UNITED STATES OF AMERICA, PETITIONER V. JOSEPH A. FAUSTO No. 86-594 In the Supreme Court of the United States October Term, 1986 Petition for a Writ of Certiorari to the United States Court of Appeals for the Federal Circuit The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Federal 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 opinions of the court of appeals (App., infra, 1a-8a, and App., infra, 10a-23a (on rehearing)) are reported at 783 F.2d 1020 and 791 F.2d 1554, respectively. The opinion of the Claims Court (App., infra, 24a-29a) is reported at 7 Cl. Ct. 459. JURISDICTION The judgment of the court of appeals (App., infra, 9a) was entered on February 10, 1986, and a timely suggestion of rehearing en banc was denied (App., infra, 10a-23a), with an accompanying order, on May 14, 1986. On August 11, 1986, Chief Justice Burger extended the time within which to file a petition for a writ of certiorari to and including October 11, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED The pertinent statutory provisions are set forth in App., infra, 30a-38a. QUESTION PRESENTED The Civil Service Reform Act of 1978 provides a comprehensive set of remedies, including in specified circumstances review by the Merit Systems Protection 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 does not provide a right of review by the Board or any court, may obtain judicial review of adverse personnel actions under the Tucker Act, 28 U.S.C. 1491. STATEMENT Petitioner was an "excepted service" /1/ employee of the Fish and Wildlife Service (FWS) of the Department of the Interior. After protracted proceedings, he received a 30-day suspension for repeated misuse of a government vehicle. He brought suit in the Claims Court seeking, inter alia, back pay for this period. The Claims Court dismissed the complaint on the ground that the comprehensive remedial scheme provided by the Civil Service Reform Act of 1978, which provides for review of suspensions of competitive service /2/ employees but not of expected service employees, precludes such review. The court of appeals, noting that it was deciding "a very important question concerning the jurisdiction of the Claims Court," reversed, holding that excepted service employees may bring such claims under the Tucker Act, 28 U.S.C. 1491. 1. In the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111 et seq., 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. Chapter 75 governs adverse personnel actions (including removals, suspensions, and reductions in grade or pay) other than removals or reductions in grade under Chapter 43; it authorizes agencies to take adverse personnel actions "for such cause as will promote the efficiency of the service" (5 U.S.C. 7513(a)) and sets forth employees' rights of review of such actions. /3/ Chapter 43 defines "employee," for purposes of that Chapter, to include personnel in the excepted service. 5 U.S.C. 4301(2) (App., infra, 31a-32a). Accordingly, excepted service personnel who are subject to serious adverse personnel actions under that Chapter 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) (App., infra, 32a-33a). Chapter 43 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 (MSPB). 5 U.S.C. 4303(e) (App., infra, 33a-34a). However, it provides no such right of appeal to non-veterans in the expected service. Chapter 75 defines "employee" to include, inter alia, "an individual in the competitive service who is not serving a probationary or trial period * * * " and, for some purposes, "a preference eligible in the excepted service". 5 U.S.C. 7511(a)(1) (App., infra, 36a); see also 5 U.S.C. 7501(1) (App., infra, 34a). Chapter 75 provides that "an employee against whom (a serious adverse) action is taken * * * is entitled to appeal to the Merit Systems Protection Board." 5 U.S.C. 7513(d) (App., infra, 38a). /4/ However, non-veterans in the excepted service, and probationary employees, /5/ who are not "employees" for purposes of Chapter 75, have no right to obtain review of adverse actions under Chapter 75. Congress specifically authorized the Office of Personnel Management (OPM) to provide for the application of Chapter 75 to personnel in "any position or group of positions excepted from the competitive service" (5 U.S.C. 7511(c) (App., infra, 36a)), but with two exceptions /6/ OPM has not chosen to do so. In sum, both Chapter 43 and Chapter 75 make certain provisions for personnel in the excepted service, but neither grants the right of appeal to the MSPB to excepted service personnel who are not veterans. Chapter 43 grants certain rights to both competitive and excepted service personnel, but grants the right of appeal only to competitive service personnel and veterans. Chapter 75 authorizes OPM to apply the chapter to non-veteran excepted service personnel, but grants such personnel no rights unless OPM chooses to do so. /7/ The MSPB's decisions on appeals authorized by Chapter 43 or Chapter 75 are subject to review in the Federal Circuit. /8/ 2. Respondent, who is not a veteran, held an excepted service position as an Administrative Officer at an FWS camp in Virginia. He was hired in January 1978 for a period to last no longer than the earlier of the closing of the camp or September 30, 1982. In November 1980 he was advised that the FWS intended to terminate him for a number of reasons not relating to his performance of the critical elements of his job, 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. App. infra, 24a-25a. In September 1981 the FWS camp at which respondent had been employed was closed. 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. 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. /9/ 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 at each level of review provided by the Department of the Interior's regulations. App., infra, 25a. 3. 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 MSPB (see App., infra, 27a), he filed suit in the Claims Court. The government filed a motion for summary judgment, arguing that the Claims Court did not have jurisdiction to entertain respondent's claim. The government contended that by enacting the CSRA Congress had precluded judicial review of disciplinary actions taken against non-veteran employees in the excepted service. The Claims Court agreed that the CSRA "enumerates an all-inclusive catalogue of remedies for adverse personnel actions" taken against federal employees (App., infra, 26a) and concluded 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.). Noting that the CSRA did not provide respondent with a right to appeal to the MSPB, the Claims Court held that, in light of Congress's decision not to grant non-veteran excepted service employees any right under the CSRA to judicial review of adverse personnel actions, respondent was not entitled to judicial review of his suspension (ibid.). The Claims Court held in the alternative that, if it did have jurisdiction over respondent's claim, he was entitled to no more back pay than he had received from the FWS. /10/ 4. The Federal Circuit reversed. It stated (App., infra, 3a), 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/Back Pay Act" (App., infra, 4a), 28 U.S.C. 1491 and 5 U.S.C. 5596(b), for an alleged violation by an agency of its regulations in taking disciplinary action against him. Stating that this case "presents a very important question concerning the jurisdiction of the Claims Court" (App., infra, 3a), the court of appeals concluded that neither the CSRA nor its legislative history gave a clear indication of Congress's intention to repeal the right of excepted service employees to bring suit challenging an adverse action, and held that the Claims Court had jurisdiction over respondent's claim. 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, the FWS's "belated recognition" of respondent's grievance rights barred it from imposing that suspension (id. at 8a). The court declined the government's suggestion of rehearing en banc. However, "because of the importance of the issue" (App., infra, 11a), the panel treated our suggestion as a request for rehearing by the panel and issued a second opinion reaffirming its first decision. The court rejected the government's contention that its decision on jurisdiction was contrary to numerous decisions of other courts of appeals dismissing attempts by federal employees to challenge adverse personnel actions through means not prescribed in the CSRA. The court stated that in each other case "the employee was subject to the adverse action provisions of the CSRA and was seeking some sort of additional remedy" (App., infra, 22a). In this case, the court said, respondent "was not subject to the adverse action provisions of the CSRA because he was in the excepted service" (ibid.). /11/ REASONS FOR GRANTING THE PETITION The court of appeals has incorrectly decided a question of considerable practical importance to the federal government. Its decision is inconsistent with several decisions of other circuits holding that federal adverse personnel actions are reviewable under the CSRA or not at all. This Court should grant the petition to resolve that inconsistency and to answer the important question of federal jurisdiction raised by this case. 1. As the court of appeals twice noted (App., infra, 3a; id. at 12a), the question whether the Claims Court has jurisdiction over challenges to adverse personnel actions brought by employees in the excepted service is very important. We are advised by OPM that the government employs more than 300,000 excepted service employees, including more than 17,000 attorneys (see 5 C.F.R. 213.3102(d)). /12/ The decision below opens up to review in the Claims Court any dismissal, reduction in grade or pay, or suspension of such an employee, whenever such action is alleged to violate an agency regulation, despite the evident intent of Congress not to give non-veterans in the excepted service a right to judicial review unless OPM decides pursuant to 5 U.S.C. 7511(c) (App., infra, 36a) to extend the rights enumerated in Chapter 75 to them. In view of the large number of employees in the excepted service, and the fact that agencies are required to establish procedures by which employees can challenge employment decisions, /13/ it is inevitable -- especially in view of the large number of government lawyers in the excepted service -- that this decision will create a large amount of litigation. 2. The court of appeals erred in concluding that the Claims Court had jurisdiction to consider respondent's claim. 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). /14/ This Court has also "consistently held that a narrowly tailored employee compensation scheme" precludes recovery under more general statutes. Brown v. General Services Administration 425 U.S. 820, 834-835 (1976). In enacting the CSRA, Congress "comprehensively overhauled the civil service system" (Lindahl v. OPM, 470 U.S. 768, 773 (1985)). The CSRA replaced "an outdated patchwork of statutes and rules built up over almost a century" (S. Rep. 95-969, 95th Cong., 2d Sess. 3 (1978)), and the Senate Committee described the changes made by the CSRA as constituting "the most comprehensive reform of the Federal work force since passage of the Pendleton Act in 1883" (id. at 1). The structure of the CSRA makes clear that Congress intended not to permit the Claims Court to review suspensions of personnel like respondent under its more general Tucker Act jurisdiction. In view of the CSRA's comprehensive scheme of administrative and judicial review, the other courts of appeals that have addressed the question whether personnel actions not subject to review under the CSRA may be subject to judicial review under other statutes have almost unanimously answered that question in the negative. /15/ In Veit 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, the court held that the existence of the CSRA precluded review by a district court under the Administrative Procedure Act (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 'precludes 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. The court added that if that were not the case, "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" (id. at 174). /16/ On rehearing, the court of appeals sought to distinguish the decisions of other circuits holding that CSRA remedies for adverse personnel actions are exclusive on the ground that non-veterans in the excepted service are "not subject to the adverse action provisions of the CSRA," whereas the government employees in the other cases were "subject to the adverse action provisions of the CSRA and (were) seeking some sort of additional remedy" (App., infra, 22a). But excepted service personnel are protected by the CSRA provisions codified in Chapter 23 relating to "prohibited personnel practices." Excepted service personnel are covered by Chapter 43, which governs the rights of employees threatened with dismissal or demotion for inadequate job performance (although Congress carefully denied non-veterans in the excepted service the right to appeal to the MSPB and the courts). And Chapter 75, dealing with adverse personnel actions for other causes (such as misuse of a government vehicle) does cover excepted service personnel who are veterans and other excepted personnel that OPM chooses to cover by regulation. See pages 3-5, supra. Therefore, the court of appeals was altogether wrong in stating (App., infra, 21a) that non-veterans in the excepted service are not subject to the CSRA. Accordingly, the cases from other circuits are not distinguishable on the basis stated by the court of appeals. /17/ Moreover, the very fact on which the court of appeals 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 this particular class of employees to be able to obtain judicial review. It could hardly be clearer that personnel such as respondent were not forgotten by the draftsmen of the CSRA; rather they were deliberately granted lesser rights than other federal employees. The adverse action in this case -- a 30-day suspension for repeated misuse of a government vehicle -- was the type of action that is governed by Chapter 75 rather than Chapter 43. Non-veteran excepted service personnel have no rights under Chapter 75 because they are not "employees" under Chapter 75. 5 U.S.C. 7501(1), 7511(a)(1) (App., infra, 34a, 36a). It is clear that Congress recognized that it was excluding them because it expressly gave OPM authority to "provide for the application of this subchapter to any position or group of positions excepted from the competitive service by regulation of the Office." 5 U.S.C. 7511(c) (App., infra, 36a). /18/ OPM has provided that a limited number of non-veteran positions in the excepted service have the rights enumerated in Chapter 75, including the right of MSPB and judicial review (5 C.F.R. 752.401(b)(3) and (4) (see note 6, supra)), but respondent did not occupy one of those positions. Thus, Congress carefully included certain excepted service positions in the definition of "covered positions" in the prohibited personnel practices provision, granted excepted service personnel limited rights (not including the right to obtain judicial review) under Chapter 43, and provided that OPM could extend the rights enumerated in Chapter 75 to them. See pages 3-5, supra. This careful and comprehensive scheme demonstrates that with limited exceptions not relevant here Congress simply did not want to give non-veteran excepted service personnel the right to review of adverse actions by the MSPB and the courts. /19/ While it is true, as the court of appeals noted (Pet. App. 3a-4a), that agencies are bound by their regulations (Vitarelli v. Seaton, 359 U.S. 535, 539-540 (1959)), and that repeals by implication are disfavored (Regional Rail Reorganization Act Cases, 419 U.S. 102, 133 (1974) (no implied repeal of Tucker Act remedy)), it does not follow that judicial review is warranted to ensure that agencies comply with their regulations when the relevant statute (here the CSRA) clearly and convincingly precludes judicial review. Cf. Block, 467 U.S. at 345; Brown, 425 U.S. at 834-835; Pinar, 747 F.2d at 912. The structure of the CSRA clearly establishes that Congress intended "to permit federal court review as provided in the CSRA or not at all" (Veit, 746 F.2d at 511). As the court concluded in Carducci (714 F.2d at 173 (emphasis in original)), "the CSRA implicitly eliminated a right of action that previously existed." Therefore respondent had no right to obtain review in the Claims Court. The court of appeals' decision would allow non-veterans in the excepted service to go directly to court with claims that they were demoted or fired in violation of applicable regulations, while competitive service employees and veterans are required to file their initial claims with the MSPB (McClary v. United States, 775 F.2d 280 (Fed. Cir. 1985)). Thus, non-veterans in the excepted service -- to whom Congress plainly granted lesser rights under the CSRA than to competitive service employees and veterans -- are given "an access to the courts more immediate and direct than the statute provides with regard to" those other employees (Carducci, 714 F.2d at 174). Congress did not intend such an anomalous result. CONCLUSION The petition for a writ of certiorari should be granted. 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 OCTOBER 1986 /1/ 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, attorneys, and Japanese interpreters (5 C.F.R. 213.3102(a), (d) and (f) 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). Respondent's position was placed in the excepted service because it was impractical to hold examinations for the position because it was a temporary position. See 5 C.F.R. 213.3102(hh)(1979). /2/ The "competitive service" is defined (5 U.S.C. 2102(a)), in pertinent part, as consisting of (1) all civil service positions in the executive branch, except -- (A) positions which are specifically excepted from the competitive service by or under statute; (B) positions to which appointments are made by nomination for confirmation by the Senate, unless the Senate directs otherwise; and (C) positions in the Senior Executive Service * * * . /3/ 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). /4/ The CSRA did not grant the MSPB jurisdiction to consider appeals of minor personnel actions, such as suspensions for less than 15 days. See 5 U.S.C. 7503 (App., infra, 35a). /5/ 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. /6/ OPM 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) ("an employee who occupies a professional and administrative career (PAC) position in Schedule B of Part 213 of this title"). /7/ Excepted service personnel have various rights under other provisions of the CSRA. For example, 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 certain specified personnel actions "infected by particularly heinous motivations or disregard of law" (Carducci v. Regan, 714 F.2d 171, 175 (D.C. Cir. 1983)). 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) (App., infra, 30a-31a). Therefore, 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). /8/ As enacted, the CSRA granted the regional courts of appeals and the Court of Claims jurisdiction to review on direct appeal decisions of the MSPB. 5 U.S.C. (Supp. II 1978) 7703(b)(1); 28 U.S.C. (Supp. II 1978) 2342(6). Under the Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, Section 127(a), 96 Stat. 25, 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) (App., infra, 38a). /9/ Section 638a(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. /10/ 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. App., infra, 28a-29a. /11/ The court of appeals also stated that its decision was not contrary to its prior decision in United States v. Connolly, 716 F.2d 882, 886 (Fed. Cir. 1983) (en banc), cert. denied 465 U.S. 1065 (1984), where the court held that probationary employees -- who, like non-veteran excepted service personnel are not "employees" under 5 U.S.C. 7551(a)(1) -- may not obtain judicial review of adverse actions. The decision in Connolly was distinguishable, the court concluded, because the issue was whether the plaintiff could obtain judicial review under the CSRA and because the legislative history of the CSRA clearly showed that Congress did not intend to provide probationary personnel with a right to review, while in the court's view Congress had not made clear in the legislative history of the CSRA that excepted service personnel had no right to judicial review (App., infra, 20a-21a). /12/ OPM has not by regulation granted any of these attorney positions the rights enumerated in Chapter 75, as it is authorized to do by 5 U.S.C. 7511(c) (App., infra, 36a) (see note 6, supra). /13/ OPM requires agencies to establish grievance systems in which employees may raise "any matter of concern or dissatisfaction relating to the employment of an employee which is subject to the control of agency management" (5 C.F.R. 771.205). Employees in the excepted service are not excluded from the coverage of those grievance systems (see 5 C.F.R. 771.206(b)). /14/ Cf. United States v. Erika, Inc., 456 U.S. 201, 208 (1982) ("in 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"). /15/ Similarly, in Bush v. Lucas, 462 U.S. 367 (1983), this Court held that a federal employee could not sue his superiors for damages under Bivens v. Six Unknown Named Agents of the 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," in deciding not to augment that system with a Bivens remedy (ibid.). /16/ Other courts have reached similar conclusions. Barnhart v. Devine, 771 F.2d 1515 (D.C. Cir. 1985) (employees complaining of improper classification must bring their claim to the Office of Special Counsel); Weatherford v. Dole, 763 F.2d 392 (10th Cir. 1985) (no jurisdiction under 28 U.S.C. 1331 to review reassignment of government employee); Broadway v. Block, 694 F.2d 979, 986 (5th Cir. 1982) (no APA jurisdiction to review reassignment). Two courts have held to the contrary. Burroughs v. OPM, 764 F.2d 1300 (9th Cir. 1985), rehearing denied, 784 F.2d 933 (1986) (authorizing mandamus review of classification claim); Dugan v. Ramsay, 727 F.2d 192, 194-195 (1st Cir. 1984) (authorizing review under APA of job applicant's claim). /17/ While there is no conflict in the circuits on the precise issue whether non-veterans in the excepted service may obtain judicial review of adverse personnel decisions, there is no realistic possibility of such a conflict arising, because excepted service employees subjected to adverse actions may, as a result of the decision here, challenge that decision in the Claims Court under the Tucker Act and the Back Pay Act by alleging that the adverse action was taken in violation of agency regulations, and the decision of the Claims Court would be reviewed in the Federal Circuit. In addition, any claim filed in a district court pursuant to 28 U.S.C. 1346(a)(2) (granting district courts jurisdiction concurrent with the Claims Court for claims against the United States not exceeding $10,000 "founded upon any regulation of an executive department") is reviewable in the Federal Circuit, rather than in one of the regional courts of appeals, under 28 U.S.C. 1295(a)(2). /18/ The Chairman of the Civil Service Commission, testifying at the hearings leading to the enactment of the CSRA, recognized that under Section 7511(c) "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 Mr. Campbell stated, that under the CSRA non-veterans in the excepted service would have the right to appeal only if OPM so provided. /19/ It is not at all surprising that Congress intended employees in the excepted service to have limited rights in adverse action proceedings, since many excepted service personnel hold professional or policy-making positions (see note 1, supra) over which their employers have traditionally had discretion: "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. APPENDIX