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.