not merely determine whether the Department of the Interior had complied with the plain requirements of its regulations, but went beyond that to conclude that, since it had belatedly complied, the agency was required to cancel respondent's 30-day suspension despite the statutory requirement of such a suspension. The possibility, suggested in our opening brief (at 33 n.25), that there could be a case in which review under the Mandamus Act, 28 U.S.C. 1361, is appropriate to correct an agency's clear failure to follow its regulations does not warrant the decision below, allowing excepted service employees routinely to challenge adverse actions in the Claims Court despite Congress' contrary intention. /11/ Finally, the amicus states (Br. 31) that, despite the fact that allowing respondent to bring suit seems plainly contrary to Congress's intent and leads to anomalous results, "(i)t does not fall to this Court to mend the holes in a congressional tapestry." The argument is, in essence, that it is beyond this Court's powers to determine, in the absence of an exclusivity provision, that Congress intended the remedies provided in the CSRA to be the exclusive remedies for adverse actions. There is absolutely no merit to that view. Reading the provisions of a general statute in light of the provisions of a specific statute to determine whether suit may be filed under the general statute is a quintessential judicial activity, as this Court has recognized at least from 1882 (see Cook County Nat'l Bank v. United States, supra) to the present (see Bowen v. Michigan Academy of Family Physicians, supra), and has specifically recognized in a case involving the rights of federal employees (Brown v. GSA, 425 U.S. 820 (1976)). All of the courts of appeals that have determined that federal employees may not pursue claims under general statutes (see Harrison v. Bowen, Spagnola v. Mathis, Rosano v. United States, McClary v. United States, and Carducci v. Regan, supra) were properly performing their judicial duty. For these reasons and the reasons stated in our opening brief, the judgment of the court of appeals should be reversed. Respectfully submitted. CHARLES FRIED Solicitor General SEPTEMBER 1987 /1/ As we noted in our opening brief (at 17 n.11), where Congress did want to preserve non-CSRA judicial remedies for certain kinds of claims, such as discrimination claims, it did so explicitly, and it carefully integrated the procedures for bringing such claims with CSRA procedures (see 5 U.S.C. 7702, 7703). If Congress had intended to permit excepted service employees to challenge adverse actions in court under Greenway it could have said so and established procedures and standards to govern such challenges, as it did for discrimination claims. /2/ The amicus contends (Br. 17), as does the AFGE (Br. 15), that it must be assumed that Congress was aware that the Court of Claims had held in Greenway that a probationary, excepted service employee had a right to review in the Court of Claims. There is no evidence for such an assumption; the relevant congressional reports note only that prior to the enactment of the CSRA competitive service employees challenging adverse actions "generally file(d) their claims with U.S. District Courts." S. Rep. 95-969, 95th Cong., 2d Sess 63 (1978). /3/ Here, the Department of the Interior complied fully with the Back Pay Act: having found that the personnel action was unjustified to the extent it exceeded a 30-day suspension, the Department awarded respondent more than seven months back pay. This case does not present the question whether an employee may bring suit to enforce his right to back pay in respect of a personnel action that has been determined to have been unjustified or unwarranted. /4/ This case thus differs from Morton v. Mancari, 417 U.S. 535, 551 (1974), relied upon by the court below (Pet. App. 4a) and by respondent (Br. 7), where this Court rejected the claim that the employment preference for Indians established by the Indian Reorganization Act of 1934, 25 U.S.C. 472, was implicitly invalidated by the Equal Employment Opportunity Act of 1972, 42 U.S.C. 2000e et seq., which prohibits race discrimination in federal employment. The argument in that case was that the 1972 Act negated the Indian preference statute itself. (The Court noted in that case that the Indian preference statute "is a specific provision" hwereas the 1972 Act "is of general application," and concluded that "(w)here there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment" (417 U.S. at 550-551). In this case, in contrast, the issue is whether a specific statute (the CSRA) forecloses a right of action that had previously been judicially implied.) /5/ As we have argued (U.S. Br. 27-36), the Greenway remedy conflicts with Congress's intent in enacting the CSRA, made evident by its advertent treatment of excepted service employees in Chapters 23, 43, and 75 of the CSRA, that those employees have only limited rights in adverse action cases (such as the right to complain to the Office of Special Counsel of the MSPB and certain procedural rights in cases brought under Chapter 43), not including any right to obtain judicial review unless they are preference eligibles or part of a class of excepted service employees to which the Office of Personnel Management has extended the rights available under Chapter 75 pursuant to 5 U.S.C. 7511(c) (Pet. App. 36a). /6/ In addition, contrary to the argument of the amicus (Br. 18-19), the court in Harrison explained (815 F.2d at 1517) that the presumption that judicial review is normally available to determine whether an agency complied with its regulations, as this Court held in Vitarelli v. Seaton, 359 U.S. 535 (1959), and Service v. Dulles, 354 U.S. 363 (1957), is inapplicable where the relevant statutory scheme shows that Congress intended to preclude judicial review. /7/ OPM has provided that some excepted service personnel, but not respondent, have the rights granted "employees" in Chapter 75 (see 5 C.F.R. 752.401(b)(3) and (4)). /8/ As noted in our opening brief (at 30 n.23), it seems clear that excepted service employees have no property interest in their jobs (and, in any event, respondent received any process due him). Only the brief on behalf of amici Finn et al. (at 11-12) challenges that conclusion. Contrary to amici Finn et al., the fact that it has long been understood that excepted service employees have extremely limited rights (and, therefore, no property interest in their jobs) shows that no serious constitutional question is raised by denying them judicial review of adverse actions. /9/ Many excepted service employees serve in policy-making or confidential positions. See 5 C.F.R. 213.3301. It is generally understood that persons holding such positions should not have any sort of tenure, as their placement in the excepted service confirms, and that their employment is subject to the will of the "head of an agency or other key appointed official()" with whom they have "a close and confidential working relationship" (ibid.). As noted above (see page 2), Congress expressly provided that OPM may extend to such excepted service positions as it deems appropriate the rights provided competitive service employees by Chapter 75. OPM has extended such rights to two categories of excepted service positions (5 C.F.R. 752.401(b)(3) and (4)), but respondent's position is not in either category. /10/ In analogous cases arising in the private sector, courts do not review the merits of grievance decisions where, as here (see Department of the Interior Federal Personnel Manual -- 231, Pt. 370 DM 771-3.21 (May 4, 1981)), the terms of the provision establishing the grievance procedure do not provide for such review. See United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596 (1960). /11/ In invoking Greenway, the court below described that case as providing a right to review to determine whether a dismissal was "arbitrary" (Pet. App. 3a-4a), thus implying that review of the merits of the decision was in order, not merely review of whether the agency had followed its own procedures.