UNITED STATES OF AMERICA, PETITIONER V. JOSEPH A. FAUSTO No. 86-595 In the Supreme Court of the United States October Term, 1986 On Writ Of Certiorari To The United States Court Of Appeals For The Federal Circuit Brief for the United States TABLE OF CONTENTS Question presented Opinions below Jurisdiction Statutory provisions involved Statement Summary of argument Argument: The Civil Service Reform Act sets out the exclusive remedies for federal employees who have suffered adverse personnel actions A. A comprehensive and specific remedial statute preempts more general remedies B. The CSRA is a comprehensive statute that governs the procedures to be followed in adverse personnel actions involving federal employees C. As other courts of appeals have recognized, the CSRA preempts recovery under more general statutes D. The fact that respondent cannot obtain judicial review under the CSRA precludes, rather than supports, permitting him to bring suit under the Tucker Act Conclusion OPINIONS BELOW The opinions of the court of appeals (Pet. App. 1a-8a and Pet. App. 10a-23a (on rehearing)) are reported at 783 F.2d 1020 and 791 F.2d 1554, respectively. The opinion of the Claims Court (Pet. App. 24a-29a) is reported at 7 Cl. Ct. 459. JURISDICTION The judgment of the court of appeals (Pet. App. 9a) was entered on February 10, 1986, and a timely suggestion of rehearing en banc was denied (Pet. App. 23a), with an accompanying order, on May 14, 1986. The petition for a writ of certiorari was filed on October 10, 1986, and was granted on January 12, 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 Pet. App. 30a-39a. QUESTION PRESENTED The Civil Service Reform Act of 1978 provides a comprehensive set of remedies, incuding in specified circumstances review by the Merit Systems Protective Board and judicial review of the action of the Board, for federal civil service personnel who suffer adverse personnel actions. The question presented is whether non-veteran personnel in the "excepted service," for whom the Act provides no right of review, may obtain judicial review of adverse personnel actions under the Tucker Act, 28 U.S.C. 1491. STATEMENT 1. Respondent was hired in January 1978 to work at a camp in Virginia operated by the Fish and Wildlife Service (FWS of the Department of the Interior for a period to last no longer than the date the camp closed or September 30, 1982, whichever was earlier. Respondent's position was in the "excepted service," which "consists of those civil service positions which are not in the competitive service (see 5 U.S.C. 2102) or the Senior Executive Service (see 5 U.S.C. 3132(a)(2))." 5 U.S.C. 2103(a). Excepted service positions include positions for which it is not practical to hold competitive examinations, such as positions 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). /1/ Respondent's position was classified as an excepted service position because it was impractical to hold examinations for the position since it was a temporary position. 5 C.F.R. 213.3302(hh) (1978). In November 1980 respondent was advised that the FWS intended to dismiss him for a number of reasons, including the repeated unauthorized use of a government vehicle. After replying to the charges against him, respondent was removed from his position in January 1981. In September 1981 the camp at which respondent had been employed was closed. Pet. App. 24a-15a. It subsequently came to the attention of the FWS that respondent had not been advised of his right, under regulations issued by the Department of the Interior, to file a grievance contesting his removal. /2/ The FWS then provided him with the opportunity to do so and, in June 1982, the FWS concluded that removal had been too harsh a penalty for his misconduct. In lieu of removal, the FWS imposed upon respondent the statutorily required minimum penalty for misuse of a government vehicle, a 30-day suspension. /3/ The FWS then awarded respondent back pay from February 15, 1981, the date his 30-day suspension would have ended, to September 18, 1981, the date the camp closed. Respondent challenged the grievance decision, claiming that he was entitled to back pay for the period covered by the 30-day suspension and from the date the camp closed to the date of a decision in his favor, but the decision of the FWS was sustained in each level of review provided by the Department of the Interior's regulations. Pet. App. 25a. 2. After it was determined that respondent, as an employee in the excepted service, had no right to appeal the Department of the Interior's decision to the Merit Systems Protection Board (MSPB) (see Pet. App. 27a; Fausto v. Department of Interior, 738 F.2d 454 (Fed. Cir. 1984) (Table)), he filed suit in the Claims Court, alleging jurisdiction under the Back Pay Act. 5 U.S.C. 5596. The government filed a motion for summary judgment contending that the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111, which provides an elaborate scheme for administrative and judicial review of adverse actions taken against federal employees, precludes remedies under more general statutes for such adverse actions. The Claims Court agreed that the CSRA "enumerates an all-inclusive catalogue of remedies for adverse personnel actions" taken against federal employees (Pet. App. 26a) and that an employee may challenge an adverse personnel action only in accordance with the "comprehensive scheme for review of federal employee personnel actions" established by the CSRA (ibid.). The Claims Court held that respondent "may not assert jurisdiction under the Back Pay Act for review of his claims in this court" (id. at 27a). It held in the alternative that, if respondent could maintain any claim in the Claims Court, he was entitled to no more back than he had received from the FWS. /4/ 3. The Federal Circuit reversed. It stated (Pet. App. 3a-4a), citing Greenway v. United States, 163 Ct. Cl. 72 (1963), that prior to the enactment of the CSRA an excepted service employee could seek redress under the Tucker Act, 28 U.S.C. 1491. /5/ The court described the holding in Greenway as being that "a non-veteran, excepted appointment, probationary employee covered by (a) valid departmental regulation (was) entitled to trial on (the) merits for alleged arbitrary dismissal" (Pet. App. 3a-4a). The court recognized (id. at 3a) that it had held in McClary v. United States, 775 F.2d 280 (Fed. Cir. 1985), that the CSRA barred a competitive service employee from challenging an adverse action under the Tucker Act. The court distinguished McClary on the ground that the CSRA, which provides for judicial review of major adverse actions, such as removals and demotions, taken against competitive service employees (5 U.S.C. 4303(e) (Pet. App. 33a-34a); 5 U.S.C. 7513(d) (Pet. App. 38a)), does not provide for judicial review of adverse actions taken against excepted service employees such as respondent. The court of appeals concluded that neither the CSRA nor its legislative history gives a clear indication of Congress's intention to repeal the right of excepted service employees to bring suit under the Tucker Act challenging adverse actions, and held that the Claims Court had jurisdiction over respondent's claim. Pet. App. 3a-6a. On the merits, while the court of appeals agreed with the Claims Court that respondent was not owed back pay for the period after the camp closed, it held that respondent was entitled to back pay for the period covered by the 30-day suspension (id. at 7a-8a). In the court of appeals' view, FWS'S "belated recognition" of respondent's grievance rights barred it from imposing that suspension (id. at 8a). /6/ The court declined the government's suggestion of rehearing en banc. However, the panel treated the suggestion as a request for rehearing by the panel and issued a second opinion reaffirming its decision. The court rejected the contention that its decision was contrary to its decision in United States v. Connolly, 716 F.2d 882 (Fed. Cir. 1983) (en banc), cert. denied, 465 U.S. 1065 (1984), where the court concluded that probationary employees, who are treated much like excepted service employees under the CSRA in that they generally have no express right to judicial review of adverse actions taken against them, may not obtain judicial review of adverse actions. The court stated that the issue in Connolly was whether the probationary employee had an implied right of action under the CSRA, not whether he could obtain review under a general statute such as the Tucker Act (Pet. App. 20a-21a). The court also rejected the government's contention that its decision was contrary to numerous decisions of other courts of appeals dismissing attempts by federal employees to challenge adverse personnel actions under general statutes rather than the CSRA. The court stated that in the other cases "the employee was subject to the adverse action provisions of the CSRA and was seeking some sort of additional remedy" (Pet. App. 22a). This case was different, the court said, since respondent "was not subject to the adverse action provisions of the CSRA because he was in the excepted service" (ibid.). /7/ SUMMARY OF ARGUMENT This Court has repeatedly held that "a precisely drawn, detailed statute pre-empts more general remedies." Brown v. General Services Administration, 425 U.S. 820, 834 (1976). The Civil Service Reform Act (CSRA) is a detailed statute that provides a comprehensive scheme of remedies for adverse actions against federal employees. Congress clearly intended the CSRA'S judicial review provisions to replace the patchwork of decisions authorizing review under more general statutes. The CSRA contains three relevant sets of provisions. In each, the rights of non-veterans in the excepted service -- such as respondent -- are dealt with advertently, and in each case judicial review is deliberately made largely unavailable to employees in that category. Chapter 43 of Title 5 provides in general that all non-probationary federal employees who are dismissed or demoted for unacceptable job performance have certain procedural rights, but it gives only competitive service employees and veterans in the excepted service the right to review of Chapter 43 actions before the Merit Systems Protection Board (MSPB) and the Federal Circuit. Chapter 75 provides that non-probationary employees in the competitive service and veterans in the excepted service who are subjected to major adverse actions to promote the efficiency of the service may obtain review in the MSPB and the Federal Circuit. However, non-veterans in the excepted service are excluded from coverage under Chapter 75 unless the Office of Personnel Management elects to include them, which in general it has not done. And Chapter 23 provides that non-veterans in the excepted service (and other federal employees) may bring claims that they were subjected to "prohibited personnel practices," which are 11 "heinous" practices enumerated in the statute, to the MSPB'S Office of Special Counsel. The Special Counsel is charged with investigating prohibited personnel practices and, if she deems it appropriate, may bring such claims before the MSPB; but respondent has not alleged that he was subjected to any "prohibited personnel practice." As a non-veteran in the excepted service who did not allege that he was subjected to a prohibited personnel practice, respondent has no right to judicial review under any provision of the CSRA. It is also clear that respondent has no implied right of action under the CSRA. See, e.g., Smith v. MSPB, 813 F.2d 1216 (Fed. Cir. 1987). Every other court of appeals that has considered the question has concluded that the CSRA precludes federal employees from obtaining review under more general statutes. A number of courts have held that the specific provision of the CSRA demonstrate congressional intent to preclude review under the Administrative Procedure Act (APA). See, e.g., Harrison v. Bowen, No. 86-5168 (D.C. Cir. Apr. 3, 1987); Carducci v. Regan, 714 F.2d 171 (D.C. Cir 1983). The same reasoning precludes review under the Tucker Act. Indeed, the Federal Circuit held in McClary v. United States, 775 F.2d 280 (1985), that competitive service employees have no right to review of adverse personnel actions under the Tucker Act because the CSRA remedies are, as to them, exclusive. That decision is plainly correct, and the court below did not disagree with it. The court below sought to distinguish McClary on the ground that whereas competitive service employees have a right to judicial review under the CSRA, which should not be enlarged by the Tucker Act, non-veterans in the excepted service are "not subject to the adverse action provisions of the CSRA" (Pet. App. 22a). But, first, the premise is wrong: non-veterans in the excepted service clearly are subject to the CSRA, and they have limited rights under it; these rights simply do not include MSPB or judicial review in the present circumstances. Second, as the court in Harrison stated, it makes no sense to conclude that because Congress has provided more limited rights to non-veterans in the excepted service than it has to competitive service employees and veterans, non-veterans in the excepted service have a right to proceed under the Tucker Act when those other employees may not. The court of appeals' decision leads, as the court in Carducci concluded in an analogous case, to the anomalous result that non-veterans in the excepted service are permitted to go directly to court, while competitive service employees and veterans must first present their claims to the MSPB. Contrary to the court below, the fact that Congress has made it clear that non-veterans in the excepted service may not obtain judicial review of adverse actions under the CSRA supports the conclusion that they should not be allowed to obtain judicial review, more quickly than other employees, under more general statutes. ARGUMENT THE CIVIL SERVICE REFORM ACT SETS OUT THE EXCLUSIVE REMEDIES FOR FEDERAL EMPLOYEES WHO HAVE SUFFERED ADVERSE PERSONNEL ACTIONS A. A Comprehensive And Specific Remedial Statute Preempts More General Remedies "(I)t is (a) familiar law that a specific statute controls over a general one." Bulova Watch Co. v. United States, 365 U.S. 753, 758 (1961). In 1882 this Court stated that "(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 National Bank v. United States, 107 U.S. 445, 451. More recently, this Court noted that "(i)n a variety of contexts the Court has held that a precisely drawn, detailed statute pre-empts more general remedies." Brown v. GSA, 425 U.S. 820, 834 (1976). In Brown v. GSA the Court held that Section 717 of the Civil Rights Act of 1964, 42 U.S.C. 2000e-16, "provides the exclusive judicial remedy for claims of discrimination in federal employment" (425 U.S. at 835), so that there was no remedy for such claims under the more general provisions of the federal-question jurisdiction statute, 28 U.S.C. 1331, the Declaratory Judgment Act, 28 U.S.C. 2201-2202, or the Civil Rights Act of 1866, 42 U.S.C. 1981 (425 U.S. at 823-824). In so holding, the Court reviewed a host of decisions in which the Court had "consistently held that a narrowly tailored employee compensation scheme preempts the more general tort recovery statutes" (id. at 834-835). The Tucker Act, 28 U.S.C. 1491, under which the court of appeals held that a non-CSRA remedy could be provided in this case, is a general grant of jurisdiction. Entitled "Claims against United States generally," it provides jurisdiction for claims against the federal government based on the Constitution, federal statutes, regulations of executive departments, and contracts with the federal government (see note 5, supra). In a prior case under the Tucker Act, McClary v. United States, 775 F.2d 280 (1985), the Federal Circuit denied review of an adverse personnel action taken against a competitive service employee on the ground that the CSRA precludes non-CRSA remedies for adverse personnel actions. In a case decided subsequent to the decision here, the same court held that a probationary employee was precluded from seeking a remedy under the Tucker Act. Rosano v. United States, 800 F.2d 1126 (Fed. Cir. 1986) (per curiam). In a number of similar cases in which federal employees have sought review of adverse actions under the Administrative Procedure Act (APA), 5 U.S.C. (& Supp. III) 551 et seq., the courts of appeals have without exception concluded that the CSRA remedies are exclusive and preclude APA review. See, e.g., Pinar v. Dole, 747 F.2d 899(4th Cir. 1984), cert. denied, 471 U.S. 1016 (1985); Veit v. Heckler, 746 F.2d 508 (9th Cir. 1984); Carducci v. Regan, 714 F.2d 171 (D.C. Cir. 1983). As we will show, these decisions are correct and the court below was wrong: the CSRA is a comprehensive and specific statute governing adverse personnel actions against federal employees. Its structure and provisions demonstrate congressional intent to deny any other remedy -- to "withdraw the subject" of adverse personnel actions from review under more general statutes such as the Tucker Act and the APA. B. The CSRA Is A Comprehensive Statute That Governs The Procedures To Be Followed In Adverse Personnel Actions Involving Federal Employees The 1978 Senate Report on the CSRA described the civil service system as "an outdated patchwork of statutes and rules built up over almost a century." S. Rep. 95-969, 95th Cong., 2d Sess. 3. It stated that "(a)ssaults on the merit system have taken place despite, and in some instances because of, the complicated rules and procedures that have developed over the last century" (ibid.). The Report began by stating that "(t)he changes in law which are proposed in S. 2640 (the bill that became the CSRA) will constitute the most comprehensive reform of the Federal work force since passage of the Pendleton Act in 1883" (id. at 1). It reiterated that, despite enormous growth in the federal workforce, "no systematic congressional review or revision of the system has been attempted in close to 100 years. S. 2640, as amended, is that long overdue, comprehensive reform." Ibid. This Court has recognized that, in enacting the CSRA, Congress "comprehensively overhauled the civil service system." Lindahl v. OPM, 470 U.S. 768, 773 (1985). 1. Prior to the enactment of the CSRA, the United States Code provided that competitive service employees were entitled to notice before they were removed or suspended without pay. 5 U.S.C. (1976 ed.) 7501. It also provided that veterans were entitled to appeal adverse actions to the Civil Service Commission. 5 U.S.C. (1976 ed.) 7701. /8/ Competitive service employees other than veterans were not given the right to appeal to the Commission by statute, but that right was extended to them by Executive Order No. 11,491, Section 22, reprinted in 5 U.S.C. (1976 ed.) 7301 note, at 580. Judicial review of adverse actions was not provided by statute, but, as the Senate Report on the CSRA noted, "(c)urrently employees who wish to challenge Commission decisions generally file their claims with U.S. District Courts" (S. Rep. 95-969, supra, at 63). Those courts provided review under the APA. See, e.g., Polcover v. Secretary of Treasury, 477 F.2d 1223 (D.C. Cir.), cert. denied, 414 U.S. 1001 (1973). Review was also provided in the former Court of Claims (although the congressional reports on the CSRA did not refer to review there) under standards similar to those established by the APA. See, e.g., Wathen v. United States, 527 F.2d 1191 (Ct. Cl. 1975), cert. denied, 429 U.S. 821 (1976). The Senate Report on the CSRA expressed strong congressional dissatisfaction with that situation. The Report said that there was a "widely held impression * * * that a government employee cannot be fired, regardless of unacceptable conduct or work performance" (S. Rep. 95-969, supra, at 9). The Report commented that "while it is technically possible to fire unsatisfactory employees, appeals processes are so lengthy and complicated that managers often avoid taking disciplinary action" (ibid.). The Report stated that, given the large number of district courts, there were "wide variations in the kinds of decisions which have been issued on the same or similar matters" (id. at 63), and it stated that the Senate bill proposed to cure that deficiency by providing for review of orders issued by the MSPB in the courts of appeals rather than the district courts (ibid.). The Senate also expressed its displeasure with decisions overturning adverse actions on inadequate grounds, stating that "the Board and the courts should only reverse agency actions under the new procedures where the employee's rights under this title have been substantially prejudiced" (id. at 51; see also id. at 64). 2. The CSRA made sweeping changes. It abolished the Civil Service Commission, replacing it with the Office of Personnel Management (OPM), which has "central responsibility for executing, administering, and enforcing civil service rules and regulations" (S. Rep. 95-969, supra, at 5; see 5 U.S.C. 1104-1105), and the MSPB, which was vested with authority "to adjudicate employee appeals and protect the merit system" (S. Rep. 95-969, supra, at 2; see 5 U.S.C. 1205). To reduce variation in decisions, the CSRA provides for review of MSPB orders not involving claims of discrimination only in the Federal Circuit. /9/ To stop reversals of agency actions on inadequate grounds, the CSRA contains a "harmful error rule" providing that adverse actions should be sustained, despite procedural errors, unless the errors prejudiced the employee. 5 U.S.C. 7701(c) (2)(A); see Cornelius v. Nutt, 472 U.S. 648, 657-658 (1985); 5 C.F.R. 1201.56(c)(3). The CSRA provisions governing adverse actions are comprehensive. The statute created a new procedure under which actions could be taken against employees whose work performance was unacceptable in Chapter 43 of Title 5; it revised the procedures in Chapter 75 of Title 5 relating to adverse actions taken to promote the efficiency of the service; and it created a new Office of Special Counsel of the MSPB (5 U.S.C. 1206) to investigate allegations that agencies had committed "prohibited personnel practices" (5 U.S.C. 2302), which are certain specified practices "infected by particularly heinous motivations or disregard of law" (Carducci v. Regan, 714 F.2d 171, 175 (D.C. Cir. 1983)). Each of these three provisions contains an express indication of how excepted service employees are to be treated and makes it clear that they were deliberately denied judicial review of personnel actions taken against them. Chapter 43, 5 U.S.C. (& Supp. III) 4301 et seq., for which there was no predecessor, deals with employee performance. It 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 unacceptable performance. Chapter 43 defines "employee," for purposes of that chapter, to include personnel in the excepted service. 5 U.S.C. 4301(2) (Pet. App. 31a-32a). /10/ Accordingly, excepted service personnel who are subject to actions under Chapter 43 have specified rights, including the right to notice, to representation by an attorney, and to "a reasonable time to answer orally and in writing" (see 5 U.S.C. 4303(b) (Pet. App. 32a-33a)). Chapter 43 then provides that "(a)ny employee who is a (veteran) or is in the competitive service" may appeal a removal or reduction in grade under Chapter 43 to the MSPB. 5 U.S.C. 4303(e) (emphasis added) (Pet. App. 33a-34a). But Chapter 43 gives non-veterans in the excepted service no such right of appeal to the MSPB. Decisions of the MSPB are appealable to the Federal Circuit under 5 U.S.C. 7703 (Pet. App. 38a-39a), /11/ but since the Chapter 43 rights of non-veterans in the excepted service do not include review by the MSPB, they of course do not include a right to appeal to the Federal Circuit. Chapter 75, 5 U.S.C. (& Supp. III) 7501 et seq., governs adverse personnel actions other than removals or reductions in grade for unacceptable performance under Chapter 43. /12/ It was revised substantially by the CSRA. Congress divided Chapter 75 into two subchapters, one governing minor adverse actions, defined as suspensions for 14 days or less (5 U.S.C. (& Supp. III) 7501 et seq. (Pet. App. 34a-35a)), and another governing major adverse actions, including removals, demotions, and suspensions for more than 14 days (5 U.S.C. 7511 et seq. (Pet. App. 36a-38a)). Subchapter I of Chapter 75, which relates to minor adverse actions, defines "employee" as "an individual in the competitive service who is not serving a probationary or trial period" (5 U.S.C. 7501(1) (Pet. App. 34a)), and thus excludes all excepted service employees from its coverage. It provides certain procedural rights in connection with minor adverse actions (suspensions for 14 days or less), but these rights do not include review by the MSPB or any court of such actions. Subchapter II of Chapter 75, governing major adverse actions, authorizes agencies to take such actions "for such cause as will promote the efficiency of the service" (5 U.S.C. 7513(a)). It defines "employee" to include "an individual in the competitive service who is not serving a probationary or trial period" and "a (veteran) in the excepted service" (5 U.S.C. 7511(a)(1) (Pet. App. 36a)). Thus, non-veterans in the excepted service are not "employees" for purposes of Subchapter II of Chapter 75. /13/ Subchapter II provides that "an employee against whom (a major adverse) action is taken * * * is entitled to appeal to the Merit Systems Protection Board" (5 U.S.C. 7513(d) (Pet. App. 38a)). As noted above (at note 11, supra, and accompanying text), decisions of the MSPB other than in cases involving allegations of discrimination are appealable to the federal circuit under 5 U.S.C. 7703 (Pet. App. 38a-39a). It is clear that Congress intended to deny non-veterans in the excepted service the protections of Subchapter II of Chapter 75 because Congress specifically provided for the extension of its provisions to selected employees in that category. Congress authorized OPM to provide for the application of Subchapter II of Chapter 75 to personnel in "any position or group of positions excepted from the competitive service" (5 U.S.C. 7511(c) (Pet. App. 36a)). As the Senate Report recognized, the purpose of Section 7511(c) was to authorize OPM "in its discretion, to extend adverse action and appeal coverage to positions or groups of positions" in the excepted service (S. Rep. 95-969, supra, at 49). /14/ With two exceptions /15/ OPM has not chosen to do so. /16/ Therefore, non-veterans in the excepted service have no right to appeal adverse actions of the sort governed by Chapter 75 to the MSPB or to obtain judicial review of the resulting decisions in the Federal Circuit. Finally, in enacting the CSRA, Congress created the Office of Special Counsel of the MSPB (5 U.S.C. 1204) to investigate "(p)rohibited personnel practices" (5 U.S.C. 2302), which are certain specified practices such as coercion of political activity (5 U.S.C. 2302(b)(3)) and nepotism (5 U.S.C. 2302 (b)(7). Employees in excepted service positions, except for those employees in positions of a confidential or policy-making nature, are protected by the prohibited personnel practices provision (5 U.S.C. 2302(a)(2)(B) (Pet. App. 30a-31a)). The Special Counsel is authorized to investigate charges brought by excepted service personnel alleging that they have been subjected to prohibited personnel practices (5 U.S.C. 1206). Judicial review of actions taken or not taken by the Special Counsel is quite limited (Carducci, 714 F.2d at 175). In sum, the CSRA comprehensively governs the procedures under which federal employees, including excepted service employees, may be subjected to adverse personnel actions, and the CSRA comprehensively regulates the right of federal employees, including excepted service employees, to obtain judicial review of adverse actions. Chapter 43 grants all non-probationary federal employees certain procedural rights in actions based on unacceptable job performance, but it provides for review by the MSPB and then the Federal Circuit only in cases involving competitive service employees and veterans in the excepted service. Chapter 75 grants rights with respect to other adverse actions. Subchapter I of Chapter 75 excludes minor adverse actions from review by the MSPB or the courts. Subchapter II provides for judicial review of major adverse actions taken against competitive service employees and veterans in the excepted service, but it does not provide for judicial review of major adverse actions taken against probationary employees and non-veterans in the excepted service. OPM is expressly authorized in its discretion to extend coverage under Subchapter II of Chapter 75, including the right to seek review of major adverse actions by the MSPB and then the Federal Circuit, to excepted service employees not holding policy-making positions, but OPM has not generally done so. Finally, excepted service employees other than those holding policy-making positions may complain to the Special Counsel if they are subjected to prohibited personnel practices. 3. Respondent plainly has no express right to judicial review under the comprehensive provisions of the CSRA. He was not disciplined for inadequate performance of the critical elements of his job, so the provisions of Chapter 43 -- which would have provided him with procedural rights, but no right to obtain review in the MSPB and the Federal Circuit -- do not apply. As a non-veteran in the excepted service, he was not an "employee" under Chapter 75, and OPM has not extended the coverage of that section to his position, so he has no rights under that chapter. And he did not allege that he was subjected to a prohibited personnel practice, so he had no right to complain to the Special Counsel under Chapter 23. /17/ It is clear that respondent also has no implied right of action under the CSRA. This Court recently stated that "(w)hether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved." Block v. Community Nutrition Institute, 467 U.S. 340, 345 (1984). The Court emphasized that "'clear and convincing evidence'" of an intent to preclude review is not required "in the strict evidentiary sense" (id. at 350). Rather, "the presumption favoring judicial review of administrative action may be overcome by inferences of intent drawn from the statutory scheme as a whole" (id. at 349). /18/ The comprehensive nature of the CSRA clearly precludes implication of a right of action under that statute. The courts of appeals have uniformly concluded that federal employees have no implied rights of action under the CSRA. In Schwartz v. Department of Transportation, 714 F.2d 1581 (1983), the Federal Circuit concluded that a Department of Transportation attorney who had been dismissed under Chapter 43 for unacceptable performance could not obtain review in the MSPB, since attorneys are excepted service employees (see 5 C.F.R. 213.3102(d)). The Federal Circuit recently reaffirmed that conclusion in Smith v. MSPB, 813 F.2d 1216 (1987), where the court held that an attorney at the National Labor Relations Board who was dismissed for unacceptable performance could not appeal her dismissal to the MSPB, even though the applicable agency regulation appeared to grant her that right. The Federal Circuit also held in United States v. Connolly, 716 F.2d 882 (1983) (en banc), cert. denied, 465 U.S. 1065 (1984), that a probationary employee who was dismissed could not obtain review under the CSRA since probationary employees, like excepted service employees, are not "employees" under Chapter 75. The District of Columbia Circuit has rejected a similar claim by a probationary employee. Borrell v. United States International Communications Agency, 682 F.2d 981 (1982). That court has also rejected a claim by an employee subjected to a minor adverse action that he had an implied right of action under the CSRA even though Chapter 75 does not provide for review of minor adverse actions. Cutts v. Fowler, 692 F.2d 138 (D.C. Cir. 1982). Finally, that court recently concluded that an excepted service attorney at the Department of Health and Human Services who was dismissed for unsatisfactory performance had no implied right of action under the CSRA. Harrison v. Bowen, No. 86-5168 (D.C. Cir. Apr. 3, 1987), slip op. 21). There is, accordingly, no question that the MSPB and the Federal Circuit correctly rejected respondent's prior attempt to obtain review in those bodies (see Pet. App. 27a; Fausto v. Department of Interior, 738 F.2d 454 (Fed. Cir. 1984) (Table)). C. As Other Courts Of Appeals Have Recognized, The CSRA Preempts Recovery Under More General Statutes In view of the CSRA'S comprehensive scheme of administrative and judicial review, other courts of appeals that have considered whether a variety of personnel actions not subject to review under the CSRA may be reviewed under more general statutes have all answered in the negative. /19/ In Viet v. Heckler, 746 F.2d 508, 511 (9th Cir. 1984), the court stated 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." Accordingly, that court held that the existence of the CSRA precluded review by a district court under the APA of an employee's performance evaluation. Similarly, the court in Pinar v. Dole, 747 F.2d 899 (4th Cir. 1984), cert. denied, 471 U.S. 1016 (1985), held that a federal employee suspended for two days had no right to review of his suspension in a district court. That was so, according to the Fourth Circuit, because APA review is not available "where the relevant statute 'preclude(s) judicial review,'" and "the statutory scheme of the CSRA reveals that Congress intentionally foreclosed judicial review to employees who * * * are subjected to disciplinary actions which are modest in nature by providing judicial review only of (major) personnel actions" (747 F.2d at 912 (quoting 5 U.S.C. 701(a)(1)). In Carducci v. Regan, 714 F.2d 171, 173-174 (D.C. Cir. 1983), the court held that, by its enactment of the CSRA, Congress precluded review of minor personnel actions that, prior to the CSRA'S passage, were reviewable under the APA. Finally, in Harrison v. Bowen, No. 86-5168 (D.C. Cir. Apr. 3, 1987), slip op. 21-22, the court concluded that an excepted service employee had no right to judicial review under the APA of her dismissal for unacceptable performance. /20/ See also Broadway v. Block, 694 F.2d 979, 986 (5th Cir. 1982) (no APA jurisdiction to review reassignment). /21/ The Federal Circuit had also previously recognized that the CSRA precluded review under the Tucker Act, holding in McClary v. United States, 775 F.2d 280 (1985), that a competitive service employee who had a remedy under the CSRA could not seek back pay under the Tucker Act. And the Federal Circuit recently held that a probationary employee had no claim under the Tucker Act. Rosano v. United States, 800 F.2d 1126 (1986) (per curiam). In sum, except for the decision below, the courts of appeals have held without exception that the comprehensive provisions of the CSRA preclude federal employees from obtaining review of adverse personnel actions under more general statutes. D. The Fact That Respondent Cannot Obtain Judicial Review Under The CSRA Precludes, Rather Than Supports Permitting Him To Bring Suit Under The Tucker Act The court below concluded that the decisions of other circuits holding that federal employees may not sue under more general statutes are inapplicable in this case because non-veterans in the excepted service are "not subject to the adverse action provisions of the CSRA" (Pet. App. 22a). /22/ It similarly concluded that its own prior decision in McClary was inapplicable because, while the CSRA provided an avenue for obtaining judicial review to the competitive service employee in that case, the CSRA does not provide an avenue for obtaining judicial review to respondent (id. at 5a). But the statement that excepted service employees are not subject to the adverse action provisions of the CSRA was plain error: as demonstrated above, excepted service employees were dealt with advertently in all relevant provisions of the CSRA and were deliberately afforded some but not all of the remedies available to other employees. The conclusion below -- that, because Congress has granted excepted service employees only limited rights under the CSRA, they should be granted rights under other statutes that the court acknowledged are not granted to competitive service employees and veterans -- inverts the proper principles of statutory construction. As usual with such inversions, the court's decision would lead to an anomalous result: preferential treatment of a class of employees Congress plainly intended to treat less favorably than competitive service employees. The premise for the court's decision -- that excepted service employees are not subject to the adverse action provisions of the CSRA -- is just wrong. Congress granted excepted service personnel limited rights (not including the right to obtain judicial review) under Chapter 43, so that they are covered by the provisions of the CSRA relating to adverse actions taken because of unacceptable job performance. Congress also dealt advertently with non-veterans in the excepted service in Chapter 75 by excluding them from coverage but providing that OPM could extend the rights enumerated in Subchapter II of Chapter 75, relating to major adverse actions, to them. Furthermore, Congress included certain excepted service positions in the definition of "covered positions" in the prohibited personnel practices provision, so that most excepted service employees may complain to the Special Counsel if they are subjected to an adverse action in violation of that provision. See pages 16-22, supra. This careful and comprehensive scheme demonstrates that, with limited exceptions, Congress simply did not want to give non-veteran excepted service personnel the right to judicial review of adverse actions. It could hardly be plainer that personnel such as respondent were not forgotten by the drafters of the CSRA. Rather, they were deliberately granted fewer rights than competitive service employees and veterans, by a Congress concerned that "appeals processes are so lengthy and complicated that managers often avoid taking disciplinary action" (S. Rep. 95-969, supra, at 9). It is not at all surprising that Congress intended employees in the excepted service to have limited rights in adverse action proceedings, since "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)) and "without either a statement of reasons for discharge or adverse action appeal rights" (Fowler v. United States, 633 F.2d 1258, 1262 (8th Cir. 1980)), in the absence of a statute or regulation providing to the contrary. /23/ It is therefore not surprising that Congress granted them lesser procedural rights under the CSRA. /24/ In light of Congress's clear intent to grant only limited rights to excepted service employees, it makes no sense to grant them greater rights under the Tucker Act or the APA than are afforded competitive service employees. That point was forcefully made by the court in Harrison v. Bowen, No. 86-5168 (D.C. Cir. Apr. 3, 1987), which very recently concluded that excepted service employees, like competitive service employees, are precluded from seeking relief for adverse actions under the APA. The court noted that the CSRA grants excepted service employees limited rights, and added that "(r)ights so conditionally held are no less rights for the condition, but it would be curious indeed if they were favored with greater engines for enforcement than other rights more firmly vested elsewhere in the same 'act" (slip op. 21). Thus, the very fact on which the court below relied in purporting to distinguish this case from the decisions of other circuits -- that federal employees other than non-veterans in the excepted service are granted more extensive remedies under the CSRA -- does not support the conclusion that respondent should be permitted to proceed under the Tucker Act, but instead demonstrates that Congress did not want such employees to be able to obtain judicial review. Since it is plain that the CSRA provides the exclusive remedy for adverse actions taken against competitive service employees, as other courts of appeals have held without exception (see pages 24-27, supra), it is even plainer that it is the exclusive remedy for those employees granted only more limited rights under the CSRA. That means that excepted service personnel simply cannot obtain judicial review of adverse personnel actions not involving claims of discrimination, unless OPM extends such protection to them, but that is what Congress intended. /25/ The court in Harrison reached the conclusion that excepted service employees are barred from obtaining judicial review in a situation that is almost exactly on point. The plaintiff in that case was an excepted service employee of the Department of Health and Human Services who had been dismissed under Chapter 43 for unacceptable performance of her job as an attorney. The court noted that under the CSRA her only avenue for obtaining judicial review was to complain to the Special Counsel (which she had not done) that her dismissal was a prohibited personnel practice because it violated merit system principles. The court held that in spite, or because, of the severe limitation on her CSRA remedies she was barred from obtaining review under the APA. /26/ The court of appeals in Carducci v. Regan, 714 F.2d 171 (D.C. Cir. 1983), also correctly handled a question parallel to the present case. Carducci involved a claim that a federal employee had been improperly reassigned, although the reassignment did not involve a reduction in grade or pay. The court recognized (id. at 174 n.1) that, prior to the enactment of the CSRA, it had reviewed such claims under the APA and that, if review under the APA were not authorized, the employee would not be able to obtain judicial review (id. at 175). The court nevertheless held that "the CSRA implicitly eliminated a right of action that previously existed" (id. at 173 (emphasis in original)), reasoning that "failure to include some types of nonmajor personnel action within the remedial scheme of so comprehensive a piece of legislation reflects a congressional intent that no judicial relief be available" (id. at 174 (footnote omitted)). The court further stated that, otherwise, "the exhaustive remedial scheme of the CSRA would be impermissibly frustrated by permitting, for lesser personnel actions not involving constitutional claims, an access to the courts more immediate and direct than the statute provides with regard to major adverse actions" (ibid.). The court explained that it would make no sense to permit "the luxury of immediate judicial review, without any resort to the administrative process established by the statute," for minor adverse actions (id. at 174-175). It is similarly anomalous to hold, as the court below did, that excepted service personnel need not pursue any administrative appeal before the MSPB, as competitive service employees and veterans must, but may proceed directly to the Claims Court. Moreover, on the reasoning of the court below it is not even clear that this anomalous result would be limited to excepted service employees. The court below states that the prior decision in Greenway, on which it relied, provided a Tucker Act remedy for a probationary excepted service employee (Pet. App. 3a-4a), which suggests that probationary employees could also proceed directly to the Claims Court. /27/ Furthermore, there is no obvious basis for distinguishing claims by excepted service employees from claims resulting from minor adverse actions. The logic that says that prior rights of action are not extinguished by the comprehensive scheme of the CSRA where the CSRA does not provide for judicial review would imply that the court of appeals in Carducci erred in concluding that competitive service employees may not proceed directly to court under the APA to challenge minor adverse actions. Congress did not intend such anomalous results. It is plain from the structure of the CSRA that Congress intended generally to bar excepted service employees -- and probationary employees and employees subjected to minor adverse actions -- from obtaining judicial review of adverse actions, except in the ways enumerated in the CSRA. CONCLUSION The decision of the court of appeals should be reversed. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General LOUIS R. COHEN Deputy Solicitor General CHRISTOPHER J. WRIGHT Assistant to the Solicitor General DAVID M. COHEN ROBERT A. REUTERSHAN Attorneys APRIL 1987 /1/ Positions may be placed in the excepted service by statute, by the President, or by the Office of Personnel Management (OPM), 5 U.S.C. 3301, 3302(1); Exec. Order No. 10,577, 3 C.F.R. 218 (1954-1958 Comp.); see 5 C.F.R. 213.101(a). OPM informs us that as of November 1986 approximately 500,000 employees, about 23% of the federal workforce (excluding the Postal Service), were in the excepted service. /2/ The regulation provided that "(w)hen separated for cause, including performance deficiencies, a nonpreference 'career-type' employee in the excepted service who has completed one year of current continuous service in the same or similar positions * * * is accorded a right to a formal hearing conducted by a grievance examiner." Department of Interior Federal Personnel Manual -- 231, Pt. 370 DM 771-3.22A (May 4, 1981). /3/ Section 638(c)(2) of Title 31, United States Code (1976 ed.) (now codified at 31 U.S.C. 1349(b)), requires federal agencies to impose the penalty of a 30-day suspension, at a minimum, upon an employee found to have misused a Government vehicle, and provides that an employee may be removed for such misconduct. /4/ The court held that respondent was not entitled to any additional back pay because he had admitted his misuse of a government vehicle and the FWS was therefore required by law to suspend him for at least 30 days for that misconduct. And since, as an excepted service employee appointed for a limited period of time, respondent had no right to reassignment to another FWS activity after the FWS camp closed on September 18, 1981, he was owed no back pay after that date. Therefore, the court concluded that respondent had been made whole. Pet. App. 27a-29a. /5/ Section 1491(a), which is entitled "Claims against United States generally; actions involving Tennesses Valley Authority," provides that the Claims Court has "jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." /6/ Out petition for a writ of certiorari raised only the question whether respondent could obtain judicial review under the Tucker Act and did not challenge the court of appeals' conclusion that, under the facts of this case, the Department of the Interior did not correctly resolve the merits of respondent's claim. However, it seems plain that, as the Claims Court concluded, respondent received all the back pay to which he was entitled. The court of appeals' conclusion that FWS could not impose a 30-day suspension, even though by statute such a suspension was the minimum suspension that could be imposed on the undisputed facts of this case, is incorrect. 5 U.S.C. 7701(c)(2)(A) provides that an adverse action should be sustained unless the employee "shows harmful error in the application of the agency's procedures." See Cornelius v. Nutt, 472 U.S. 648 (1985); 5 C.F.R. 1201.56(c)(3); S. Rep 95-969, 95th Cong., 2d Sess. 64 (1978) ("agency actions should be reversed because the agency's procedures were in error only if the procedures followed substantially impaired the rights of the employees"); see also id. at 51. Respondent obviously suffered no harmful error as a result of the delay before he filed his grievance since the minimum penalty permitted was imposed. /7/ On January 12, 1987, the Court granted our petition for a writ of certiorari and denied respondent's cross-petition, which contended that he was entitled to additional back pay for the period after the closing of the camp at which he worked. /8/ The statute actually apoke in terms of "preference eligibles" rather than "veterans," as does the CSRA. "Preference eligibles" include persons who served in the armed forces during a war, persons who became disabled while serving on active duty in the armed forces, and, in certain circumstances, spouses and parents of such persons. See 5 U.S.C. 2108(3). We use the term "veteran," as did the court of appeals, to mean "preference eligible" as defined in section 2108(3). /9/ The House version of what became the CSRA provided for review of MSPB decisions in the district courts. H.R. 11280, 95th Cong., 2d Sess. 66 (1978). The Conference adopted the Senate's approach, which called for review in the regional courts of appeals and the former Court of Claims. H.R. Conf. Rep. 95-1717, 95th Cong., 2d Sess 143 (1978). Under the Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, Section 127(a), 96 Stat. 37, the Federal Circuit has virtually exclusive jurisdiction of appeals from decisions of the Board other than appeals involving claims of discrimination. 5 U.S.C. 7703(b) (Pet. App. 38a-39a). /10/ Congress gave OPM authority to exempt particular excepted service positions from any coverage at all under Chapter 43. 5 U.S.C. 4301(2)(G) (Pet. App. 32a). It added, however, that "(i)t is expected that this authority to exempt * * * positions will be used sparingly" (S. Rep. 95-969, supra, at 41). /11/ 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. The prior section, 5 U.S.C. 7702, carefully integrates cases involving such claims, and cases arising under the Rehabilitation Act of 1973, 29 U.S.C. 206(d), into the scheme of review by the MSPB. Excepted service employees are entitled to bring discrimination charges under these statutes, but no such allegation is involved in this case. /12/ Chapter 75 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 Navy, 767 F.2d 826 (Fed. Cir. 1985), cert. denied, No. 85-882 (Apr. 7, 1986). The basis for the adverse action here, repeated misuse of a government vehicle, is the sort of action that would arise under Chapter 75 in a case involving a competitive service employee or a veteran. /13/ Probationary employees are not "employees" under Chapter 75 either. Nearly all employees appointed to career positions in the civil service serve a one-year probationary period. See 5 C.F.R. Pt. 315, Subpt. H. /14/ OPM is not authorized to extend the protections of Chapter 75 to excepted service employees in positions "of a confidential, policy-determining, policy-making or policy-advocating character" (5 U.S.C. 7511(b)(2) (Pet. App. 36a)). OPM may only extend coverage under Subchapter II to employees whose positions are placed in the excepted service because it is not practical to hold competitive examinations for those positions. See S. Rep. 95-969, supra, at 48-49. /15/ The Office has provided by regulation that two types of excepted service personnel other than veterans have the rights enumerated in Chapter 75. 5 C.F.R. 752.401(b)(3) ("an employee with competitive status who occupies a position in Schedule B of Part 213 of this title") and 5 C.F.R. 752.401(b)(4) ("(a)n employee who occupies a professional and administrative career (PAC) position in Schedule B of Part 213 of this title"). /16/ The Chairman of the Civil Service Commission, testifying at the hearings leading to the enactment of the CSRA, recognized that under Section 7511(c) as proposed (and enacted) "the Office of Personnel Management is authorized to extend adverse action and appeals coverage to positions administratively excepted from the competitive service." Civil Service Reform Act of 1978 and Reorganization Plan No. 2 of 1978: Hearings on S. 2640, S. 2707, and S. 2830 Before the Senate Comm. on Governmental Affairs, 95th Cong., 2d Sess. 99 (1978) (statement of Alan K. Campbell). He added that "(p)resently, employees in the excepted service (other than those entitled to veteran preference) are entitled to only those rights which may be provided by agency regulations, without the right of appeal to the Civil Service Commission." (id. at 99-100). Thus, it seems clear that Congress understood, as Chairman Campbell stated, that under the CSRA non-veterans in the excepted service would have the right to appeal only if OPM so provided. Respondent pointed out (Br. in Opp. 18-20) that Campbell's personal view was that career employees in the excepted service ought generally to be treated like competitive service employees. However, OPM has not thus far agreed. See note 15, supra. /17/ Since respondent has not alleged that he was subjected to discriminatory treatment, he could not have proceeded under any of the statutes that provide specific remedies for such claims (see note 11, supra). /18/ Cf. United States v. Erika, Inc., 456 U.S. 201, 208 (1982) ("(i)n the context of the (Medicare) statute's precisely drawn provisions," Congress's failure to authorize further review of certain determinations "provides persuasive evidence that Congress deliberately intended to foreclose further review of such claims"). /19/ Similarly, in Bush v. Lucas, 462 U.S. 367 (1983), this Court held that a federal employee with a right to administrative and judicial review of his demotion could not sue his superiors for damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The Court noted that Congress had provided "an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations," and determined that this system precluded a Bivens remedy (462 U.S. at 388). The courts of appeals have split on the question whether employees with no right to judicial review under the CSRA may pursue Bivens actions. Compare Kotarski v. Cooper, 799 F.2d 1342 (9th Cir. 1986) (probationary employee may pursue Bivens action), and Spagnola v. Mathis, 809 F.2d 16 (D.C. Cir. 1986) (federal employee subjected to a minor adverse action may pursue Bivens action), with Pinar v. Dole, 747 F.2d 899 (4th Cir. 1984) (federal employee subjected to a minor adverse action may not pursue Bivens action), and Hubbard v. EPA, 809 F.2d 1 (D.C. Cir. 1986) (unsuccessful job applicant with limited remedies under the CSRA may not pursue Bivens action). The Solicitor General has authorized the filing of a petition for a writ of certiorari in Kotarski. /20/ The court in Harrison treated the question whether an excepted service employee had an implied right of action under the CSRA to challenge an adverse action taken under Chapter 43 together with its treatment of the question whether the CSRA preempted her right to review under the APA (see slip op. 9-23). It concluded that excepted service employees have no right to judicial review under either the CSRA or the APA for the same reason -- the text of Chapter 43 makes clear that Congress "intended to foreclose district court review" of such claims (slip op. 21). /21/ Other courts have held that review is not available under other general statutes. See, e.g., Spagnola v. Mathis, 809 F.2d 16, 28-30 (D.C. Cir. 1986) (federal employee who was not promoted could not bring claim under 42 U.S.C. 1985(1)); Weatherford v. Dole, 763 F.2d 392 (10th Cir. 1985) (no jurisdiction under 28 U.S.C. 1331 to review reassignment of government employee). Two courts came to contrary conclusions concerning whether classification claims are reviewable. Compare Burroughs v. OPM, 764 F.2d 1300 (9th Cir. 1985) (authorizing mandamus review of classification claims), with Barnhart v. Devine, 771 F.2d 1515 (D.C. Cir. 1985) (employees complaining of improper classification must bring their claim to the Special Counsel). But classification claims are not claims based on adverse actions. We are aware of no court other than the court below that has held that an adverse action may be reviewed under a statute other than the CSRA. In Dugan v. Ramsay, 727 F.2d 192, 194-195 (1st Cir. 1984), the court authorized review under the APA of a job applicant's claim that OPM had arbitrarily refused to consider his application, and rejected an argument that the CSRA precluded review in reaching that decision, but that case did not involve an adverse action. /22/ The court of appeals cited (Pet. App. 4a) this Court's decision in Regional Rail Reorganization Act Cases, 419 U.S. 102 (1974), in which the Court held that the Rail Act did not preclude railroads from pursuing takings claims under the Tucker Act, stating that "(t)he question * * * is whether Congress has in the Rail Act withdrawn the Tucker Act grant of jurisdiction to the Court of Claims to hear a suit involving the Rail Act 'founded * * * upon the Constitution'" (id. at 126 (emphasis in original)). But that case is not in point here. First, it was assumed arguendo in that case that the operation of the Rail Act would give rise to a valid constitutional claim; the question was whether the same statute had simultaneously closed the door to the courthouse. Here, it is clear that respondent has no constitutional claim and the only question is whether, in light of the CSRA, he has any statutory claim. Second, in the Rail Act case the Court reviewed the text and legislative history of the Rail Act, particularly its own statement of its relationship to other laws (see id. at 129), and concluded that Congress had not intended to preclude suit under the Tucker Act -- a conclusion explicitly fortified by the Court's determination that "(t)here are clearly grave doubts whether the Rail Act would be constitutional if a Tucker Act remedy were not available" (id. at 134). Here, as we have shown, the text and legislative history clearly demonstrate that Congress did intend the comprehensive CSRA remedies to be exclusive (i.e., that it did intend to "withdraw the subject from the operation of a general law" (Cook County National Bank, 107 U.S. at 451)), and there is of course no doubt that Congress acted constitutionally in doing so. /23/ Here respondent was provided with a statement of the charges against him, permitted to reply to them, and later permitted to file a grievance challenging the decision to dismiss him. Pet. App. 25a. Respondent has not alleged that he had a property interest in his position, and it seems clear that excepted service employees, who may generally be fired for any reason and without any procedure, have no such interest. Crisan v. United States, 223 Ct. Cl. 682 (1980) (attorney given right to reply to charges before his dismissal had no property interest in his excepted service position). But, assuming that he had such an interest, the rights granted him satisfied due process. See Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985); cf. Harrison v. Bowen, No. 86-5168 (D.C. Cir. Apr. 3, 1987), slip op. 27-29. /24/ Unsurprisingly, the CSRA also gives probationary employees very limited rights. 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 otherwise discipline probationary employees. See S. Rep. 95-969, supra, at 45 (stating, in explaining why probationary employees are not covered by Chapter 43, 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"). Nor is it surprising that Congress has provided limited remedies for minor adverse actions. It simply does not make sense to provide elaborate procedural remedies for adverse actions with limited consequences, making the cure more expensive than the disease. /25/ The court of appeals noted (Pet. App. 3a, 19a) that this Court held in Service v. Dulles, 354 U.S. 363 (1957), and Vitarelli v. Seaton, 359 U.S. 535 (1959), that agencies are bound to follow their own regulations and that judicial review is normally available to compel an agency to comply with its regulations. As the court of appeals in Harrison recently concluded (slip op. 23-26), in holding that an excepted service employee could not obtain review of a claim that an agency had violated its regulations in dismissing her, the principle that judicial review is available to compel an agency to comply with its regulations does not apply where, as here, the applicable statute precludes judicial review. That is because '"no (agency) rules, understandings or circumstances can contravene the intent of the legislature regarding the employment entitlements that can be conferred'" (id. at 24 (quoting Carducci, 714 F.2d at 177)). As the court in Harrison further explained, neither Service nor Vitarelli involved regulations that "implemented a statutory scheme that itself precluded the plaintiffs from obtaining judicial review of the rights created both therein and thereunder" (Harrison, slip op. 25); to the contrary, in both cases judicial "enforcement of the rights created in the regulations did not conflict with the known intent of Congress" (id. at 25-26). If judicial review of any sort were available to compel an agency to follow its regulations, the sort of review that would be appropriate would be limited review under the Mandamus Act, 28 U.S.C. 1361. Under that provision, a plaintiff may obtain relief only when he has a clear right to relief, the defendant has a clear duty to act, and no other adequate relief is available. See, e.g., Hadley Memorial Hospital, Inc. v. Schweiker, 689 F.2d 905 (10th Cir. 1982); Jones v. Alexander, 613 F.2d 314 (5th Cir.) (Table), cert. denied, 449 U.S. 832 (1980). /26/ In Harrison the plaintiff had an arguable claim that her dismissal was based on a prohibited personnel practice, so that the Special Counsel procedure was available to her. Respondent has no claim that he was subjected to a prohibited personnel practice. However, the fact that it is not possible to argue that, in taking action against respondent, FWS committed any one of the 11 broadly-phrased prohibited personnel practices enumerated in 5 U.S.C. 2302(b) is not a reason to permit him to obtain review under the Tucker Act, a right denied all employees who can make any claim for relief under the CSRA. Rather, as the court in Harrison stated, it would be "curious" if he was "favored with greater engines for enforcement than other rights more firmly vested elsewhere in the same Act" (slip op. 21). /27/ The court of appeals appeared to recede from that conclusion somewhat in its decision on rehearing. It stated that the decision in United States v. Connolly, 716 F.2d 882 (Fed. Cir. 1983) (en banc), cert. denied, 465 U.S. 1065 (1984), holding that a probationary employee had no right to judicial review, was based on "legislative history which specifically revealed the intent of Congress not to grant a cause of action under the CSRA to probationary employees," and suggested that Congress might have intended to bar probationary employees from obtaining judicial review under more general statutes as well (Pet. App. 21a). And the Federal Circuit recently held that a probationary employee could not pursue a challenge to a dismissal under the Tucker Act because the CSRA comprehensively enumerates the remedies available to probationary employees. Rosano v. United States, 800 F.2d 1126 (1986) (per curiam). Since Congress excluded probationary employees and excepted service employees from the coverage of Subchapter II of Chapter 75 in the same subsection (5 U.S.C. 7511(a)(1) (Pet. App. 36a)), it is contradictory to hold that non-veterans in the excepted service may pursue Tucker Act claims challenging major adverse actions while probationary employees may not. Rather, the text and structure of Chapter 75 show that neither non-veterans in the excepted service nor probationary employees are entitled to judicial review for claims of the sort covered by Chapter 75.