UNITED STATES v. FAUSTO

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ORAL ARGUMENT OF CHRISTOPHER J. WRIGHT ON BEHALF OF THE PETITIONER

Chief Justice William H. Rehnquist: We will hear arguments first this afternoon in No. 86-595, United States against Joseph Fausto.

Mr. Wright, you may proceed whenever you are ready.

Mr. Wright: Mr. Chief Justice, and may it please the Court.

This case involves an excepted service employee who misused a government vehicle.

At issue is 30 days back pay.

The Court of Appeals held that although the Civil Service Reform Act does not provide for judicial review of adverse actions like the one at issue, that Respondent had an implied right of action in the Claims Court under the Tucker Act and the Back Pay Act.

In our view, because the CSRA specifically deals with the remedies available to federal employees, including this employee in this situation, it precludes such an implied right of action.

The CSRA draws three distinctions that need to be kept in mind.

First,--

Unidentified Justice: Mr. Wright, before you go on, am I correct in my understanding that the CSRA did not provide for any remedy for this basis of dismissal?

But it also did not provide for this basis of dismissal?

That the basis of dismissal was a basis outside the CSRA?

Mr. Wright: --Well, this employee was dismissed for misconduct.

The CSRA deals with misconduct.

It defines employees not to include this employee.

Unidentified Justice: Therefore, this employee's misconduct, or the dismissal of this employee for misconduct is not the dismissal of this employee under the CSRA.

Mr. Wright: That's right.

Another way of looking at that is that the CSRA hasn't provided him with any remedies.

That's our point.

The provision of the CSRA--

Unidentified Justice: Well, not only has it not provided him any remedies, it also hasn't provided the government any basis for dismissal.

Mr. Wright: --This is an excepted service employee for whom it is assumed that there need be no basis for dismissal.

This employee has no form of tenure.

He is not a competitive service employee, and he is not a veteran.

Unidentified Justice: Then why was he dismissed for violation of another statute outside of the Civil Service Reform Act.

Why wasn't he just told to be gone?

Mr. Wright: He was given a list of reasons.

He was also allowed to file a grievance, but he was dismissed for use of a government vehicle.

A statute, a statute provides that federal employees may be dismissed for that.

It also provides that there is a mandatory 30-day suspension.

Unidentified Justice: It seems to me it's one thing to say that where you have a comprehensive scheme like the Civil Service Reform Act that provides for the basis of dismissal of a particular employee, and does not provide any remedy, or provides remedy only in certain instances and leaves out other ones.

It's one thing to say that in that situation implicit is that he has no remedy for the ones not listed, but it's quite a different situation when the basis of dismissal itself is not... is not the CSRA, but rather, this other statute upon which the government relied.

Mr. Wright: That's true, but that other statute gives him no remedies, and this statute is the comprehensive statute covering adverse actions against federal employees.

If it simply neglected to deal with this employee, that would be one thing.

But the whole scheme of the statute shows that Congress dealt advertently with this class of employee in this situation, and has provided, as we have stated, that the Office of Personnel Management could provide that he was covered and had the rights in Chapter 75.

It hasn't.

In this situation where Congress dealt with him, gave him no rights at all under the comprehensive scheme that it set up, and provided that OPM could decide to extend those rights to him.

What we think that the proper result to draw, the conclusion to draw is that Congress didn't want him to be able to go to court to complain about a suspension for misuse of a government vehicle unless OPM said that he could.

And OPM has said that some employees, excepted service employees may go to court to do that, but it did not grant that right to short-term employees like the Respondent here.

And so under that scheme where Congress hasn't forgotten about him at all, it is just like the Carducci decision where Congress had provided no remedies in the case of reassignments, but had dealt in great detail with all sorts of adverse actions, and it was clear that it had deliberately decided that federal employees can't go to court to complain about reassignments.

Unidentified Justice: But the difference in Carducci was that the basis for dismissal in Carducci was a basis set forth in the Civil Service Reform Act itself, or the basis action taken was a basis set forth in the Civil Service Reform Act, unacceptable performance.

And as I understand it, that is not what's being relied on here, any basis that's set forth in the act itself.

Mr. Wright: No, that's right.

The government has inherent authority to dismiss or suspend excepted service employees because it... except to the extent that it has granted them rights in the Civil Service Reform Act, which it has in many case, I might add, but not this one.

Unidentified Justice: Let me ask you, Mr. Wright.

What is your position in this court on the question whether prior to the enactment of CSRA there would have been a remedy for this man?

Mr. Wright: Well, we think that's a close question.

We think that the Testan decision is the one most closely on point.

That was a classification decision.

Unidentified Justice: I know you argued it in the second go around in the court below, and they said it was perfectly... but I don't think see you are not arguing--

Mr. Wright: No, we are not pursing that.

Unidentified Justice: --So we start from the premise that prior to CSRA he had a remedy, and that CSRA really impliedly took it away from him.

Mr. Wright: In 1963, the Court of Claims held in the Greenway decision that a probationary excepted service employee could go to court in certain situations.

And the court below has described that as giving him a right to challenge an arbitrary dismissal.

And, no, we're not... I thought you were asking the question sort of in the abstract whether Greenway was correctly decided under the law at that time.

We think that's a close question, but is no longer relevant after enactment of the CSRA which we think precludes this cause of action.

Unidentified Justice: I gather your principal reliance is that this is a very comprehensive scheme.

Mr. Wright: Yes.

Unidentified Justice: And yet, you say while it doesn't in terms protect this man--

Mr. Wright: Not in this case.

Unidentified Justice: --Not in this case.

Nevertheless there's inherent authority?

Mr. Wright: To fire excepted service employees.

This employee is not a competitive service employee.

The vast majority of federal employees are in the competitive service.

Unidentified Justice: Well, I don't understand why... why doesn't the comprehensive statute preempt this so-called inherent authority?

Mr. Wright: Well, the comprehensive statute gives this person no rights in this situation.

There is a very specific statute dealing with misuse of government vehicles, and that was what was... this employee committed five breaches, but it was the misuse of the government vehicle that was ultimately the basis for the adverse action here.

Unidentified Justice: And what's the source of this inherent authority?

Mr. Wright: We quoted a number of cases in our brief.

It has long been assumed that excepted employees, employees who are excepted from the competitive service serve at will and have no property interest in their jobs, and may be terminated without any process at all.

Unidentified Justice: And assumed.

Mr. Wright: And a number of courts have so held.

Competitive service employees are, of course, much different.

Competitive service employees have long held a host of rights.

In enacting the CSRA, Congress complained to some extent that it was assumed by many people that it was impossible to fire a federal employee because they had so many rights.

But Congress was thinking of competitive service employees there.

Excepted service employees have never had rights anything like the rights granted to competitive service employees.

Unidentified Justice: If you are right here, then the government didn't need to rely on a statute that provided for a 30-day suspension if you misused a car.

It just could have fired him.

Mr. Wright: Yes, it could have, and I think that's undisputed.

Unidentified Justice: Well, is it the same thing to be fired for no reason at all as to be fired for stealing a car, or for misusing a car?

Wouldn't he have some constitutional right to a name-clearing hearing if he is fired for that sort of a reason anyway?

Mr. Wright: He certainly never argued that he had any sort of liberty interest here.

I suppose in some circumstances, he might.

I don't think in the normal instance he would.

Unidentified Justice: I don't think so.

Doesn't his claim rest on some kind of regulation?

I'm a little fuzzy on the facts?

Didn't he--

Mr. Wright: The Department of the Interior allowed him to file a grievance.

It provided that in a whole host of situations employees could challenge employment decisions by filing a grievance.

OPM, in 1980, set forth some regulations which basically require agencies to set up grievance procedures, and it has also provided that except for those excepted service employees who hold policy making decisions, that those grievance procedures should generally be available to other excepted service personnel so that they can file grievances.

Unidentified Justice: --And your position, as I understand, is even if they just go ahead and violate those regulations, don't give him a hearing, don't do what the regulation provide, there is just still no provision for any judicial review.

Mr. Wright: That is basically our argument.

Unidentified Justice: If you had a regulation that when there is a lot of snow in Washington, everybody can go home at 3:00 and still get a full day's pay, and the excepted service people, they just didn't pay them, they would have no remedy.

Mr. Wright: Well, that's not an adverse action.

Unidentified Justice: That's not paying them?

Mr. Wright: No.

By adverse action, we're talking about dismissals, suspensions, demotions.

In some cases, it may cover failures--

Unidentified Justice: Then they demoted him for not showing up on a day he was told he could go home, because the regulation says you don't have to work past 3:00.

He didn't and the boss says, I don't like that; you're fired.

There would be review of that with an excepted service employee.

Mr. Wright: --And excepted service employee who wasn't a veteran, we don't think there would be review there.

Now we have held open the possibility--

Unidentified Justice: Even if there was a flagrant violation of a regulation.

Mr. Wright: --Well, we have held open the possibility not presented here that in an appropriate case mandamus might be warranted--

Unidentified Justice: Well.

Mr. Wright: --if an agency just flatly refuses to follow its regulation.

Unidentified Justice: Your response is that that's okay, that anyway they should have just fired him for no reason at all instead of for not coming in on a day when he didn't have to come in.

Mr. Wright: No, no, but that's not our response, and an agency certainly should follow the regulations.

And we think that in the vast majority of cases they do.

But in cases involving relatively small group of federal employees which includes only nonveterans in the excepted service, I might add veterans, also known as preference eligibles, have basically the same rights that competitive service employees do.

But that nonveterans in the excepted service do serve at will, and except possibly for a mandamus action, no, they can't complain about adverse actions.

Congress, in our view, quite clearly intended that they not be able to go to court to do this.

I might add--

Unidentified Justice: --he said, if he were a competitive service employee and was charged with this offense, no adverse action against him as a competitive service employee except pursuant to Chapter 75 with all its procedural guarantees; is that right?

Mr. Wright: --Yes, if he were a competitive service employee, he would have all sorts of rights.

Unidentified Justice: He'd have all kinds of hearings and all the rest of it, wouldn't he?

Mr. Wright: Ultimately go to the Merit Systems Protection Board.

Unidentified Justice: But here he gets nothing.

Mr. Wright: And from there to the federal circuit.

Here he gets to file a grievance, which he did, and which he was awarded seven months back pay as a result of the grievance.

The question is whether he should get 30 days more back pay, and be able to go to court and claim 30 days more back pay.

Unidentified Justice: What lets him file a grievance?

Mr. Wright: The Interior regulation.

Unidentified Justice: And that could have been disregarded also and there would have been no relief except for mandamus.

Mr. Wright: That's right.

We recognize that that hypothetical... we don't think it's very likely.

We recognize that hypothetical.

And in a case like that where an employee would have no right to relief under our view, he probably could file a mandamus action.

This comes up in the classification cases following enactment of the CSRA, I might add, and it is... the courts have divided on this, but some courts have held that you can't even file a mandamus action because you can go to the special counsel.

Now it is open to this employee to go to the special counsel of the MSPB if he alleged that he had been subject to what's know as a prohibited personnel practice, which are 11 particularly troublesome practices like nepotism.

The act specifically deals with excepted service personnel, and provides that except for policy making excepted service personnel you can go to the special counsel to complain about a prohibited personnel practice.

This Respondent does not allege that he was subjected to a prohibited personnel practice.

So that--

Unidentified Justice: Was he a long... a long-time employee of the government, or a temporary employee, or what?

Mr. Wright: --He was a temporary employee.

He had worked I think for the FDA.

He took a position with the Interior Department.

He signed a piece of paper at the time he took it acknowledging... it's a very brief three-paragraph acknowledgement that's in the record that says, I understand that I'm becoming an excepted service employee, and I have no rights to any future job after this.

And that's the way he took the job.

Also as a condition, which is on the form he filled out when he took the job is that he understood that he would serve until the Young Adult Conservation Corps Camp at which he worked closed, or until a certain date in 1980, whichever was earlier, and that was about a year and a half after he was hired.

So he was hired as a short-term employee.

His position was placed in what's known as Schedule A in the regulations that list all the excepted service positions, because it was a short-term position.

Unidentified Justice: May I ask you one other question?

This case just deals with this class of employees who are nonveteran excepted service employees, or it will, basically patronage or at will... I don't know.

But in any event, how big a segment of the federal work force is it?

Mr. Wright: It's about 20 percent.

The excepted service includes--

Unidentified Justice: That's a lot of people then, isn't it?

Mr. Wright: --There are quite a few.

It includes certain employees whose agencies are removed from the competitive service.

That includes such things as the CIA, the Defense Intelligence Agency.

It includes the Judicial Branch, I'm told.

Unidentified Justice: It includes all lawyers in the Executive Branch, doesn't it?

Mr. Wright: That's right.

That's Schedule A.

Schedule A, the regulations list about 60 groups.

There are policy making employees were all in Schedule C.

Unidentified Justice: If it includes all lawyers, you must have a conflict of interest.

[Laughter]

Mr. Wright: Justice Stevens, the Office of Legal Counsel has considered that question, and has decided that it's unlikely I'll be subjected to an adverse action so I--

[Laughter]

Schedule B, working backwards, includes a lot of student positions.

There are lots of student positions in the federal government.

And Schedule A includes many short-term jobs, and a variety of other jobs that are in some ways difficult to categorize: chaplains, attorneys, Japanese interpreters, employees of federal mental institutions who were previously patients at the institutions, et cetera.

But short-term employees actually are, I'm told, more than half of the employees in the excepted service and Schedule A, and policy making employees are all of Schedule C.

I would like to point out one distinction that I haven't made that I think is very important, is the distinction between Chapter 43 of the Civil Service Reform Act, and Chapter 75.

Chapter 43 governs adverse actions based on unacceptable job performance.

Whereas, Chapter 75 governs adverse actions based on misconduct.

It's undisputed that if this employee had been dismissed for unacceptable job performance under Chapter 43, that he would have no right to challenge that action.

Chapter 43 is parallel to Chapter 75 in many ways.

It explicitly deals with each of the classes of federal employees.

It says under that chapter that excepted service nonveterans have certain procedural rights.

But it also explicitly states that only competitive service employees and veterans, those with preference eligibility, can go to the MSPB and then to the federal circuit.

The D.C. Circuit recently decided in the Harrison case, a case that no one disputes, that an excepted service employee dismissed for unacceptable behavior... unacceptable job performance, excuse me... has no right to go to court to complain about it.

We think that Congress intended the same in Chapter 75.

The difference is that in Chapter 75 it has authorized OPM to list certain excepted service positions as having rights, including the right to judicial review.

So to some extent, excepted service employees have greater rights under Chapter 75 in misconduct cases.

They do if OPM decides that they have those rights.

But OPM hasn't included this group, Respondent's group of excepted service employees within the... it has not given them the rights in Chapter 75.

Unidentified Justice: Is it that the Respondent's group can only use mandamus?

Mr. Wright: They can file grievance procedures and it's not presented here, but one would think that in an appropriate case mandamus might be warranted.

They could also go to the special counsel of the MSPB.

Unidentified Justice: --in mandamus, do you know of any one mandamus that's been granted?

Mr. Wright: We cited one in our brief in a classification case.

Unidentified Justice: Any more?

Mr. Wright: Well, if that isn't the case, it must be because agencies are following their regulations.

I would be surprised if there were many cases involving federal agencies where mandamus was granted.

Unidentified Justice: Is it not true, you say that he would have these procedural rights if he had been included by... who puts him in there?

Mr. Wright: OPM.

Unidentified Justice: By OPM with Chapter 75.

Mr. Wright: OPM in Chapter 75.11(c).

It's as clear as day--

Unidentified Justice: All right.

Mr. Wright: --that OPM can do this.

Unidentified Justice: But isn't it true that OPM has to affirmatively include him not only in order that he have those remedies, but in order that he be included within that chapter at all?

So the chapter simply doesn't apply to him unless OPM says so, including the dismissal provisions and the adverse actions provisions of the chapter.

He just is not an employee for purposes of that chapter.

Mr. Wright: I think all that chapter does is grant rights.

I don't know that it does much else.

But I suppose it says that you can only be fired for cause, but that's a right.

So he is granted no rights under the chapter, because the relevant definitional provision, which is 75.11(a) says that for the purpose of this subchapter employee means an individual competitive service who is not serving a probationary or trial period.

Unidentified Justice: Well, now wait a minute.

This is Section 7503, cause and procedure.

Mr. Wright: That's for minor adverse actions.

That's not the relevant one here.

It's the--

Unidentified Justice: Well, whatever.

It says under regulations prescribed by OPM, an employee may be suspended for 14 days or less for such cause as will promote the efficiency of the service.

I don't consider that the granting of a right, the right to be fired or suspended?

It seems to me that that's the authority for the agency to do the suspension, no?

Mr. Wright: --Well, that's the short-term... I assume you would make an analogous argument under 75.12.

Unidentified Justice: Right, right.

I just happen to see 3 first.

But 75 not only gives rights, it also is a source of authority for disciplinary action, isn't it?

Mr. Wright: Well, in the case of an excepted service employee, you don't need any authority.

So if you were covered here, then it would give him a right only to be suspended under regulations that will promote the efficiency of the service.

In the absence of that, he doesn't even have that right.

Unidentified Justice: I'm puzzled.

I thought they define the term 75, it would just be from the competitive service.

Mr. Wright: 75.11(a) says employee means an individual in the competitive service who is not serving a probationary or trial period.

(b) says a preference eligible in an executive agency in the excepted service--

Unidentified Justice: Oh, I see.

That's in 75.11.

Mr. Wright: --And then part (c)... which is the subsection governing major adverse actions, suspensions for more than 14 days or dismissals.

And (c) says, the Office of Personnel Management may provide for the application of this subchapter to any position or group of positions excepted from the competitive service.

So it is true that this employee isn't in this chapter, but that's because OPM hasn't chosen to put him there.

And in the absence of OPM putting him there, he has no rights in a case of this sort.

It seems strange that he would have more rights under Chapter 75 because he's out completely than under Chapter 43 where he is in to the extent that he gets certain procedural rights which are quite analogous to the grievance rights that OPM has granted excepted service employees under Chapter 75 and--

Unidentified Justice: When you use the term Chapter 75, you really mean Subchapter 2 of Chapter 75.

Mr. Wright: --That's the major adverse action part.

Unidentified Justice: Because in Subchapter 1 they don't have that same definition.

Mr. Wright: No.

Subchapter 1 is minor adverse actions.

No one gets a right to judicial review under Subchapter 1, and it has been argued in a number of cases, analogous to the argument here, that because minor adverse actions aren't covered there, that that employees, they are not excluded in any way; that employees can go to court under the Tucker Act to complain about minor adverse actions just as they can't... we argue analogously that they can't here.

One last point I'd like to make is that besides being undisputed that under Chapter 43 employees cannot go to court, it is undisputed that probationary employees who are excluded from Chapter 75, in the same sentence that I just read of 75.11(a), cannot complain about adverse actions either.

And that's even though the Greenway decision, which is the basis for the implied cause of action here, held that a probationary excepted service employee was entitled to go to the old Court of Claims.

We don't think any distinction can be drawn between probationary and excepted service employees in the way they are treated in Chapter 75, and we think it's plain, as we state in our briefs, that Congress didn't want to make a federal case out of adverse actions taken against these sorts of employees.

If there are no questions, I would like to reserve the remainder of my time.

Chief Justice William H. Rehnquist: Thank you, Mr. Wright.

Mr. Nannes, we will hear now from you.

ORAL ARGUMENT BY JOHN M. NANNES ON BEHALF OF THE RESPONDENT

Mr. Nannes: Mr. Chief Justice, and may it please the Court.

The judgment of the Court of Appeals below rests upon three propositions, all of which are important and two of which the government does not contest.

First, Mr. Fausto was discharged in violation of agency regulations.

The Department of Interior regulations provided that a career-type, nonpreference excepted service employee who was discharged had a right to receive notice in a discharge decision of his right to pursue the agency grievance mechanism.

And the regulations of the Department of Interior further provide for the small universe of employees that they had a right to a full evidentiary hearing if they were being discharged for cause.

It is undisputed that Mr. Fausto was not provided these rights at the time that he was discharged, and I do not understand the government to contest that the agency fulfilled its obligation under the regulations.

Thus, this case comes to the court with the concession by the government that the agency violated its regulations.

Second, Mr. Fausto would have been entitled to judicial review if he had been discharged prior to passage of the Civil Service Reform Act of 1978.

The government endeavors in its reply brief, and it has made the point once more here today that that is somehow an implied right or a judicially implied right.

But I would submit to the court that prior decisions of this court and of the old Court of Claims support the proposition that that was a statutory right of judicial review.

The combination of the Tucker Act, which provides for a cause of action when there has been a violation of an agency regulation, in conjunction with the Back Pay Act, which is a money mandating remedy, and the violation by the agency in this instance of his procedural regulations, provided Mr. Fausto with a statutory cause of action.

The Greenway decision, which happens to be one of the cases that the court below cited, is by no means the only case holdings in that manner.

Indeed, if the court goes back and looks in the aftermath of its decision almost 30 years ago in Vitarelli v. Seaton, it will find that the employee who was there wrongfully discharged was then reinstated by his agency.

He contended that the back pay that the agency had awarded him was insufficient, and he filed a cause of action in the old Court of Claims, and that cause of action was sustained.

It is very much a statutory cause of action, and it preceded the enactment of the Civil Service Reform Act.

Third, the Court of Appeals below found that there was no evidence that Congress intended when it enacted the Civil Service Reform Act of 1978, to repeal rights of judicial review that previously would have been available to employees such as Mr. Fausto.

This is certainly a proposition that the government does contest, and thus, the issue presented for this court is whether it is fairly discernable that when Congress enacted the Civil Service Reform Act, that it intended to extinguish or repeal statutory right that otherwise would have continued to be available to nonpreference excepted service employees such as Mr. Fausto.

Notably, Your Honors, the government does not rely upon any specific preclusion language in the Civil Service Reform Act itself.

There is indeed no provision in that act, Chapter 75 or elsewhere, that specifies that prior remedies that had been available to other types of employees were intended to be extinguished by the Congress.

Thus, under the holding of this court almost 30 years ago in Vitarelli v. Seaton, Mr. Fausto has a right of judicial review to obtain review of his discharge in violation of agency regulations.

The government seeks to distinguish Vitarelli on the proposition that Congress had not specifically indicated with respect to the statute there involved an intention to preclude judicial review.

But I would note for the court that the statute pursuant to which Mr. Vitarelli was discharged provided the Secretary of Interior with a right to discharge him that would be "final and conclusive" in the language of the statute.

And there is certainly nothing of an analogous preclusionary sort in the Civil Service Reform Act.

And yet, in Vitarelli a right of judicial review was upheld.

Instead, the government relies upon broad arguments drawn from a so-called statutory scheme.

It is certainly true that in other provisions of the Civil Service Reform Act, such as Chapter 23, which deals with prohibitive personnel practices, and Chapter 43, that deals with performance appraisal standards, that various rights are accorded to nonpreference excepted service employees.

But the inclusion of references to those employees in Chapter 23 and Chapter 43 simply provide no guidance to the court as to what the congressional intention was underlying enactment of Chapter 75.

It is notable that the government ignores the legislative history underlying that chapter, but it nevertheless tries to draw broad conclusions based on the statutory scheme.

The legislative history demonstrates quite conclusively that when Congress enacted Chapter 75 it had a far more limited objective in mind.

Part of the purpose underlying Chapter 75 was to transfer the adjudicatory jurisdiction over employee appeals that had formerly resided in the old Civil Service Commission, and instead, to transfer that to the new agency, the Merit Systems Protection Board, and that Congress also intended thereby to consolidate judicial review of such decision in what has now become the Federal Circuit, rather than to permit actions to be initiated in district courts throughout the country under the Administrative Procedure Act.

There is simply no indication in the legislative history underlying Chapter 75 that Congress was intending thereby to change the rules that had previously been available to nonpreference excepted service employees.

What Congress did--

Unidentified Justice: What about to other employees?

Mr. Nannes: --I'm sorry?

Unidentified Justice: Would other employees continue to have their pre-existing rights to get into federal court--

Mr. Nannes: No, Your Honor.

Unidentified Justice: --apart from the scheme set forth in Chapter 75 of getting there after going through the MSPB?

Mr. Nannes: No, Your Honor.

We would take the position that with respect to employees who are defined as covered by Chapter 75, that the Chapter 75 rights do provide an exclusive enumeration of the rights to which they are entitled.

So that, for example, in the numerous Courts of Appeal cases where employees who are covered by Chapter 75 have endeavored to assert rights either as an implied cause of action or under the Administrative Procedure Act, those rights have... those efforts have been rebuffed and rejected.

Unidentified Justice: Isn't there a certain irony there then that the people not covered by Chapter 75 can go directly to court, whereas those who are covered have to work their way up through the administrative procedure?

Mr. Nannes: Your Honor, I think there certainly would be if that were the fact applicable to Mr. Fausto, and the government endeavors to characterize Mr. Fausto's rights as I think more powerful engines of enforcement, for example, than are available to competitive service employees.

In point of fact, a nonpreference excepted service employee such as Mr. Fausto was required to exhaust his administrative grievance system.

In this case, that was a three-tier system of administrative review, and it took him from January 1981 until February 1985 to get a full determination of--

Unidentified Justice: What was the source of the authority requiring him to exhaust the administrative remedies?

Mr. Nannes: --Your Honor, I don't believe that there was a specific exhaustion requirement.

But I think either as a doctrine of primary jurisdiction, or some analogue, had he gone right from his discharge decision into the Claims Court, the Claims Court either would have dismissed or would have stayed and required him to exhaust.

But the notable feature here, I would suggest to the court, is that an employee who is defined within the coverage of Chapter 75 is not required, and indeed is prohibited from pursuing the agency grievance system.

Unidentified Justice: Unless the agency establishes a grievance system for this category of employee, which it is under no obligation to do, the situation would be that he could go directly to federal court, whereas those employees of a supposedly more protected status would have to go to the MSPB.

Mr. Nannes: Your Honor, I think there are two responses to that.

First--

Unidentified Justice: And indeed, in some cases would not even be able to go to the MSPB; would have no relief, depending upon what the level of the sanction was, except asking the counsel to consider their grievance, whereas he would be able to go federal court no matter what.

Mr. Nannes: --Your Honor, in the first instance, the Office of Personnel Management has promulgated regulations that do require all agencies to promulgate and adopt an agency grievance mechanism.

Unidentified Justice: Well, that's a fortunate happenstance, but that doesn't speak to the rationality of the legislative scheme that does not require such a regulation to be issued.

And the fact is that in the absence of such regulation, he would come directly to federal court, whereas the more protected employees would have to go through the MSPB, and in some cases wouldn't even have that available.

They would have to go to the General Counsel with a discretionary authority on his part to press their grievance.

Mr. Nannes: If an employee such as Mr. Fausto were to endeavor to do so, he would be met I think with a more formidable problem, because he would have no agency regulation that had been violated to predicate his claim under the Tucker Act.

It's only the agency's disregard of its grievance right and its right to a hearing that is conferred upon Mr. Fausto that provide the regulation basis for his Tucker Act claim.

So it may be true that he would have an opportunity to file his complaint, but it's unlikely to be one that would be of substantive import.

Unidentified Justice: Well, that's the case with his particular grievance, but you can have another grievance that doesn't consist of the lack of a promised hearing.

Mr. Nannes: Well, to the extent, Your Honor--

Unidentified Justice: Something else that went wrong in the adverse action.

Mr. Nannes: --Well, I think there might be some difficulty if an employee were endeavoring to try to get a court to review the merits of the claim.

So we are simply confining the argument to a situation where an employee was denied procedural rights to which he was entitled under the grievance system.

Unidentified Justice: But do you agree that absent some regulation giving a person in the excepted service some both either substantive right or procedural right, that person is subject to termination at will?

Mr. Nannes: Yes, Your Honor.

If there is no regulation that constrains the ability of the agency to discharge, then the... or any statute that does so, then the employee would be subject to discharge.

Unidentified Justice: Doesn't Chapter 43 include the employees in the excepted service?

Mr. Nannes: Yes, Your Honor, it does.

Unidentified Justice: And deals with people like Fausto.

Mr. Nannes: Yes, Your Honor, it does.

Unidentified Justice: And says that... and sets up some required procedures for personnel actions?

Mr. Nannes: Formal actions.

Yes, Your Honor, it does.

And employee in Mr. Fausto's--

Unidentified Justice: So the statute at least in some respects does deal with the excepted service--

Mr. Nannes: --Absolutely, Your Honor, and I would concede that.

The difficulty that the government has, though, with extrapolating from that proposition to the conclusion it tries to reach is that it wants to ignore the legislative history underlying the specific provisions.

Chapter 23 and 43 and 75 may have been enacted as part of a single statute, but the origin and evolution of those provisions are really quite distinct and quite different.

There was no predecessor to Chapter 43, for example, and thus, everything that Congress did there was writing on a new slate.

Whereas if you look at the practice prior to--

Unidentified Justice: --At least on the face of the statute, the statute deals with the excepted service in Chapter 43, and just doesn't provide for the same kinds of remedies as the nonexcepted employees.

Mr. Nannes: --Yes, Your Honor, that's absolutely correct.

The argument that we would make is that--

Unidentified Justice: Well, it must be that Congress was probably aware of the statute it was passing regardless of the origin of the various chapter.

Mr. Nannes: --Oh, I'm sure it was aware of it, Your Honor.

I guess the objective I... or the point I would simply urge upon the court is that prior to enactment of the 1978 act, competitive service employees had the right to appeal to the old Civil Service Commission.

That was by executive order.

And veterans had the right to appeal established by statute to the old Civil Service Commission.

And what we maintain is simply that when Congress endeavored to abolish the old Civil Service Commission and to substitute the Merit Systems Protection Board, it simply brought forward and transferred over to that appellate process the same employees who had formerly enjoyed those rights prior to the act.

Since, of course, Mr. Fausto prior to 1978 would have had a right to pursue his claim under the Tucker Act, we argue that the mere transfer of those responsibilities by Congress in 1978 cannot be read so broadly as to extinguish rights that he otherwise would have enjoyed.

Unidentified Justice: Mr. Nannes, if I understand it, you are not relying at all on the fact that the dismissal in this case invoked the unauthorized use of the government vehicle statute.

You would be here even if the dismissal had just been for no cause at all.

You would say that even on that basis if the agency didn't comply with its regulation, you would be entitled to go to court.

Mr. Nannes: It might be... it might have been exceptionally more difficult for Mr. Fausto to so proceed because he was relying upon the rights established for him by regulation.

And if we define out those regulatory violations, then he might have no predicate basis upon which to file in the Claims Court.

Unidentified Justice: The regulatory violations being what now?

Mr. Nannes: In this instance it was the failure to notify him of his right to grieve, and the failure to accord him a formal hearing--

Unidentified Justice: Wouldn't he have a right to grieve if he had been fired for no reason at all?

Or let's say he was fired for inefficiency.

Mr. Nannes: --If he had been fired for inefficiency such that it would be regarded as a Chapter 43 dismissal, adverse action based on nonperformance, or misperformance, he would then be governed by Chapter 43 procedures and he would not have had a right to judicial review, although he would have had certain administrative rights to notice.

Unidentified Justice: Would he have had to have notice?

Mr. Nannes: He would have had to have notice, I think an opportunity to answer and a written decision.

Unidentified Justice: Mr. Nannes, do you think the decision below is consistent with the Carducci case?

Mr. Nannes: It's certainly consistent, Your Honor, with respect to the result reached, because it--

Unidentified Justice: What about employees subject to very short suspensions, can they go to the Claims Court, do you suppose?

Mr. Nannes: --Let's see, I guess if we were--

Unidentified Justice: Under your view.

Mr. Nannes: --If we were speaking certainly of employees who were in the competitive service, or preference eligible employees, employees who are covered within the scope of Chapter 75--

Unidentified Justice: Well, if an employee is suspended for 14 days or less, there is no right to judicial review under the CSRA, is there?

Mr. Nannes: --That's correct, Your Honor.

Unidentified Justice: But under your view of the decision below if we were to affirm, they might have a Claims Court remedy?

Mr. Nannes: I think that result would certainly not follow with respect to competitive service and preference eligible employees, because under the reasoning of the Carducci decision and the legislative history underlying Chapter 75, it was intended to be exclusive for employees within the reach.

Unidentified Justice: So the result would be that civil service employees subjected to short-term suspensions would have no right to go to the Claims Court if your view prevails.

Mr. Nannes: I think that's correct, Your Honor.

I suppose--

Unidentified Justice: But these--

Mr. Nannes: --Excuse me.

Unidentified Justice: --But these excepted service employees would even for the 14-day suspension or less.

Mr. Nannes: Well, I'm not sure that that conclusion automatically follows.

I have some difficulty offering up a distinction.

Unidentified Justice: It just seems so inconsistent and ironic.

Mr. Nannes: I understand that, Your Honor.

I think as a practical matter Mr. Fausto did not seek judicial review in this instance, nor if we hypothesize a 13-day suspension, is he likely to be able to obtain judicial review of the merits of the agency determination.

All that would be left, I think, is the possibility that he might be able to complain of an agency disregard of his procedural violations, and then it starts to get very close to what Mr. Wright referred to his opening argument as a proper case for possible mandamus.

But by and large, I do not think that affirmance of the decision below would have the practical consequence of opening up the Claims Court or any other court to efforts to obtain judicial review with respect to--

Unidentified Justice: Although it might.

I mean they just don't fit.

Mr. Nannes: --I don't think they fit 100 percent, Your Honor.

But I think that the area that's left as a gap is a relatively small one, and one that presumably could be corrected by either administrative regulation, or certainly a congressional act.

In the absence of broad language either of a specific preclusive sort or of a statutory scheme that supports its broad characterization of the effort by Congress to preclude judicial review, the government does make certain illusions to the possibility of anomalous or illogical results by virtue of the fact that an excepted service employee such as Mr. Fausto might be able to get into court more quickly than might a competitive service or a preference eligible employee.

I think the fact that the competitive service employee enjoys the rights that are conferred by Chapter 75 is indeed a very substantial advantage and was intended specifically by Congress to confer additional rights on those employees.

An employee who is entitled to Chapter 75 rights has an opportunity to appeal directly from the initial agency decision to the Merit Systems Protection Board, is accorded a statutory right to an expeditious decision in a proceeding in which the agency bears the burden of proof, and thereafter can go directly to the federal circuit.

Unidentified Justice: Is Mr. Fausto entitled not just to judicial review of whether the agency had violated its regulation in failing to give him notice, but also review of whether in fact he had been guilty of unauthorized use of a government vehicle as the agency asserted?

Mr. Nannes: Your Honor, I think a distinction could be drawn between the two.

The record in this case--

Unidentified Justice: I know that.

Do you draw it?

Mr. Nannes: --I draw the distinction at least insofar as to say that the manner in which this case comes to this court is only in the former situation.

Because when Mr. Fausto filed suit in the Claims Court, there had already been an administrative determination that his discharge had been unwarranted and unjustified.

And the question left for judicial review is whether he had been made whole under the terms of the Back Pay Act.

It would have been a far different matter, and I think no great concession to say that it would have been far more difficult for him to maintain that he had an opportunity for the court to review the merits of the determination of the--

Unidentified Justice: Why?

Wouldn't the old law have given him that?

Mr. Nannes: --Well, with respect to an excepted service employee, Your Honor, I think he has to look, since he does not have a right by statute to discharge by cause, to whether the regulation provides him with such a right.

In the absence of a regulation that provided him with a right to be discharged only for cause, it's hard for me to understand how there would be a record or an evidentiary basis for him to seek a merit's based determination.

Unidentified Justice: Don't you think this could be termed a discharge for unsatisfactory performance?

Mr. Nannes: I do not think so, Your Honor.

The effort that I think Congress had in mind with respect to dividing--

Unidentified Justice: Well, did he misuse government vehicles in the course of his job?

Mr. Nannes: --No, Your Honor.

The allegation in the complaint... I'm sorry.

The allegation on the administrative record as to what the misuse involved was a circumstance in which over a weekend he endeavored to drive a ill child from his base... his detail duty spot in New York to the family home in Virginia.

Mr. Fausto was under the impression that since he had been detailed and his detail included authorization to use a governmental vehicle, that he had the discretion to utilize the vehicle.

Unidentified Justice: Well, his claim was then that it was within the proper performance of his job.

Mr. Nannes: Yes, Your Honor, except as you and I understand the term, I think we would characterize if you drive your family, it's personal use.

But there are elements in the regulations that indicate that it may not be unofficial use if you use a car within the scope of the detail and the authorization that you have been provided for that car.

But as I say, that's not an issue that was presented to the Claims Court in terms of a merit's based determination.

It simply went to the propriety of the back hold remedy.

For a period of time not substantially less than 30 years, this court has stressed the necessity that employing agencies adhere to their regulations, and has upheld the ability of employees to obtain judicial review when the agencies do not, at least in the absence of a clear expression by Congress of an intention to preclude such review.

The Supreme Court in Vitarelli, for example, was unanimous in this respect, with all of the justices indicating that they subscribe to this basic proposition.

Thus, we return once again to the issue that I--

Unidentified Justice: --have a determination that the agency violated its regulations.

Mr. Nannes: --I'm not sure I understand your--

Unidentified Justice: Well, it's been determined already that his discharge was unwarranted.

Mr. Nannes: --Yes, Your Honor.

In this particular instance, the narrow issue presented is whether he was made whole.

Unidentified Justice: Well, he doesn't need... he doesn't need any court review to establish that.

Mr. Nannes: In this instance, that's is correct.

Unidentified Justice: Just a question of the scope of his remedy.

Mr. Nannes: Yes, Your Honor, that's correct.

Mr. Fausto's claim as it reached the Claims Court is whether he had been made whole within the meaning of the Back Pay Act, because if he had not been wrongfully discharged, he would have been on site and had other opportunities to compete for other government jobs at a time when his position was otherwise abolished.

We submit to the Court, Your Honors, there simply is not a basis upon which the court can fairly discern that Congress intended to repeal rights that this man would have otherwise had to obtain judicial review of the completeness of the remedy that he was awarded by the agency for his wrongful discharge.

The government has not dispelled the substantial doubt that this was Congress' intent.

And the government's argument based on statutory scheme makes sense only if the court disregards the legislative history underlying Chapter 75 itself.

If the court looks at the legislative history underlying Chapter 75, we submit that it must reach the conclusion that Congress did not have an intention to address the availability of judicial review of nonpreference excepted service employees.

Unidentified Justice: Well, I guess they argue that we should look at the entire structure of Chapter 43 and 75, and the whole picture; not just isolate 75.

Mr. Nannes: Yes, Your Honor.

I mean, I certainly would not suggest to the court that the court should not look at Chapter 23 and 43.

But I think there is a limit as to the conclusions one can draw from a review of all the statutory provisions.

They have very different legislative histories and backgrounds, and they simply, I would submit, are unhelpful in educating the court as to what Congress may have intended with respect to Mr. Fausto at a time that it enacted Chapter 75 which merely codified existing practice and transferred judicial review to the Merit Systems Protection Board, and thereafter to the federal circuit.

If the court has no further questions, thank you.

Chief Justice William H. Rehnquist: Thank you, Mr. Nannes.

Mr. Wright, you have four minutes remaining.

ORAL ARGUMENT BY CHRISTOPHER J. WRIGHT ON BEHALF OF THE PETITIONER -- REBUTTAL

Mr. Wright: I would like to very briefly address the nature of what actually happened.

Mr. Fausto was notified that the agency intended to discharge him, and he was allowed to respond to that before he was discharged.

The error that was committed, and the only error that was committed was that the agency did not then tell him that he had a right to file a grievance.

A year later, after the camp at which he closed... at which he worked had closed, the agency realized that it had made a mistake.

It then told him he could file a grievance.

He did file a grievance.

He was awarded seven months back pay; back pay from the date the mandatory 30-day suspension would have ended, until the camp closed.

What was subsequently held by the federal circuit was that even though it had done that and granted him his grievance rights, and even though a 30-day suspension was mandatory, that somehow the agency lost its right to suspend him for 30 days as a result of failing to notify him of the right to filing a grievance such that the grievance proceeding occurred late in the day.

Unidentified Justice: --goes to whether they should have decided anything?

I mean is the--

Mr. Wright: No, I... but I just wanted to set--

Unidentified Justice: --Yes.

Mr. Wright: --clear that the only mistake here was failing to notify him that he had a right to a grievance.

One point that's worth noting is that one area that Congress wanted employees, including nonveterans and the excepted service to still be able to file claims in court, was in discrimination cases.

And as we have pointed out, Congress in Section 7707 and 7702 has very carefully integrated the procedures in discrimination cases with the procedures it set up in Chapters 43 and 75.

So in that area Congress wanted to preserve a right.

It preserved it.

The final point I'd like to make is that there are indeed anomalous results flowing from the court's decision below.

The amicus has told us that even though it's undisputed that a veteran competitive service employee cannot go to court to challenge a 10-day suspension, he thinks that an excepted service employee could.

There is anomaly in Section... Chapter 43 versus Chapter 75 that we have discussed.

And finally, there is a short of reverse anomaly even though probationary employees are excluded from Chapter 75 in the same sentence of the same subsection as excepted service employees.

It is thought that they, of course, have no right of action, whereas this employee does.

We don't think that's right.

We think Congress clearly meant to exclude nonveterans excepted service personnel and probationary employees from going to court except in discrimination cases.

Thank you.

Chief Justice William H. Rehnquist: Thank you, Mr. Wright.

The case is submitted.