DATE: September 7, 1993
CASE NO. 84-WPC-1
IN THE MATTER OF
MURPHY R. CONLEY,
COMPLAINANT,
v.
MCCLELLAN AIR FORCE BASE,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Before me for review is the [Recommended] Decision and Order
(R.D. and O.) issued on September 12, 1984, by the Administrative
Law Judge (ALJ) in this case arising under the employee
protection provision of the Federal Water Pollution Control Act
or Clean Water Act (CWA), 33 U.S.C. § 1367 (1988). The ALJ
has recommended that the complaint should be dismissed. I agree
generally with his recommendation as set forth below.
A.
Complainant Murphy R. Conley complains that he was
unlawfully reprimanded by the Department of the Air Force, which
operates Respondent McClellan Air Force Base, in violation of CWA
Section 1367. That provision states:
No person shall fire, or in any other way
discriminate against, or cause to be fired or
discriminated against, any employee . . . by
reason of the fact that such employee . . .
has filed, instituted, or caused to be filed
[PAGE 2]
or instituted any proceeding under this chapter, or
has testified or is about to testify in any proceeding
resulting from the administration or enforcement
of the provisions of this chapter.
33 U.S.C. § 1367. A threshold issue, then, is whether the
Air Force is a "person" within the meaning of the provision. I
hold that it is not. Under the CWA general definitional section,
the term "person" means "an individual, corporation, partnership,
association, State, municipality, commission, or political
subdivision of a State, or any interstate body." 33 U.S.C.
§ 1362(5). It does not mean "the United States Government,"
and thus the Air Force does not comprise a "person" for purposes
of Section 1367. SeeU.S. Dept. of Energy v. Ohio,
503 U.S. _____, 112 S. Ct. 1627, 1633-1635, 118 L. Ed.2d 255,
267-268 (1992) (omission of the United States from the CWA
definition of the term person "has to be seen as a pointed one
when so many other governmental entities are specified").
The inquiry does not end here, however. In some instances
the CWA can apply to the Federal Government just as it applies to
any nongovernmental entity. In particular, the CWA "federal
facilities" provision states:
Each department, agency, or instrumentality
of the executive, legislative, and judicial
branches of the Federal Government (1) having
jurisdiction over any property or facility,
or (2) engaged in any activity resulting, or
which may result, in the discharge or runoff
of pollutants, and each officer, agent, or
employee thereof in the performance of his
official duties, shall be subject to, and
comply with, all Federal, State, interstate,
and local requirements, administrative
authority, and process and sanctions
respecting the control and abatement of water
pollution in the same manner, and to the same
extent as any nongovernmental entity
including the payment of reasonable service
charges.
33 U.S.C. § 1323(a). Within the context of this initial
sentence of the provision, the question becomes whether CWA
Section 1367, the employee protection provision, is a "Federal .
. . requirement . . . respecting the control and abatement of
water pollution . . . ."
At bottom, Section 1367, would appear to be a
nondiscrimination "requirement" even though it is formulated as a
[PAGE 3]
prohibition, i.e., discrimination against persons filing,
instituting, or testifying in CWA proceedings is prohibited.
Certainly Section 1367 is no less a requirement than the CWA's
central provision prohibiting the discharge of any pollutant
except in accordance with the Act. 33 U.S.C. § 1311(a).
Section 1367 also concerns the "control and abatement of water
pollution" in that it affords employees protection for reporting
CWA violations and participating in proceedings "resulting from
the administration and enforcement" of the CWA.
Commenting on the inclusion of CWA Section 1367, the Senate
Report states that "[u]nder this section employees and union
officials could help assure that employers do not contribute to
the degradation of the environment." S. Rep. No. 414, 92d Cong.,
1st Sess. 83, reprinted in 1972 U.S. Code Cong. & Admin.
News 3668, 3748. Thus, Congress contemplated that whistleblower
protections would assist in implementing the CWA's standards. [1]
In Parola v. Weinberger, 848 F.2d 956, 961, 962 n.3 (9th
Cir. 1988), which involved a parallel federal facilities
provision of the Resources Conservation and Recovery Act, 42
U.S.C. § 6961 (1988), the court held the Federal Government
subject to a municipal ordinance imposing an exclusive garbage
collection franchise, noting that the term "requirements" did not
exclude "the means of implementing standards." SeeUnited States v. Washington, 872 F.2d 874, 880 (9th Cir.
1989).
Other statutes similarly impose a nondiscrimination
requirement to achieve enforcement. With regard to the parallel
provision under the Surface Transportation Assistance Act, the
Supreme Court stated:
Section 405 was enacted . . . to encourage
employee reporting of noncompliance with
safety regulations governing commercial motor
vehicles. Congress recognized that employees
in the transportation industry are often best
able to detect safety violations and yet,
because they may be threatened with discharge
for cooperating with enforcement agencies,
they need express protection against
retaliation for reporting these violations.
Brock v. Roadway Express, Inc., 481 U.S. 252, 258 (1987).
The legislative history of the Clean Air Act offers a further
articulation:
This amendment would prohibit employers from
discriminating, discharging or otherwise
penaliz[ing] their employees who initiate law
[PAGE 4]
suits under the Clean Air Act, testify in public
hearings or court proceedings . . . in air pollution
cases, or otherwise involve themselves in such
administrative or legal proceedings. The best
source of information about what a company is
actually doing or not doing is often its own
employees, and this amendment would insure
that an employee could provide such information
without losing his job or otherwise suffering
economically from retribution from the polluter.
H.R. Rep. No. 294, 95th Cong., 1st Sess. 325, reprinted in
1977 U.S. Code Cong. & Admin. News 1404. Accordingly, CWA
Section 1367 would appear to be a Federal requirement respecting
the control and abatement of water pollution as those terms
commonly are understood.
The CWA federal facilities provision continues, with
reference to its initial sentence, as follows:
The preceding sentence shall apply (A) to any
requirement whether substantive or procedural
(including any recordkeeping or reporting
requirement, any requirement respecting
permits and any other requirement,
whatsoever), (B) to the exercise of any
Federal, State, or local administrative
authority, and (C) to any process and
sanction, whether enforced in Federal, State,
or local courts or in any other manner.
33 U.S.C. § 1323(a). The general effect of the second
sentence is to give the initial sentence broad application. The
Federal Government is subject to and must comply with (1) any
Federal, State, interstate and local requirements whether
substantive or procedural, (2) any Federal, State, or local
administrative authority, and (3) any process and sanction
regardless the court
or other forum or means of enforcement.
An additional question arises, however, with regard to the
Section 1367 employee protection provision, namely whether the
term "including" in the second sentence of the federal facilities
provision is illustrative or whether, instead, it is restrictive
or definitional. See, e.g., Sutherland Statutory
Construction §§ 47.17-47.20, at 188-207 (5th ed. 1992)
(under principles of ejusdem generis, the general may be defined
by the specific); Adams v. Dole, 927 F.2d 771, 776-777
(4th Cir.), cert. denied, 112 S. Ct. 122 (1991). In other
words, are the substantive and procedural requirements to which
the Federal Government is subject and with which it must comply
limited to requirements similar in nature to recordkeeping and
reporting requirements and requirements respecting permits?
[PAGE 5]
At its core, the CWA requires compliance with applicable
regulations prescribing standards and limitations and with
permits issued by States or the Environmental Protection Agency
(EPA) under the National Pollutant Discharge Elimination System.
See, e.g., 33 U.S.C. §§ 1312, 1316, 1317, 1328,
1341, 1342, 1344; 40 C.F.R. § 401.10 (1992). In this
context, the CWA Section 1367 employee protection provision
embodies a concomitant, largely substantive requirement designed
to promote compliance with core standards, limitations, and
permits and reasonably could be characterized as embraced by the
class indicated by specifying "any requirement respecting
permits" in the "including" phrase in the second sentence of the
federal facilities provision. [2]
This observation notwithstanding, a number of considerations
persuade me that the term "including" was intended to be
illustrative. As stated above, CWA "core" requirements address
standards, limitations, and permits. Other requirements involve
recordkeeping, reporting, monitoring, sampling, providing the EPA
Administrator with information, affording the Administrator entry
and access, and making information available to Congress and the
public. See 33 U.S.C. §§ 1318, 1320(d).
Accordingly, the reference to "any requirement whether
substantive or procedural (including any recordkeeping or
reporting requirement, any requirement respecting permits and any
other requirement, whatsoever)" indicates that the Federal
Government is subject to all requirements, even those, like
recordkeeping, which may not be central to eliminating pollution.
[3]
In this regard, reference to the history of the CWA's
federal facilities provision is useful. Prior to 1977, the CWA
required federal facilities to "comply with Federal, State,
interstate and local requirements respecting control and
abatement of pollution to the same extent that any person is
subject to such requirements." 33 U.S.C. § 1323 (Supp. V
1975). Relying on principles of sovereign immunity and on
legislative history arguably limiting the term "requirements" to
"effluent limitations and standards and schedules of compliance,"
the Supreme Court held that federal facilities were not subject
to State permit requirements under the CWA. EPA v. State
Water Resources Control Bd., 426 U.S. 200, 215, 227 (1976).
Cf.Hancock v. Train, 426 U.S. 167 (1976) (federal
facilities provision of Clean Air Act does not subject Federal
Government to State permit requirements). Thereafter, Congress
amended the federal facilities provisions of the CWA and the
Clean Air Act to overrule EPA and Hancock and to
clarify that the Federal Government was required to comply with
State permit, reporting and other procedural requirements. S.
Rep. No. 370, 95th Cong., 1st Sess. 67, reprinted in 1977
U.S. Code Cong. & Admin. News 4326, 4392; H.R. Rep. No. 6161,
95th Cong., 1st Sess. 12,
[PAGE 6]
reprinted in 1977 U.S. Code Cong. & Admin. News
1077, 1089-1090. Congress's concern that federal facilities
comply with all State requirements suggests that it also intended
all requirements of the Federal statutes to apply. See
1977 U.S. Code Cong. & Admin. News 4392 (amendment to CWA
Section 1323 clarifies that "all Federal facilities must comply
with all substantive and procedural requirements of Federal,
State, or local water pollution control laws").
On the question of coverage, the ALJ found that Respondent
constituted a federal facility within the meaning of CWA Section
1323(a) and that Section 1367 thus applied to it in the same
manner and to the same extent as any nongovernmental entity. The
ALJ's finding that Respondent constituted a federal facility
under Section 1323(a) is supported by the record, and I adopt it.
R.D. and O. at 2-3 (carryover paragraph). I also agree with the
ALJ that Respondent is subject to and must comply with Section
1367's nondiscrimination requirement.
B.
In addition to its contention that Section 1367 does not
apply to the Federal Government, the Air Force argues that
Complainant's exclusive remedy arises under the Civil Service
Reform Act (CSRA), which provides protection for whistleblowers.
See 5 U.S.C. § 2302(b)(8) (Supp. IV 1992). This
argument essentially is one of implied repeal of the CWA,
specifically that the later-enacted CSRA, with its comprehensive
scheme of remedies to enforce personnel prohibitions, effectively
has repealed CWA Section 1367 as it applies to Federal Government
employees.
Such repeals of express statutory provisions are not favored
and will not take effect absent a "clear and manifest"
congressional intent to repeal. U.S. v. Lund, 853 F.2d
242, 247-249 (4th Cir. 1988).
It is a cardinal principle of construction
that repeals by implication are not favored.
When there are two acts upon the same
subject, the rule is to give effect to both
if possible. United States v. Tynen,
11 Wall. 88, 92; Henderson's Tobacco,
11 Wall. 652, 657; General Motors
Acceptance Corp. v. United States, 286
U.S. 49, 61, 62. The intention of the
legislature to repeal "must be clear and
manifest." Red Rock v. Henry, 106
U.S. 596, 601, 602. It is not sufficient, as
was said by Mr. Justice Story in Wood v.
United States, 16 Pet. 342, 362, 363, "to
establish that subsequent laws cover some or
even all of the cases provided for by
[PAGE 7]
[the prior act]; for they may be merely affirmative, or
cumulative, or auxiliary." There must be "a positive
repugnancy between the provisions of the new law, and
those of the old; and even then the old law is repealed
by implication only pro tanto to the extent of
the repugnancy." See also Posados v. National City
Bank, 296 U.S. 497, 504. United States v.
Borden Co., 308 U.S. 188, 198-199 (1939).
AccordWatt v. Alaska, 451 U.S. 259,
266-267 (1981); United States v. United Continental
Tuna Corp., 425 U.S. 164, 168 (1976); Morton v.
Mancari, 417 U.S. 535, 549-550 (1974); Silver
v. New York Stock Exchange, 373 U.S. 341, 357
(1963); Mt. Hood Stages, Inc. v. Greyhound
Corp., 555 F.2d 687, 691 (9th Cir. 1979), cert.
denied, 449 U.S. 831 (1980).
Here, the Air Force has cited no authority for the
proposition that the CSRA repealed a broad range of earlier-
enacted laws that explicitly provide substantive protections to
whistleblowers. [4] To the contrary, at least one court has
held that "Congress intended the CSRA to provide
additional, not decreased, protection for federal
employees who blow the whistle on illegal or improper government
conduct." Borrell v. U.S. Intern. Communications Agency,
682 F.2d 981, 990 (D.C. Cir. 1982) (CSRA does not supplant
judicially-created remedies for constitutional violations)
(citing legislative history). SeeHubbard v. EPA,
809 F.2d 1, 12-13 (Wald, Chief J., dissenting) (CSRA does not
preclude suits adjudicating allegations of violation of federal
employees' rights under Privacy Act, 5 U.S.C. 552a(g)); Theard
v. U.S. Army, 653 Fed. Supp. 536, 544-545 (M.D.N.C. 1987)
(CSRA did not repeal federal employees' rights under Title VII,
citing Borrell). Moreover, courts have stated that the
CSRA does not foreclose other avenues of relief for federal
employees where Congress otherwise has provided. SeeVeit v. Heckler, 746 F.2d 508, 511 (9th Cir. 1984)
("federal courts have no power to review federal personnel
decisions and procedures unless such review is expressly
authorized by Congress in the CSRA orelsewhere)
(emphasis added).
A leading case under the CSRA is U.S. v. Fausto, 484
U.S. 439 (1988), which holds that the CSRA's withholding from
non-preference eligible employees in the excepted service of
administrative or judicial review of a Federal agency's adverse
personnel action bars such employees from pursuing the statutory
remedies they traditionally had under the previously-enacted Back
Pay Act. 484 U.S. at 455. Fausto did not hold that the
CSRA impliedly repealed all earlier-enacted statutory remedies
for Federal employees for wrongful personnel action. On the
contrary, the Fausto holding is a limited one. The Court
indicated this by making clear that the Back Pay Act was not
repealed and that the remedies of that Act were still available
[PAGE 8]
to Federal employees provided that an "appropriate authority"
(which the Court concluded was no longer the Claims Court) found
an unwarranted personnel action. 484 U.S. at 454.
Furthermore, the Fausto majority reached its
conclusion only after finding inapplicable two principles of law,
one of which -- the principle of statutory construction
disfavoring repeals by implication -- is relevant here. The
Fausto majority agreed with this principle, 484 U.S. at
453, but found it inapplicable because the Court viewed its
decision as not repealing "an express statutory text" but as
repealing the judicial interpretation of an earlier-enacted
statute in order to reconcile it with the CSRA. Id. As
noted in United States v. Lund, 853 F.2d at 248, cases
like Fausto, which hold that the comprehensive nature of
the CSRA precludes judicially-implied remedies, are "completely
inapposite here, for as the Supreme Court specifically stated in
Fausto, repeal by implication of a remedy implied by a
court is a wholly different question than repeal by implication
of an express provision of the statute itself."
Were I to find that the Federal Government employees in
question were not covered by the CWA whistleblower provision, I
would be adding to the statutory text words of limitation which
Congress did not see fit to include, and thus would be engaging
in repeal of the statute. Resolution of the question of the
CSRA's foreclosure of rights under the CWA whistleblower
provision, therefore, requires application of the rules of
statutory construction on implied repeals. SeeSilver
v. New York Stock Exchange, 373 U.S. at 357, where the
Supreme Court noted that "[t]he Securities Exchange Act contains
no express exemption from the antitrust laws or, for that matter,
from any other statute. This means that any repealer of the
antitrust laws must be discerned as a matter of implication, and
'[i]t is a cardinal principle of [statutory] construction that
repeals by implication are not favored.'" 373 U.S. at 357
(citation omitted).
In reaching its decision in Fausto, the Court was
concerned solely with the Congressional policy "designed to
balance the legitimate interests of the various categories of
Federal employees with the needs of sound and efficient
administration." 484 U.S. at 445. There is nothing in the
Court's decision suggesting that it would have ruled similarly
had the case involved the balancing of the interests of two
separate national policies -- the congressional policy for
promotion of public health and the environment, 33 U.S.C. §
1251, through the protection of whistleblowers, vis-a-vis the
congressional policy for the sound administration of the Federal
government. Where more than the balancing of a Federal
employee's interest with the
[PAGE 9]
Federal government's interests in sound and efficient
administration of government is involved, the CSRA has not barred
action under another Federal statute. United States v.
Lund, 853 F.2d at 248. [5]
Additionally, even where they have limited the Federal
employee to the remedies provided in the CSRA, courts have
recognized that the CSRA is not the exclusive remedy for Federal
employees for all employment wrongs. Where employees seek
to vindicate constitutional rights, the CSRA does not preclude
"the exercise of federal jurisdiction over federal employees and
job applicants altogether." Spagnola v. Mathis, 859 F.2d
223, 229 (D.C. Cir. 1988).
The CWA whistleblower provision meets the exceptions noted
above. The purpose of this provision is to promote the
interest of the Federal government in a clean and healthful
environment. While the individual employee benefits personally
from the protection afforded by this provision, the basis of such
protection is ensuring the Federal government's interest in
having violations of environmental standards disclosed.
I do not find persuasive those pre-Fausto cases,
e.g., Carducci v. Regan, 714 F.2d 171 (D.C. Cir.
1983), and Spagnola v. Mathis, 809 F.2d 16 (D.C. Cir.
1986), nor those cases following Fausto, which have
foreclosed for Federal employees other statutory avenues on the
ground that the CSRA provides a comprehensive scheme for
administrative and judicial review of Federal personnel actions
and practices. For the most part, these cases dealt with
situations in which the employee was trying to bypass the CSRA
and go directly to the courts, and thus involved the employee's
personal interest vis-a-vis the Federal government's interest in
the sound and efficient administration of its operations. [6]
Congress had the opportunity in subsequent amendments to the
CSRA to make clear that the CSRA was the exclusive remedy for
Federal environmental whistleblowers. Not only did Congress not
do this, but, when it enacted the Whistleblower Protection Act of
1989 (WPA), which amended Section 2302(b)(8) of the CSRA to
strengthen the protection afforded whistleblowers, Congress
clearly expressed the contrary view. Congress included in the
WPA a newly-created section which states: "Except as provided in
section 1221(i), nothing in this chapter or chapter 23 shall be
construed to limit any right or remedy available under provision
of this statute which is outside of both this chapter and chapter
23." 5 U.S.C § 1222. The Joint Explanatory Statement for
the WPA makes clear that Section 2302(b)(8) of the CSRA, as
amended by the WPA, is not the exclusive remedy for Federal
environmental
whistleblowers:
15. AVAILABILITY OF OTHER REMEDIES
[PAGE 10]
The bill contains a new section 1222
of title 5, United States Code, which
provides that the network of rights and
remedies created under chapter 12 and
chapter 23 of title 5 is not meant
to limit any right or remedy which might be
available under any other statute. Other
statutes which might provide relief for
whistleblowers include the Privacy Act,
a large number of environmental and
labor statutes which provide specific
protection to employees who cooperate with
federal agencies, and civil rights
statutes under title 42, United States Code.
Section 1222 is not intended to create a
cause of action where none otherwise exists
or to reverse any court decision. Rather,
section 1222 says it is not the intent of
Congress that the procedures under
chapters 12 and 23 of title 5,
United States Code are meant to provide
exclusive remedies.
135 Cong. Rec. 4,514, 5,035 (1989) (emphasis added). [7] In
these circumstances, I do not believe that the Air Force has
substantiated a finding of repeal by implication.
C.
With regard to the merits of Complainant's complaint of
unlawful discrimination, the ALJ found that Complainant was
reprimanded for a legitimate, nondiscriminatory reason and
recommended that the complaint should be dismissed. To prevail
on a CWA whistleblower complaint, a complainant must establish
that the respondent took adverse employment action against him
because he engaged in an activity protected under Section 1367.
A complainant initially must show that it was likely that the
adverse action was motivated by a protected activity. Guttman
v. Passaic Valley Sewerage Comm'rs, Case No. 85-WPC-2, Sec.
Dec., Mar. 13, 1992, slip op. at 9, aff'd, No. 92-3261 (3d
Cir. Apr. 16, 1993). The respondent may rebut such a showing by
producing evidence that the adverse action was motivated by a
legitimate, nondiscriminatory reason. The complainant then must
prove that the proffered reason was not the true reason for the
adverse action. St. Mary's Honor Center v. Hicks, 61
U.S.L.W. 4782 (June 25, 1993).
CWA Section 1367 prohibits discrimination "by reason of the
fact that [an] employee or representative has filed, instituted,
or caused to be filed or instituted any proceeding under this
chapter, or has testified or is about to testify in any
proceeding resulting from the administration or enforcement of
the provisions of this chapter." 33 U.S.C. § 1367(a).
[PAGE 11]
Complainant, an industrial waste water treatment plant operator,
engaged in protected activity when he complained or "appealed" to
the California State Water Resources Control Board about the
classification of the McClellan Air Force Base Waste Water
Treatment Plant. Respondent reprimanded Complainant shortly
after becoming aware of Complainant's renewed appeal.
Complainant thus met the protected activity, adverse action, and
causation components of his prima facie showing as found by the
ALJ. R.D. and O. at 5. SeeCouty v. Dole, 886
F.2d 147, 148 (8th Cir. 1989); Mitchell v. Baldrige, 759
F.2d 80, 86 and n.6 (D.C. Cir. 1985); Burrus v. United
Telephone Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir.),
cert. denied, 459 U.S. 1071 (1982) (causal connection
established by showing that employer was aware of protected
activity and that adverse action followed closely thereafter).
I also agree with the ALJ that Complainant's discrimination
complaint was timely in that he filed within a day or two of
receiving the Notice of Proposed Reprimand and two months in
advance of receiving the Decision to Reprimand. R.D. and O.
at 4. Contrary to Respondent's position, the record shows that
the early counseling received by Complainant did not afford him
final, definitive, and unequivocal notice of the reprimand
decision. English v. Whitfield, 858 F.2d 957, 961-962
(4th Cir. 1988).
In its defense, Respondent produced evidence that it
reprimanded Complainant for shutting down the chem-mill without
consulting his supervisor contrary to his instructions, and the
ALJ credited this motivation. R.D. and O. at 6-7.
Finally, Complainant failed to prove pretext. On this
issue, Complainant points to evidence that on a separate, earlier
occasion in 1982 the Air Force considered suspending him because
he had engaged in protected activity, namely complaining to the
State Water Resources Control Board that Respondent had violated
the CWA. ALJ Exh. 2. The Air Force subsequently "cancelled" its
notice of proposed suspension after contact with Department of
Labor conciliators, and all references to the proposed action
were removed from Complainant's personnel files. ALJ Exh. 1.
Although Respondent was investigated by the Control Board in
early 1983 and found in violation of CWA regulations, no evidence
exists to support a finding that Complainant's 1984 reprimand for
shutting down the chem-mill was issued in retaliation for the
consequences of his 1982 complaint. Accordingly, Complainant's
complaint is dismissed.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The Senate Report also states that "[a]ny worker who is
called upon to testify or who gives information with respect
to an alleged violation of a pollution control law by his
employer or who files or institutes any proceeding to enforce
a pollution control law against an employer may be subject to
discrimination." S. Rep. No. 414, 92d Cong., 1st Sess. 83,
reprinted in 1972 U.S. Code Cong. & Admin. News 3748.
[2] Respondent argues that Section 1367 cannot apply to the
federal facilities addressed in Section 1323 because it appears
in a different subchapter in Title 33. (Section 1323 appears in
"Subchapter III -- Standards and Enforcement," and Section 1367
appears in the "General Provisions" of Subchapter V along with,
e.g., the definitions and citizen suits provisions.) To
the contrary, provisions governing "Permits and Licenses" appear
in a different subchapter, Subchapter IV, and federal facilities
expressly are subject to "requirements respecting permits."
[3] I have considered the analysis employed in Adams v.
Dole, 927 F.2d at 777, where the court held the particular
"including" phrase to be restrictive or definitional, and I find
important distinctions. Unlike the situation in Adams,
the instant term does not require further limitation in order to
apply since it has been restricted in the first sentence of the
federal facilities provision to requirements "respecting the
control and abatement of water pollution." Moreover, the instant
"including" phrase declines to do more than provide bona fide
examples of such requirements. It does not, as in Adams,
extend the term in question to include something that, by
definition, it excludes. Finally, even if construed here as in
Adams, the entire universe of "requirements" would remain
in that the phrase would read: any requirement [by which we mean
to include] three enumerated types "and any other requirement,
whatsoever." I find this final language compelling because of
its emphatic character. Had Congress intended to restrict the
term "requirement," it likely would have referred simply to
"other requirements." See Sutherland Statutory
Construction § 47.17 at 188-189.
[4] The sole case cited by the Air Force on this issue, Bush
v. Lucas, 462 U.S. 367 (1983), which holds that the court
will not imply a new nonstatutory remedy for First Amendment
claims in addition to any remedies provided by the CSRA, is
inapposite.
[5] Lund was indicted because of nepotism under 18 U.S.C.
§ 208(a) (1988), a criminal statute prohibiting conflicts of
interest, which had been enacted 16 years prior to the CSRA and
which never previously had been interpreted to include conflicts
of interest in intra-agency personnel matters. Lund argued that
application of Section 208 to his conduct was precluded by the
CSRA because the CSRA's civil penalties for nepotism were the
exclusive remedy. The court rejected this argument. After
distinguishing Fausto on the basis that it involved repeal
of a judicially-implied right, the court distinguished other
cases, which had held that the CSRA was the exclusive remedy, on
the ground that those cases involved the rights of Federal
employees while Lund involved the right of the Federal
government to choose a remedy. 853 F.2d at 248.
[6] SeeVeit v. Heckler, 746 F.2d 508 (neither
the CSRA nor the Administrative Procedure Act authorizes judicial
review where the Federal employee seeks a better performance
rating); Diaz v. U.S. Postal Service, 853 F.2d 5 (1st Cir.
1988) (non-preference eligible employee, discharged for violation
of the Code of Ethical Conduct and with no right of appeal to the
Merit Systems Protection Board (MSPB), is precluded from seeking
review
of the merits of his discharge in the Federal courts);
Witzkoske v. U.S. Postal Service, 848 F.2d 70 (5th Cir.
1988) (non-preference eligible postal service employee is not
entitled to judicial review of merits of discharge for
misconduct); Booher v. U.S. Postal Service, 843 F.2d 943
(6th Cir. 1988) (discharged probationary postal service employee
has no right to judicial review); Royals v. Tisch, 864
F.2d 1565 (11th Cir. 1989) (non-preference eligible employee not
entitled to judicial review of the merits of the Postal Service
proceedings); Garrow v. Gramm, 856 F.2d 203 (D.C. Cir.
1988) (non-veteran excepted service attorney terminated for
insubordination is not entitled to judicial review); Griffith
v. FLRA, 842 F.2d 487 (D.C. Cir. 1988) (CSRA precludes
judicial review of a denial of within grade increase by IRS
employee who exhausted his administrative remedies); Hambsch
v. U.S., 848 F.2d 1228 (Fed. Cir. 1988) (Claims Court, which
has upheld MSPB's affirmance of refusal to grant administrative
leave, lacked jurisdiction based on Fausto); Gray v.
Office of Personnel Management, 771 F.2d 1504 (D.C. Cir.
1985) (Administrative Law Judges seeking reclassification to
higher grade are limited to same remedies as other government
employees).
[7] "Of course, the view of a later Congress does not establish
definitively the meaning of an earlier enactment, but it does
have persuasive value." Bell v. New Jersey, 461 U.S. 773,
784 (1983). AccordSeatrain Shipbuilding Corp. v.
Shell Oil Co., 444 U.S. 572, 596 (1980).
