UNITED STATES OF AMERICA, PETITIONER V. JOSEPH A. FAUSTO No. 86-595 In the Supreme Court of the United States October Term, 1986 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Federal Circuit Reply Memorandum for the United States In our petition (at 9-10) we demonstrated that the court of appeals' decision that respondent may obtain judicial review under the Tucker Act, 28 U.S.C. 1491, presents a recurring question of considerable practical importance, as the court below twice noted (Pet. App. 3a, 12a). We also established (Pet. 11-12) that the decision below conflicts with the decisions of other courts of appeals, which have held that the comprehensive scheme set forth in the Civil Service Reform Act (CSRA) demonstrates that Congress intended to preclude review of adverse personnel actions under more general statutes. See, e.g., Pinar v. Dole, 747 F.2d 899, 912-913 (4th Cir. 1984), cert. denied, 471 U.S. 1016 (1985); Veit v. Heckler, 746 F.2d 508, 510-511 (9th Cir. 1984); Carducci v. Regan, 714 F.2d 171, 173-175 (D.C. Cir. 1983). Respondent does not dispute our contention that the question presented is an important question that is likely to affect a large number of cases. However, respondent disputes our claim that there is a conflict in the circuits. He notes (Br. in Opp. 11) that the court of appeals distinguished the decisions of other circuits on the basis that the employees in those cases were subject to the adverse action provisions of the CSRA and were seeking an additional remedy. Respondent argues that the court below correctly distinguished those cases because he is not covered by the CSRA. Contrary to that argument, we demonstrated in our petition (at 12-13) that the court below clearly erred in distinguishing this case from the decisions of other circuits on the basis that non-veterans in the excepted service are not covered by the CSRA. Employees such as respondent are covered by the CSRA, although they are precluded from obtaining judicial review of adverse personnel actions and are generally limited to seeking relief from the Office of the Special Counsel (OSC), and may obtain relief from the OSC only if they have been subjected to a "prohibited personnel practice" (see 5 U.S.C. 2302). Futhermore, as we also demonstrated in our petition (at 13-14), the fact that Congress has granted employees such as respondent very limited rights under the CSRA does not support the court of appeals' conclusion that Congress did not intend to preclude review under the Tucker Act. Rather, it demonstrates that Congress did not desire that such employees be able to obtain judicial reivew of adverse personnel actions unless the Office of Personnel Management (OPM) extended appeal rights to them as provided by 5 U.S.C. 7511(c) (Pet. App. 36a). Respondent suggests (Br. in Opp. 11, 13-14) that the Ninth Circuit's recent decision in Kotarski v. Cooper, 799 F.2d 1342 (1986), diminishes the conflict between the court below and that circuit. In fact, the decision in that case, as well as two recent decisions of the District of Columbia Circuit, Spagnola v. Mathis, No. 84-5530 (Dec. 5, 1986), and Hubbard v. EPA, No. 85-5145 (Dec. 5, 1986), demonstrate that there is continuing disagreement in the courts of appeals regarding the preclusive effect of the CSRA. Review by this Court is warranted to resolve that disagreement. In Kotarski the court considered a Bivens claim brought by a federal employee who was demoted from a supervisory position during the probationary period he was required to serve as a new supervisor (see 5 U.S.C. 3321(a)(2). /1/ Probationary employees are treated much like non-veteran excepted service employees under the CSRA, in that neither may obtain judicial review of adverse personnel actions under the CSRA (see 5 U.S.C. 4303(f) (Pet. App. 34a) and 7511(a)(1) (Pet. App. 36a)), although both types of employees may complain to the OSC. Despite this Court's decision in Bush v. Lucas, 462 U.S. 367, 388 (1983), that a federal employee could not bring a Bivens action in light of the "elaborate remedial system that has been constructed step by step, with careful attention to competing policy considerations," a divided panel of the Ninth Circuit held in Kotarski that the Plaintiff was not barred from bringing suit by the CSRA. Much like the court below, the Ninth Circuit concluded that the plaintiff could proceed with his Bivens action because his remedies under the CSRA were limited in comparison with the remedies available to other federal employees, such as the plaintiff in Bush v. Lucas. The District of Columbia Circuit has already expressed its disagreement with the Ninth Circuit's decision in Kotarski. Hubbard involved a claim brought by an unsuccessful job applicant whose only remedies under the CSRA were to seek relief from the OPM under 5 U.S.C. 3318(b)(1) or to file a claim with the OSC (slip op. 13). The court held that the plaintiff was precluded from bringing a Bivens action. The court described the decision in Kotarski as "unpersuasive," stating that "we believe that decision misinterprets Bush and fails to consider fully the disruptive influence of Bivens actions on the civil service" (slip op. 20 n.14). On the same day that it issued its opinion in Hubbard, the District of Columbia Circuit held in Spagnola that a federal employee who claimed that he had been denied a promotion improperly could bring a Bivens action. As did the Ninth Circuit in Kotarski, the court distinguished Bush v. Lucas on the basis that the plaintiff's only remedy under the CSRA, an appeal to the OSC (Spagnola, slip op. 10), was inadequate. The court acknowledged that its decision conflicted with the Fourth Circuit's decision in Pinar (id. at 21-22), and also noted that its decision was consistent with the Ninth Circuit's decision in Kotarski (Spagnola, slip op. 9-10 n.5). The two panels of the District of Columbia Circuit recognized that their decisions conflict with each other and recommended rehearing en banc on the Bivens issue. Hubbard, slip op. 2 n.3; Spagnola, slip op. 3 n.1. /2/ Although the court in Spagnola held that the CSRA did not preclude the plaintiff from pursuing a Bivens action, the court stated that "Congress meant the CSRA to be the exclusive statutory remedy for aggrieved federal employees" (slip op. 25 (emphasis added)). It accordingly held that the CSRA foreclosed the plaintiff from bringing a claim under 42 U.S.C. 1985(1). The court concluded that the plaintiff in Spagnola would have had a claim under Section 1985(1) but for the preclusive effect of the CSRA (slip op. 25-28), just as the court below held that, prior to the enactment of the CSRA, expected service employees could obtain review under the Tucker Act. The court in Spagnola nevertheless held that the plaintiff's Section 1985(1) claim was barred by the CSRA implicitly eliminated a right of action that prevously existed" (714 F.2d at 173 (emphasis in original)). Furthermore, the court held that the plaintiff in Spagnola was barred from bringing a Section 1985(1) claim even though his only remedy under the CSRA was to seek relief from the OSC, which had decided to take no action (slip op. 6). Thus, even the panel that held, despite this Court's decision in Bush v. Lucas, that a government employee with limited remedies under the CSRA may pursue a Bivens action disagreed with the position taken by the court of appeals in this case. Accordingly, it is clear that the courts of appeals are divided on the question presented. In addition to the cases cited in our petition, the District of Columbia Circuit's decision in Spagnola is flatly contrary to the decision below. The courts are also divided on the related question whether the CSRA precludes federal employees from bringing Bivens actions challenging personnel decisions, as the recent decisions of the Ninth and District of Columbia Circuits illustrate. For the foregoing reasons and the additional reasons stated in the petition for a writ of certiorari, it is respectfully submitted that the petition for a writ of certiorari should be granted. CHARLES FRIED Solicitor General DECEMBER 1986 /1/ In addition to bringing a Bivens claim, the plaintiff in Kotarski sought review under the Administrative Procedure Act (APA) and the Tucker Act. The court held that review under the APA was precluded by Veit (799 F.2d at 1350), where the court held that "the comprehensive nature of the procedures and remedies provied by the CSRA indicates a clear congressional intent to permit federal court review as provided in the CSRA or not at all" (746 F.2d at 511). The court also held that the district court lacked jurisdiction over the plaintiff's Tucker Act claim, remanding for consideration as to whether that claim should be transferred to the Claims Court (799 F.2d at 1344-1345). Contrary to respondent's suggestion (Br. in Opp. 11-12), nothing in the court's opinion can be read as holding that the plaintiff's Tucker Act claim is not barred by the CSRA. /2/ Since, as the Spagnola panel noted, its decision conflicts with Pinar but is consistent with Kotarski, there will be a conflict in the circuits on the Bivens issue no matter how the District of Columbia Circuit resolves the conflict between Hubbard and Spagnola.