V. L. COOPER, ET AL., PETITIONERS V. FRANK K. KOTARSKI No. 86-1813 In the Supreme Court of the United States October Term, 1986 The Solicitor General -- on behalf of V. L. Cooper and A. E. Navarro, civilian employees of the Naval Air Rework Facility (NARF), W. J. Tinston, Executive Officer of NARF, and J. H. Kirkpatrick, Commanding Officer of NARF -- petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statutory provisions involved Question presented Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-22a) is reported at 799 F.2d 1342. The opinion and order of the district court (App., infra, 23a-29a) are unreported. JURISDICTION The judgment of the court of appeals (App., infra, 30a) was entered on September 16, 1986. A petition for rehearing and a suggestion for rehearing en banc were denied on January 13, 1987 (App., infra, 31a). On April 6, 1987, Justice O'Connor extended the time for filing a petition for a writ of certiorari to and including May 13, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED The pertinent statutory provisions are set forth at App., infra, 32a-40a. QUESTION PRESENTED Whether a probationary employee, for whom the Civil Service Reform Act of 1978 provides limited remedies for adverse personnel actions, including referral of the Special Counsel for investigation of allegedly "prohibited personnel practices" (5 U.S.C. 1206(a)(1)), but excluding a general right of review by the Merit Systems Protection Board or any court, may bring a Bivens action against his superiors seeking money damages for alleged constitutional violations. STATEMENT 1. In the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111, Congress comprehensively revised and restated the statutory provisions, codified in various chapters of Title 5, United States Code, governing the personnel procedures of federal agencies and the rights of agency employees. In particular, Chapter 43, 5 U.S.C. 4301 et seq., requires agencies to evaluate employees' performance in light of the "critical elements" of their jobs; it authorizes removal or reduction in grade on account of unacceptable performance and sets forth the rights of employees who are removed or reduced in grade for this reason. /1/ Chapter 75, 5 U.S.C. 7501 et seq., governs adverse personnel actions (including removals, suspensions, and reductions in grade or pay) other than removals or reductions in grade under Chapter 43. /2/ It authorizes these adverse actions "for such cause as will promote the efficiency of the service" (5 U.S.C. 7513(a)), and also sets forth the procedural rights of affected employees. /3/ Both Chapters 43 and 75 provide most employees with a right to review of most adverse personnel actions by the Merit Systems Protection Board (MSPB), and for subsequent review of the MSPB's decision in the Federal Circuit. 5 U.S.C. 7703(b)(1). However, probationary employees are explicity excluded from these procedural protections. /4/ Indeed, it is a fundamental element of the federal competitive service that initial appointments and promotions to supervisory or management positions may be made on a trial basis and only become final upon completion of a probationary period. 5 U.S.C. 3321. It does not follow, however, that probationary employees are without any protections under the CSRA. While excluded from the provisions of Chapters 43 and 75, probationary employees who are wither terminated from an initial appointment or demoted from a supervisory or management position are entitled to written notice in advance of the adverse action. 5 C.F.R. 315.804; 5 C.F.R. 315.907(c). /5/ If the adverse action is allegedly based "on partisan political affiliation or marital status," probationary employees then have a right of appeal to the MSPB, and consequent judicial review (5 C.F.R. 315.908; 5 C.F.R. 315.806(b)). Probationary employees also have an additional remedy, which they share with all other federal employees. The CSRA created an Office of Special Counsel (5 U.S.C. 1204) to investigate "prohibited personnel practices" (5 U.S.C. 2302), which are broadly defined to include actions improperly motivated on grounds of discrimination, retaliation, nepotism, "whistleblower" conduct, and a wide range of other inappropriate considerations. 5 U.S.C. 2302; 5 C.F.R. 1250.3(b). The Special Counsel is authorized to investigate charges brought by probationary employees, 5 U.S.C. 1206, and if he finds reasonable grounds to believe that a prohibited personnel practice has occurred, may recommend corrective action to the agency. If the agency fails to implement the recommended corrective action, the Special Counsel may initiate a proceeding before the Board to compel such action. 5 U.S.C. 1206(c)(1)(A) and (B). /6/ Judicial review of actions taken, or not taken, by the Special Counsel is "limited, at most, to ensuring compliance with the statutory requirement that the OSC perform an adequate inquiry." Cutts v. Fowler, 692 F.2d 138, 140 (D.C. Cir. 1982). See also Carducci v. Regan, 714 F.2d 171, 175 (D.C. Cir. 1983). /7/ 2. On January 25, 1981, respondent Frank K. Kotarski, a civilian employee of the Naval Air Rework Facility in San Diego, California, was promoted on a probationary basis from a GM-12 Engineer to a GM-13 Supervisory Industrial Engineer. On December 18, 1981, within the one-year probationary period, respondent was notified that because of his unsatisfactory performance he would not be retained in the supervisory position. Respondent received a complete explanation in writing of the reasons he was not being retained as a supervisor, which included a failure to guide and direct subordinates, delay in completing work assignments, and an inability to perform duties without close supervision. On January 24, 1982, respondent was returned to his former position. Respondent attempted to obtain review of this decision by the MSPB. He asserted in a letter to the Board that his demotion was "malicious in nature and motivated by my marital status, living arrangements and other factors unrelated to my performance on the job" (C.A. App. Exh. 7-C). Respondent also wrote to the Office of the Special Counsel, alleging that "the adverse personnel action taken against me was motivated in whole or in part by my living arrangement with (co-worker) Ms. Janice Elaine Magana. I allege that the relationship of a single man and woman living together is incompatible with managements (sic) position in this area." C.A. App. Exh. 7-D. The MSPB found no jurisdiction to review respondent's complaint. The Office of the Special Counsel, however, conducted an investigation, "interviewing several witnesses, reviewing files and gathering documentary evidence," and subsequently informed respondent that the investigation had failed to yield evidence to support his allegations. "The evidence was insufficient to establish that those matters (alleged) were significant factors in your demotion. We found stronger evidence that you were demoted based on management's perceptions that your performance as a supervisor was deficient" (C.A. App. Exh. 8-B). 3. Following denial of his claims by the Special Counsel, respondent filed the present lawsuit, alleging that respondent's supervisors, V. L. Cooper and A. E. Navarro, and his commanding officers at the Navy Rework Facility, W. J. Tinston and J. H. Kirkpatrick, had violated his First, Fifth and Ninth Amendment rights by demoting him to the GM-12 position. /8/ Respondent's complaint alleged that his demotion was due to his "private relationship with his girlfriend," a relationship which, respondent asserted, his supervisors viewed as "morally wrong." He also alleged that his failure to be promoted was punishment for speaking out and challenging certain policies of his supervisors, particularly in retaliation for his actions in support of an EEO complaint brought by his girlfriend (see note 8, supra). Damages in the amount of $500,000 were sought from the defendants sued in their individual capacities, under the authority of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). The lawsuit also sought reinstatement, back pay, and a judgment that respondent's demotion had been arbitrary and capricious under the APA and had violated his right to due process by taking property (i.e., an expectation that his probationary position would turn into a permanent one) without providing due process of law. The district court granted the government's motion to dismiss. The court held that since plaintiff alleged that his demotion was in retaliation for his support of a fellow worker's EEO complaint, the sole remedy available to him was his action under 42 U.S.C. 2000e-16. The court also held that, even if respondent's lawsuit could be brought, a Bivens remedy was unavailable under this Court's decision in Bush v. Lucas, 462 U.S. 367 (1983). "In Bush, the Court indicated that where a federal personnel decision is at issue, the presence of the comprehensive civil service scheme precludes the grant of Bivens relief" (App., infra, 27a). The court rejected respondent's argument that Bush was distinguishable because the plaintiff in Bush had a full panoply of procedural rights which are not available to probationary employees. Noting that respondent had received all the review provided by Congress for probationary employees, the court declined to override Congress's "reasoned choice that personnel decisions as to probationary employees should be governed by fewer impediments to managerial discretion." App., infra, 28a. 4. A divided panel of the court of appeals reversed, It held, first, that Title VII is not an exclusive remedy for the wrongs alleged in respondent's Bivens complaint. It also stated that respondent's pursuit of a Title VII action could not prevent him from bringing a Bivens suit "based on alleged constitutional infractions having nothing to do with Title VII." App., infra, 5a. The court of appeals further held that Bush v. Lucas does not prevent a Bivens action by respondent against his supervisors and commanding officers. In the majority's view, Bush, "cannot be read apart from its pervasive emphasis on the remedies provided by Congress for the complaining employee in that case * * *." App., infra, 9a. While admitting that "(t)his ruling presents a much closer question that the Title VII issue" (App., infra, 6a), the court of appeals determined that the remedies available to the respondent as a probationary employee were not "meaningful" within the meaning of Bush (App., infra, 11a). The court acknowledged that respondent's charges had been investigated by the MSPB's Special Counsel and found wanting. But because investigation by the Special counsel is not "part of a system of enforceable relief for constitutional violations" (ibid.), the court refused to credit this procedure as protecting a probationary employee's rights. "Unlike the complainant in Bush, the probationary employee has no enforceable right, and no judicial review, even if he or she demonstrates a constitutional violation" (ibid.). The court of appeals conceded that "management must retain great flexibility in determining that a probationary employee ought not to be granted permanent status" (App., infra, 8a), and that it may be "anomolous to give probationary employees a greater protection of their constitutional rights, by way of a Bivens action, than is available to fully tenured employees, who are confined to their civil service remedies" (App., infra, 13a). Also, the court noted decisions of other courts that were in direct conflict with its own view (App., infra, 7a). It nonetheless reasoned that Congress "could not have intended such an untoward result" as to "deprive probationary employees of all meaningful protection for their constitutional rights" (App., infra, 13a), and therefore ruled that respondent could maintain a Bivens action for money damages against his supervisors and commanding officers. /9/ Judge Hall, in dissent, argued that the majority had ignored the holding of this Court in Bush v. Lucas, which stressed the comprehensiveness of the remedies provided by Congress for federal employees and did not invite courts to second-guess the adequacy of those remedies. Judge Hall noted that Congress had made a deliberate decision to limit the remedies of probationary employees, but had not left them without any protection. "Congress has determined that review by the Special Counsel and in certain cases by the Board sufficiently deters constitutionally impermissible personnel decisions while maintaining morale and efficiency." App., infra, 21a. Thus, "Kotarski cannot claim that 'it is damages or nothing.' Bivens, 403 U.S. at 410 (Harlan, J., concurring)" (ibid.). Judge Hall concluded (ibid.): Congress has enacted a scheme carefully tailored to balance the many competing concerns implicated in regulating federal employment * * * In crafting the system, Congress has decided that different levels of protection are required for rights of differing magnitude * * * Bush has stated that Congress is in the better position to decide whether a damage remedy is appropriate. On January 13, 1987, the panel voted unanimously to deny rehearing, and no judge of the Court voted in favor of rehearing en banc. REASONS FOR GRANTING THE PETITION The court of appeals has incorrectly decided a question of great and recurrent practical importance to the federal government and its supervisory employees. Its decision is inconsistent with decisions of several other circuits holding that federal employees with limited remedies under the CSRA may not bring a Bivens action seeking money damages. This Court should grant the petition to resolve that inconsistency and to answer the important question of federal jurisdiction raised by this case. /10/ 1. The court of appeals' decision that employees with limited remedies under the CSRA may supplement those remedies with a Bivens action has major ramifications. We are advised by OPM that the government employs more than 64,000 probationary employees. We are also advised that there are more than 30,000 excepted service employees with limited remedies similar to those of probationary employees (see 5 U.S.C. 4303(e); 5 U.S.C. 7511(a)(1)). /11/ The decision below opens the way for a Bivens action by all such employees in response to any dismissal, reduction in grade or pay, or suspension, whenever that action is alleged to violate the Constitution. It also opens the door to Bivens actions in response to minor adverse personnel decisions, such as suspensions of less than 15 days, as to which the CSRA denies an MSPB appeal remedy to all employees in most circumstances. 5 U.S.C. 7503. For all three groups -- probationary employees, excepted service employees, and employees subjected to minor adverse personnel decisions -- the primary remedy for most alleged wrongs is a complaint by the employee to the Office of Special Counsel, the very remedy that the court of appeals here found to be inadequate and, thus, supplemented with a Bivens remedy. This new Bivens remedy will foster lenghty and expensive litigation in federal district courts and hinder, through it in terrorem effect on supervisors, the efficient management of the civil service (Bush, 462 U.S. at 388-389). Congress made a deliberate decision to restrict the remedies of probationary employees, noting 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 (probationary) period." S. Rep. 95-969, 95th Cong., 2d Sess. 45 (1978). Similarly, Congress made deliberate decisions to grant employees in the excepted service lesser procedural rights under the CSRA and to provide limited remedies for minor adverse actions. These congressional determinations have been undermined by the ruling of the court of appeals. 2. The court of appeals' decision is inconsistent with this Court's decision in Bush v. Lucas, supra. In Bush, the plaintiff sought a Bivens remedy against his federal employer for alleged First Amendment violations. In its analysis, this Court assumed that the "civil service remedies were not as effective as an individual damages remedy and did not fully compensate (plaintiff) for the harm he suffered" (462 U.S. at 372 (footnote omitted)) -- that is, that "a federal right has been violated and Congress has provided a less than complete remedy for the wrong" (id. at 373). It concluded, however, that the proper focus for analysis was not on "what remedy the court should provide for a wrong that would otherwise go unredressed," but rather on "whether an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, should be augmented by the creation of a new judicial remedy for the constitutional violation at issue" (id. at 388). The Court held that, in light of the comprehensive procedural and substantive provisions of the civil service laws governing the employment relationship between the government and its employees -- provisions which, the Court emphasized, had been carefully constructed by Congress over many years -- it would be inappropriate to create a new Bivens remedy (id. at 388-390; see also id. at 390-392 (Marshall, J., concurring)). The same reasoning applies to the instant case. Although the plaintiff in Bush enjoyed the full panoply of procedural protections available under the CSRA, that fact was not crucial to the Court's holding. Rather, the Court deferred to "Congress's ability to make an evenhanded assessment of the desirability of creating a new remedy for federal employees * * *" (462 U.S. at 389). Congress has deliberately and sensibly decided to provide different levels of protection for different groups of employees. Probationary employees, by definition, lack job tenure, and it would be almost a contradiction in terms to erect procedures that make it difficult to dismiss or demote such employees. It would indeed be anomolous therefore, and wreak havoc upon the remedial scheme crafted by Congress, to grant probationary employees a Bivens remedy for adverse personnel actions denied to their tenured counterparts. As in Bush, "the ultimate question on the merits in this case may appropriately be characterized as one of 'federal personnel policy'" (id. at 380-381). And, again as in Bush, the court should "decline to create a new substantive legal liability without legislative aid * * * because * * * Congress is in a better position to decide whether or not the public interest would be served by creating it" (id. at 390 (citation and quotation marks omitted)). The remedies afforded the respondent here were precisely as Congress intended them to be. Respondent, in addition to receiving notice of his demotion and a statement as to why he was being demoted, invoked the jurisdiction of the MSPB's Special Counsel. As Judge Hall explained in her dissent (App., infra, 20a-21a), under current law the MSPB's Special Counsel is empowered to investigate and seek correction of prohibited personnel practices (5 U.S.C. 1206(a)(1)), including charges of reprisal for the "disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences a violation of any law, rule or regulation * * *" (5 U.S.C. 2302(b)(9)(A)). Congress specifically designed this remedy to protect employees' constitutional rights (S. Rep. No. 95-969, 95th Cong., 2d Sess. (1978)), and the court of appeals erred in finding it inadequate. The court should instead have deferred to Congress's judgment, schooled in constant oversight of the federal personnel system. 3. There is a sharp split among the circuits on the question whether federal employees with limited remedies under the CSRA should be permitted to supplement those remedies with a Bivens action against their supervisors. Three circuits have held that a Bivens action is foreclosed by this Court's decision in Bush. See Pinar v. Dole, 747 F.2d 899, 905 (4th Cir. 1984), cert. denied, 471 U.S. 1016 (1985) (probationary employee); Palermo v. Rorex, 806 F.2d 1266, 1270-1271 (5th Cir. 1987) (excepted service); Wells v. FAA, 755 F.2d 804, 810 (11th Cir. 1985) (minor adverse action). See also Gleason v. Malcom, 718 F.2d 1044, 1047-1048 (11th Cir. 1983); Braun v. United States, 707 F.2d 922, 926 (6th Cir.), cert. denied, 464 U.S. 991 (1983); Broadway v. Block, 694 F.2d 979, 985 (5th Cir. 1982); Harding v. USPS, 618 F. Supp. 1330, 1331 n.2, 1332 (S.D. W.Va. 1985); Cazalas v. Dep't of Justice, 569 F. Supp. 213, 228-229 (E.D. La. 1983), aff'd, 731 F.2d 870 (5th Cir. 1984), cert. denied, 469 U.S. 1207 (1985); Francisco v. Schmidt, 575 F. Supp. 1200, 1202 (E.D. Wis. 1983). Three circuits, including the Ninth Circuit in this case, have concluded that when a federal employee's only remedy under the CSRA is a complaint to the Special Counsel, courts are justified in implying an additional Bivens remedy for such employees. McIntosh v. Weinberger, 810 F.2d 1411 (8th Cir. 1987); Egger v. Phillips, 710 F.2d 292, 297-299 (7th Cir.), cert. denied, 464 U.S. 918 (1983). See also Freedman v. Turnage, 646 F. Supp. 1460 (W.D. N.Y. 1986); Harris v. Moyer, 620 F. Supp. 1262 (N.D. Ill. 1985). This conflict over the correct interpretation of Bush is pointedly illustrated by two irreconcilable decisions handed down by two panels of the District of Columbia Circuit on the same day. Hubbard v. EPA, No. 85-5145 (Dec. 5, 1986); Spagnola v. Mathis, No. 84-5530 (Dec. 5, 1986). Both decisions have been ordered reheard en banc. In Hubbard, an applicant who was refused a job at EPA petitioned the MSPB's Special Counsel, asserting that he was denied employment because of a prohibited personnel practice. He also brought suit alleging, inter alia, a First Amendment Bivens claims against an EPA hiring official. A panel of the D.C. Circuit (Judge Silberman, joined by Judge (now Justice) Scalia with Chief Judge Wald concurring in the judgment) held that Hubbard had no Bivens remedy under Bush v. Lucas, supra, and was confined to the administrative remedy that Congress regarded as appropriate in light of his status. The panel dismissed the Ninth Circuit's decision in Cooper v. Kotarski as "unpersuasive," stating that "we believe that decision misinterprets Bush and fails to consider fully the disruptive influence of Bivens actions on the civil service." In Spagnola, a second panel (Judges Wright and Wald with Silberman dissenting) held that the very same administrative remedy at issue in Hubbard -- i.e., a complaint to the MSPB's Office of the Special Counsel -- was inadequate to preclude a Bivens remedy for Spagnola's claim that he was harrassed and not promoted in violation of his First Amendment rights. The panel, expressly endorsing the Ninth Circuit's analysis in the instant case, read this Court's decision in Bush as applying only to situations where a court determines that the remedies available to the employee are adequate and meaningful. These decisions illustrate how intractably divided judicial authority is over the application of Bush to federal employees with limited remedies under the CSRA. This sharp conflict in the circuits has produced a significant disparity in the treatment of federal employees, depending solely upon where they reside. Because the question presented is of great importance to the integrity of the federal civil service, the Court should grant certiorari to resolve the conflict. /12/ CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General DONALD B. AYER Deputy Solicitor General MICHAEL K. KELLOGG Assistant To The Solicitor General BARBARA L. HERWIG RICHARD A. OLDERMAN Attorneys MAY 1987 /1/ Chapter 43 provides rights to notice, representation by an attorney, "a reasonable time to answer orally and in writing," and a written decision meeting certain standards. See 5 U.S.C. 4303(b)(1). It also provides that "any employee who is a preference eligible (i.e., a veteran (see 5 U.S.C. 2108(3))) or is in the competitive service" may appeal a removal or reduction in grade under Chapter 43 to the Merit Systems Protection Board. 5 U.S.C. 4303(e). /2/ Chapter 75 thus differs from Chapter 43 in that all adverse actions under Chapter 43 relate to inadequate job performance as measured by ratings of performance on the critical elements of employees' jobs, whereas actions taken under Chapter 75 may relate to inadequate job performance or be based on other sorts of inadequacies, including misconduct. See Lovshin v. Department of the Navy, 767 F.2d 826 (Fed. Cir. 1985), cert. denied, No. 85-882 (Apr. 7, 1986). /3/ Chapter 75 is similar to Chapter 43 in providing rights to notice, representation by counsel, a reasonable time to answer, and a written decision. 5 U.S.C. 7503, 7513(b). It also provides that "an employee against whom an action (more serious than a 14 day suspension) is taken * * * is entitled to appeal to the Merit Systems Protection Board." 5 U.S.C. 7513(d); see also 5 U.S.C. 7503. /4/ Section 4303(f) explicitly excepts from the procedural protections of Section 4303 individuals promoted to supervisor or manager on a probationary basis, or serving a probationary period under an initial appointment. Chapter 75 explicitly excludes probationary employees from the definition of "employee" to whom its provisions apply. 5 U.S.C. 7511(a)(1); see 5 U.S.C. 7501. /5/ If the termination of a probationary employee from an initial appointment is based on conditions arising before the commencement of service, procedures similar to those in Chapters 43 and 75, including MSPB appeal and judicial review, are provided. 5 C.F.R. 315.805. /6/ The Special Counsel also has the authority to initiate disciplinary proceedings before the Board against a manager guilty of a prohibited personnel practice. 5 U.S.C. 1206(g). The Board may discipline the manager by ordering "removal, reduction in grade, or debarment from Federal employment for a period not to exceed 5 years, suspension, reprimand, or an assessment of a civil penalty not to exceed $1,000." 5 U.S.C. 1207(b). /7/ There is a separate provision for judicial review of allegations of discrimination. 5 U.S.C. 7703(b)(2) provides that cases involving allegations of discrimination brought by federal employees are to be filed as provided in Section 717(c) of the Civil Rights Act of 1964, 42 U.S.C. 2000e-16(c), Section 15(c) of the Age Discrimination in Employment Act of 1967, 29 U.S.C. 633a(c), and Section 16(b) of the Fair Labor Standards Act of 1938, 29 U.S.C. 216(b), as applicable. 5 U.S.C. 7702 makes careful provision for all such claims, as well as for cases arising under the Rehabilitation Act of 1973, 29 U.S.C. 791, within the scheme of review by the MSPB. Probationary employees are entitled to bring discrimination charges under these statutes. /8/ Respondent also filed a second lawsuit, making essentially the same factual allegations and asserting a violation of Section 717 of the Civil Rights Act of 1964, 42 U.S.C. 2000e-16. Respondent swore, in an affidavit filed with the court in this second suit, that "my involvement in the EEO complaint of Janice E. Magna was the primary reason for my demotion from a GA-13 branch head to a GM-12 Industrial Engineering position." C.A. App. Exh. 7-B. This lawsuit is presently pending in federal district court. /9/ The panel also (a) found that review of respondent's demotion was not available under the APA; (b) remanded to the district court the questions of official immunity and whether there had been a due process violation; and (c) ruled that the district court had no jurisdiction over respondent's claim to reinstatement and back pay, which exceeded $10,000. The panel left to the discretion of the lower court whether to transfer that claim to the Claims Court under 28 U.S.C. 1631. /10/ Petitioner does not seek review of the court of appeals' holding that respondent's Bivens action was not barred by the exclusivity of his remedy under Title VII of the Civil Rights Act. /11/ The "'excepted service' consists of those civil service positions which are not in the competitive service or the Senior Executive Service" (5 U.S.C. 2103(a)). Excepted service positions include positions for which it is not practical to hold competitive examinations, such as chaplains and attorneys (5 C.F.R. 213.3102(a) and (d)) and "positions which are policy-determining or which involve a close and confidential working relationship with the head of an agency or other key appointed officials" (5 C.F.R. 213.3301). Positions may be placed in the excepted service by statute, by the President, or by the Office of Personnel Management. 5 U.S.C. (& Supp. II) 3301, 3302(1); Exec. Order No. 10,577, 3 C.F.R. 218 (1954-1958 Comp.); see 5 C.F.R. 213.101(a). /12/ The instant case raises issues similar to those presented in United States v. Fausto, cert. granted, No. 86-595 (Jan. 12, 1987). Fausto presents the question whether individuals in the excepted service, who also have limited remedies under the CSRA, may sue the United States in the Claims Court under the Tucker Act. We argue in Fausto, as we do here, that the CSRA prempts other, more general remedies. APPENDIX