In November, 1980, the Department of the Interior Fish and
Wildlife Service (FWS) advised respondent, a nonpreference eligible
employee in the excepted service, that it intended to dismiss him
for a number of reasons, including unauthorized use of a Government
vehicle. After he was discharged without being informed of
grievance rights granted to him by the FWS regulations, respondent
sought review by the Merit Systems Protection Board (MSPB), which
dismissed his appeal on the ground that, under the Civil Service
Reform Act of 1978 (CSRA), a nonpreference eligible in the excepted
service has no right to appeal to the MSPB. In 1982, the FWS
reconsidered the matter, concluded that only a 30-day suspension
for misuse of a Government vehicle was warranted, and offered
respondent backpay from the date the suspension would have ended
until the date the program for which he was hired closed. On
respondent's appeal, the Secretary of the Interior upheld the FWS
decision, rejecting respondent's claims that his suspension was
unwarranted and that he was entitled to additional backpay for the
30 days and a period beyond the close of the program. Respondent
then filed this action under the Back Pay Act in the Claims Court,
which dismissed on the ground that the CSRA was exclusively
applicable and did not provide for judicial review in this
situation. The Court of Appeals reversed and remanded, holding that
respondent could seek Claims Court review traditionally available
under the Tucker Act based on the Back Pay Act, that his suspension
was wrongful, and that he was entitled to backpay for the period of
the suspension.
Held: The CSRA, which affords to nonpreference
eligibles in the excepted service no administrative or judicial
review of adverse personnel action of the type involved here,
precludes judicial review for those employees under the Tucker Act
based on the Back Pay Act. The CSRA was designed to replace the
haphazard arrangements that had built up over almost a century with
one integrated system for administrative and judicial review of
adverse personnel action. The Act's comprehensive nature, its
attention throughout to the rights of nonpreference excepted
service employees, and the structure of the Act combine to
establish that its failure to include these employees in the
provisions for administrative and judicial review of the type of
adverse personnel action involved
Page 484 U. S. 440
here represents a congressional judgment that judicial review is
not available. Interpreting the CSRA to foreclose review in this
case is not contrary to the established principle of statutory
construction that Congress will be presumed to have intended
judicial review of agency action unless there is "persuasive
reason" to believe otherwise. Here, in view of the statutory
scheme, there is ample basis for applying the exception contained
in the principle. Moreover, the principle of statutory construction
disfavoring repeals by implication is not applicable here with
regard to the CSRA's effect on the Back Pay Act. Rather, the
classic judicial task of reconciling laws is involved. Pp.
484 U. S.
443-455.
783 F.2d 1020 and 791 F.2d 1554, reversed.
SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, BLACKMUN, and O'CONNOR, JJ., joined.
BLACKMUN, J., filed a concurring opinion,
post, p.
484 U. S. 455.
STEVENS, J., filed a dissenting opinion, in which BRENNAN and
MARSHALL, JJ., joined,
post, p.
484 U. S.
455.
JUSTICE SCALIA delivered the opinion of the Court.
Respondent Joseph A. Fausto, an employee of the Department of
the Interior Fish and Wildlife Service (FWS), was suspended from
his job for 30 days because of unauthorized use of a Government
vehicle. The United States Court of Appeals for the Federal Circuit
held that he could maintain a suit for backpay in the United States
Claims Court alleging that his suspension was in violation of
Department of the Interior regulations. We granted certiorari to
decide whether the Civil Service Reform Act of 1978 (CSRA or Act),
Pub.L.
Page 484 U. S. 441
95-454, 92 Stat. 1111
et seq. (codified, as amended, in
various sections of 5 U.S.C. (1982 ed. and Supp. IV)), which
affords an employee in respondent's situation no review of the
agency's decision, precludes such a Claims Court suit.
I
Respondent was hired by FWS in January, 1978, as an
administrative officer for the Young Adult Conservation Corps camp
in Virginia Beach, Virginia. His position was in the excepted
service, [
Footnote 1] and was
to last for the duration of the Conservation Corps program at
Virginia Beach, but not beyond September 30, 1982.
In November, 1980, FWS advised respondent that it intended to
dismiss him for a number of reasons, including unauthorized use of
a Government vehicle. After respondent replied to the charges, he
received a memorandum from FWS informing him that he would be
removed effective January 16, 1981. That memorandum did not advise
respondent of his grievance rights under Department of the Interior
regulations, which included the right to a formal hearing
conducted
Page 484 U. S. 442
by a grievance examiner.
See Department of the Interior
Federal Personnel Manual -- 231, pt. 370 DM, ch. 771, subch. 3,
3.22A (May 4, 1981). [
Footnote
2]
Respondent sought review of his removal with the Merit Systems
Protection Board (MSPB), which dismissed his appeal in August,
1981, on the ground that, under the CSRA, a nonpreference eligible
in the excepted service has no right to appeal to the MSPB.
Fausto v. Department of Interior, No. PH 075281102271
(M.S.P.B. Aug. 27, 1981),
aff'd, 738 F.2d 454 (CA
Fed.1984) (judgment order). On September 18, 1981, FWS permanently
closed the camp at Virginia Beach. In March, 1982, in response to
an inquiry initiated on behalf of respondent, FWS admitted that
respondent had not been informed of his grievance rights, and
offered him the opportunity to challenge his removal. Respondent
filed a formal grievance, and on June 30, 1982, FWS concluded,
based on the administrative file and without a hearing, that
respondent should not have been removed. FWS found that most of the
charges against respondent were
de minimis and warranted
no penalty, but imposed a 30-day suspension for misuse of a
Government vehicle.
Se 31 U.S.C. § 638a(c)(2) (1976 ed.)
(now codified at 31 U.S.C. § 1349(b)). FWS offered respondent
backpay from February 15, 1981, the date his 30-day suspension
would have ended, through September 18, 1981, the date the camp was
closed.
Respondent filed an appeal with the Department of the Interior,
claiming that his suspension was unwarranted and that he was
entitled to additional backpay for the period covered by the
suspension as well as for the period from the date on which the
camp closed through the date on which FWS admitted that he should
not have been removed. The Secretary of the Interior upheld FWS's
decision.
Page 484 U. S. 443
In February, 1983, respondent filed the present action under the
Back Pay Act, 5 U.S.C. § 5596, in the Claims Court. The Claims
Court dismissed, holding that the CSRA comprised the exclusive
catalog of remedies for civil servants affected by adverse
personnel action. 7 Cl.Ct. 459, 461 (1985). The Federal Circuit
reversed and remanded, 783 F.2d 1020 (1986), holding that, although
the CSRA did not afford nonpreference excepted service employees a
right of appeal to the MSPB, it did not preclude them from seeking
the Claims Court review traditionally available under the Tucker
Act, 28 U.S.C. § 1491, based on the Back Pay Act. 783 F.2d at
1022-1023. On the merits, it found Fausto's suspension wrongful,
and awarded backpay for the period of the suspension.
Id.
at 1023-1024. The Court of Appeals denied the Government's petition
for rehearing of the case en banc, but issued a second panel
opinion reaffirming its decision. 791 F.2d 1554 (1986).
The Government petitioned for certiorari on the question whether
a nonveteran member of the excepted service may obtain, under the
Tucker Act, judicial review of adverse personnel action for which
the CSRA does not provide him a right of review.
II
We have recognized that the CSRA "comprehensively overhauled the
civil service system,"
Lindahl v. OPM, 470 U.
S. 768,
470 U. S. 773
(1985), creating an elaborate "new framework for evaluating adverse
personnel actions against [federal employees],"
id. at
470 U. S. 774.
It prescribes in great detail the protections and remedies
applicable to such action, including the availability of
administrative and judicial review. No provision of the CSRA gives
nonpreference members of the excepted service the right to
administrative or judicial review of suspension for misconduct. The
question we face is whether that withholding of remedy was meant to
preclude judicial review for those employees, or rather merely to
leave
Page 484 U. S. 444
them free to pursue the remedies that had been available before
enactment of the CSRA. The answer is to be found by examining the
purpose of the CSRA, the entirety of its text, and the structure of
review that it establishes.
See Lindahl, supra, at
470 U. S. 779;
Block v. Community Nutrition Institute, 467 U.
S. 340,
467 U. S. 345
(1984).
A leading purpose of the CSRA was to replace the haphazard
arrangements for administrative and judicial review of personnel
action, part of the "outdated patchwork of statutes and rules built
up over almost a century" that was the civil service system, S.Rep.
No. 95-969, p. 3 (1978). Under that preexisting system, only
veterans enjoyed a statutory right to appeal adverse personnel
action to the Civil Service Commission (CSC), the predecessor of
the MSPB. 5 U.S.C. § 7701 (1976 ed.). Other employees were afforded
this type of administrative review by Executive Order. Exec.Order
No. 11491, § 22, 3 CFR 874 (1966-1970 Comp.), note following 5
U.S.C. § 7301 (1976 ed.) (extending CSC review to competitive
service employees). Still others, like employees in respondent's
classification, had no right to such review. As for appeal to the
courts: since there was no special statutory review proceeding
relevant to personnel action,
see 5 U.S.C. § 703,
employees sought to appeal the decisions of the CSC, or the agency
decision unreviewed by the CSC, to the district courts through the
various forms of action traditionally used for so-called
nonstatutory review of agency action, including suits for mandamus,
see, e.g., Taylor v. United States Civil Service Comm'n,
374 F.2d 466 (CA9 1967), injunction,
see, e.g., Hargett v.
Summerfield, 100 U.S.App.D.C. 85, 243 F.2d 29 (1957), and
declaratory judgment,
see, e.g., Camero v.
McNamara, 222 F.
Supp. 742 (ED Pa.1963).
See generally R. Vaughn,
Principles of Civil Service Law § 5.4, p. 5-21, and nn. 13-17
(1976) (collecting cases). For certain kinds of
Page 484 U. S. 445
personnel decisions, federal employees could maintain an action
in the Court of Claims of the sort respondent seeks to maintain
here.
See, e.g., Ainsworth v. United States, 185 Ct.Cl.
110, 399 F.2d 176 (1968).
Criticism of this "system" of administrative and judicial review
was widespread. The general perception was that "appeals processes
[were] so lengthy and complicated that managers [in the civil
service] often avoid[ed] taking disciplinary action" against
employees even when it was clearly warranted. S.Rep. No. 95-969, at
9. With respect to judicial review in particular, there was
dissatisfaction with the "wide variations in the kinds of decisions
. . . issued on the same or similar matters,"
id. at 63,
which were the product of concurrent jurisdiction, under various
bases of jurisdiction, of the district courts in all Circuits and
the Court of Claims. Moreover, as the Court of Appeals for the
District of Columbia Circuit repeatedly noted, beginning the
judicial process at the district court level, with repetition of
essentially the same review on appeal in the court of appeals, was
wasteful and irrational.
See Polcover v. Secretary of
Treasury, 155 U.S.App.D.C. 338, 341-342, 477 F.2d 1223,
1226-1228 (1973)
Congress responded to this situation by enacting the CSRA, which
replaced the patchwork system with an integrated scheme of
administrative and judicial review, designed to balance the
legitimate interests of the various categories of federal employees
with the needs of sound and efficient administration.
See
S.Rep. No. 95-969, at 4. Three main sections of the CSRA govern
personnel action taken against members of the civil service. In
each of these sections, Congress deals explicitly with the
situation of nonpreference members of the excepted service,
granting them limited, and in some cases conditional, rights.
Chapter 43 of the CSRA governs personnel actions based on
unacceptable job performance. It applies to both competitive
Page 484 U. S. 446
service employees and members of the excepted service. 5 U.S.C.
§ 4301. It provides that, before an employee can be removed or
reduced in grade for unacceptable job performance, certain
procedural protections must be afforded, including 30 days' advance
written notice of the proposed action, the right to be represented
by an attorney or other representative, a reasonable period of time
in which to respond to the charges, and a written decision
specifying the instances of unacceptable performance. § 4303(b)(1).
Although Congress extended these protections to nonpreference
members of the excepted service, it denied them the right to seek
either administrative or judicial review of the agency's final
action. Chapter 43 gives only competitive service employees and
preference eligible members of the excepted service the right to
appeal the agency's decision to the MSPB and then to the Federal
Circuit. § 4303(e).
Chapter 23 of the CSRA establishes the principles of the merit
system of employment, § 2301, and forbids an agency to engage in
certain "prohibited personnel practices," including unlawful
discrimination, coercion of political activity, nepotism, and
reprisal against so-called whistleblowers. § 2302. Nonpreference
excepted service employees who are not in positions of a
confidential or policymaking nature are protected by this chapter,
§ 2302(a)(2)(B), and are given the right to file charges of
"prohibited personnel practices" with the Office of Special Counsel
of the MSPB, whose responsibility it is to investigate the charges
and, where appropriate, to seek remedial action from the agency and
the MSPB. § 1206.
Chapter 75 of the Act governs adverse action taken against
employees for the "efficiency of the service," which includes
action of the type taken here, based on misconduct. Subchapter I
governs minor adverse action (suspension for 14 days or less), §§
7501-7504, and Subchapter II governs major
Page 484 U. S. 447
adverse action (removal, suspension for more than 14 days,
reduction in grade or pay, or furlough for 30 days or less), §§
7511-7514. In each subchapter, covered employees are given
procedural protections similar to those contained in Chapter 43, §§
7503(b), 7513(b), and in Subchapter II covered employees are
accorded administrative review by the MSPB, followed by judicial
review in the Federal Circuit. §§ 7513(d), 7703. The definition of
"employee[s]" covered by Subchapter II (major adverse action)
specifically includes preference eligibles in the excepted service,
§ 7511(a)(1)(B), but does not include other members of the excepted
service. The Office of Personnel Management is, however, given
authority to extend coverage of Subchapter II to positions in the
excepted service that have that status because they have been
excluded from the competitive service by OPM regulation. §
7511(c).
The Court of Appeals viewed the exclusion of nonpreference
members of the excepted service from the definitional sections of
Chapter 75 as congressional silence on the issue of what review
these employees should receive for the categories of personnel
action covered by that chapter, including a suspension of the
duration at issue here, which would come within Subchapter II. The
court therefore found respondent free to pursue whatever judicial
remedies he would have had before enactment of the CSRA. We view
the exclusion quite differently. In the context of the entire
statutory scheme, we think it displays a clear congressional intent
to deny the excluded employees the protections of Chapter 75 --
including judicial review -- for personnel action covered by that
chapter.
In
Block v. Community Nutrition Institute, 467 U.S. at
467 U. S.
345-348, we observed that, under the Agricultural
Marketing Agreement Act of 1937, the omission of review procedures
for consumers affected by milk market orders, coupled with
Page 484 U. S. 448
the provision of such procedures for milk handlers so affected,
was strong evidence that Congress intended to preclude consumers
from obtaining judicial review. Similarly, in
United States v.
Erika, Inc., 456 U.S.
201 (1982), we found that, in the context of the "precisely
drawn provisions" of the Medicare statute, the provision of
judicial review for awards made under Part A of the statute,
coupled with the omission of judicial review for awards under Part
B, "provides persuasive evidence that Congress deliberately
intended to foreclose further review of such claims."
Id.
at
456 U. S. 208
(citations omitted). The same type of analysis applies here. The
comprehensive nature of the CSRA, the attention that it gives
throughout to the rights of nonpreference excepted service
employees, and the fact that it does not include them in provisions
for administrative and judicial review contained in Chapter 75,
combine to establish a congressional judgment that those employees
should not be able to demand judicial review for the type of
personnel action covered by that chapter. Their exclusion from the
scope of those protections can hardly be explained on the theory
that Congress simply did not have them in mind, since, as noted
earlier, Congress specifically included in Chapter 75
preference eligible excepted service employees, §
7511(a)(1)(B), and specifically provided for optional inclusion (at
the election of OPM) of
certain nonpreference excepted
service employees with respect to
certain protections of
the chapter, including MSPB and judicial review, § 751 1(c).
(Respondent, incidentally, falls within the category eligible for
that optional inclusion,
see ibid.; 5 CFR § 213.3102(hh)
(1978), which OPM has chosen not to invoke.) It seems to us evident
that the absence of provision for these employees to obtain
judicial review is not an uninformative consequence of the limited
scope of the statute, but rather manifestation of a considered
congressional judgment that they should not have statutory
Page 484 U. S. 449
entitlement to review for adverse action of the type governed by
Chapter 75.
This conclusion emerges not only from the statutory language,
but also from what we have elsewhere found to be an indicator of
nonreviewability, the structure of the statutory scheme.
Block
v. Community Nutrition Institute, supra, at
467 U. S. 345;
see Southern R. Co. v. Seaboard Allied Milling Corp.,
442 U. S. 444,
442 U. S.
456-459 (1979). Two structural elements important for
present purposes are clear in the framework of the CSRA: first, the
preferred position of certain categories of employees --
competitive service employees and "preference eligibles"
(veterans).
See 5 U.S.C. §§ 4303(e), 7501(1), 7503,
7511(a)(1), 7513. This is, of course, not an innovation of the
CSRA, but continuation of a traditional feature of the civil
service system.
See Veterans Preference Act of 1944, ch.
287, § 14, 58 Stat. 390; Exec.Order No. 10988, § 14, 3 CFR 527
(1959-1963 Comp.). The second structural element is the primacy of
the MSPB for administrative resolution of disputes over adverse
personnel action, 5 U.S.C. §§ 1205, 4303(e), 7513(d), 7701 (1982
ed. and Supp. IV), and the primacy of the United States Court of
Appeals for the Federal Circuit for judicial review, § 7703. This
enables the development, through the MSPB, of a unitary and
consistent Executive Branch position on matters involving personnel
action, avoids an "unnecessary layer of judicial review" in lower
federal courts, and "[e]ncourages more consistent judicial
decisions. . . ." S.Rep. No. 95-969, at 52;
see Lindahl v.
OPM, 470 U.S. at
470 U. S.
797-798.
Interpreting the exclusion of nonpreference excepted service
personnel from Chapter 75 as leaving them free to pursue other
avenues of review would turn the first structural element upside
down, and would seriously undermine the second. As to the former:
under respondent's view, he would be able to obtain judicial review
of a 10-day suspension for
Page 484 U. S. 450
misconduct, even though a competitive service employee would
not, since Chapter 75 makes MSPB review, and hence judicial review,
generally unavailable for minor adverse personnel action, including
suspensions of less than 14 days. [
Footnote 3] Moreover, this inverted preference shown to
nonpreference excepted service employees would be shown as well to
probationary employees, another disfavored class.
See 5
U.S.C. § 4303(f)(2) (expressly excluding probationary employees
from review under Chapter 43); § 7511(a)(1)(A) (expressly excluding
probationary employees from Chapter 75); S.Rep. No. 95-969, at 45
("It is inappropriate to restrict an agency's authority to separate
an employee who does not perform acceptably during the
[probationary period]"). Since probationary employees, like
nonpreference excepted service employees, are excluded from the
definition of "employee" for purposes of Chapter 75, respondent's
theory that persons so excluded retain their pre-CSRA remedies must
apply to them as well. And as it happens, the very case relied upon
by the Federal Circuit as demonstrating the pre-CSRA right to Court
of Claims review involved a probationary employee.
See Greenway
v. United States, 163 Ct.Cl. 72 (1963). [
Footnote 4]
Page 484 U. S. 451
The manner in which respondent's interpretation would undermine
the second structural element of the Act is obvious. First, for
random categories of employees, legally enforceable employment
entitlements will exist that are not subject to the unifying
authority, in consistency of factfinding as well as interpretation
of law, of the MSPB. Second, for these same employees, the second
layer of judicial review, which Congress meant to eliminate, would
persist,
see Lindahl, supra, at
470 U. S.
797-798, since pre-CSRA causes of action had to be
commenced in the federal courts of first instance, rather than in
the courts of appeals. Finally, for certain kinds of actions, these
employees would be able to obtain review in the district courts and
the regional courts of appeals throughout the country, undermining
the consistency of interpretation by the Federal Circuit envisioned
by § 7703 of the Act. Although a Tucker Act suit is appealable only
to the Federal Circuit, regardless of whether it is brought in the
Claims Court or in district court,
see 28 U.S.C. §§
1295(a)(2), 1295(a)(3), 1346(a)(2), actions brought under the other
statutes used to obtain judicial review before the CSRA,
see
supra, at
484 U. S. 445,
would be appealable to the various regional Circuits. When, as
would often be the case, particular agency action could be
challenged under either the Tucker Act or one of the other bases of
jurisdiction, an agency office would not know whether to follow the
law of its geographical Circuit or the conflicting law of the
Federal Circuit. This, and the other consequences of respondent's
theory that the pre-CSRA remedies of nonpreference excepted service
employees were not meant to be affected by the Act, are inherently
implausible. [
Footnote 5]
Page 484 U. S. 452
Amicus contends that interpreting the CSRA to foreclose
review in this case is contrary to two well-established principles
of statutory construction. The first is that Congress will be
presumed to have intended judicial review of agency action to be
available unless there is "persuasive reason" to believe otherwise.
Abbott Laboratories v. Gardner, 387 U.
S. 136,
387 U. S. 140
(1967). We agree with the principle, but find ample basis for
applying the exception it contains. As we have made clear
elsewhere, the presumption favoring judicial review is not to be
applied in the "strict evidentiary sense," but may be "overcom[e]
whenever the congressional intent to preclude review is
fairly
discernible in the statutory scheme.'" Block v. Community
Nutrition Institute, 467 U.S. at 467 U. S. 351
(quoting Data Processing Service v. Camp, 397 U.
S. 150, 397 U. S. 157
(1970)). Here, as in Block, we think Congress' intention
is fairly discernible, and that "the presumption favoring judicial
review . . . [has been] overcome by inferences of intent drawn from
the statutory scheme as a whole." 467 U.S. at 467 U. S.
349.
The other principle of statutory construction to which
amicus appeals is the doctrine that repeals by implication
are strongly disfavored,
Rodriguez v. United
States, 480 U.S.
Page 484 U. S. 453
522, 524 (1987);
Regional Rail Reorganization Act
Cases, 419 U. S. 102,
419 U. S. 133
(1974), so that a later statute will not be held to have implicitly
repealed an earlier one unless there is a clear repugnancy between
the two,
Georgia v. Pennsylvania R. Co., 324 U.
S. 439,
324 U. S.
456-457 (1945);
Wood v. United
States, 16 Pet. 342,
41 U. S.
362-363 (1842). This means,
amicus asserts,
that, absent an express statement to the contrary, the CSRA cannot
be interpreted to deprive respondent of the the statutory remedy he
possessed under the Back Pay Act.
Once again we agree with the principle, but do not find it
applicable here. Repeal by implication of an express statutory text
is one thing; it can be strongly presumed that Congress will
specifically address language on the statute books that it wishes
to change.
See, e.g., Morton v. Mancari, 417 U.
S. 535 (1971) (Equal Employment Opportunity Act of 1972,
86 Stat. 103 42 U.S.C. § 2000e
et seq. (1970 ed., Supp.
1I), did not negate employment preference for Indians expressly
established by the Indian Reorganization Act of 1934, 48 Stat. 984,
25 U.S.C. § 461
et seq.). But repeal by implication of a
legal disposition implied by a statutory text is something else.
The courts frequently find Congress to have done this -- whenever,
in fact, they interpret a statutory text in the light of
surrounding texts that happen to have been subsequently enacted.
This classic judicial task of reconciling many laws enacted over
time, and getting them to "make sense" in combination, necessarily
assumes that the implications of a statute may be altered by the
implications of a later statute. And that is what we have here. By
reason of the interpretation we adopt today, the Back Pay Act does
not stand repealed, but remains an operative part of the integrated
statutory scheme set up by Congress to protect civil servants. All
that we find to have been "repealed" by the CSRA is the judicial
interpretation of the Back Pay Act -- or, if you will, the Back Pay
Act's implication -- allowing review in the Court of Claims of the
underlying personnel decision giving rise to the claim for
backpay.
Page 484 U. S. 454
To be more explicit: the Back Pay Act provides in pertinent
part:
"An employee of an agency who, on the basis of a timely appeal
or an administrative determination . . . is found
by
appropriate authority under applicable law, rule, regulation,
or collective bargaining agreement, to have been affected by an
unjustified or unwarranted personnel action . . . [is entitled to
back pay]."
5 U.S.C. § 5596(b)(1) (emphasis added). Before enactment of the
CSRA, regulations promulgated by the Civil Service Commission
provided that a court authorized to correct, or to direct the
correction of, an unjustified personnel action was an "appropriate
authority" within the meaning of the Back Pay Act. 5 CFR §
550.803(c) (1968). And the Court of Claims had held (with some
circularity of reasoning) that it was such a court because it had
jurisdiction to award backpay.
Ainsworth v. United States,
185 Ct.Cl., at 118-119, 399 F.2d at 181. Without disagreeing with
that determination made in the context of the preexisting patchwork
scheme,
see supra at
484 U. S.
444-445, we find that, under the comprehensive and
integrated review scheme of the CSRA, the Claims Court (and any
other court relying on Tucker Act jurisdiction) is not an
"appropriate authority" to review an agency's personnel
determination. This does not mean that the statutory remedy
provided in the Back Pay Act is eliminated, or even that the
conditions for invoking it are in any way altered. Now, as
previously, if an employee is found by an "appropriate authority"
to have undergone an unwarranted personnel action a suit for
backpay will lie. Post-CSRA, such an authority would include the
agency itself, or the MSPB or the Federal Circuit where those
entities have the authority to review the agency's determination.
It seems to us that what respondent would have us invoke is a rule
akin to the doctrine that statutes in derogation of the common law
will be strictly construed -- that is, a presumption against any
change, rather than a presumption against
Page 484 U. S. 455
implicit repeal of a statute. We decline to embrace that
principle.
The CSRA established a comprehensive system for reviewing
personnel action taken against federal employees. Its deliberate
exclusion of employees in respondent's service category from the
provisions establishing administrative and judicial review for
personnel action of the sort at issue here prevents respondent from
seeking review in the Claims Court under the Back Pay Act.
Accordingly, the judgment of the Court of Appeals is
Reversed.
[
Footnote 1]
The CSRA divides civil service employees into three main
classifications that can be generally described as follows: "Senior
Executive Service" employees are those who occupy high-level
positions in the Executive Department, but for whom appointment by
the President and confirmation by the Senate is not required. 5
U.S.C. § 3132(a)(2). "Competitive service" employees are all other
employees for whom nomination by the President and confirmation by
the Senate is not required, and who are not specifically excepted
from the competitive service by statute or by statutorily
authorized regulation. § 2102. "Excepted service" personnel are the
remainder -- those who are in neither the competitive service nor
the Senior Executive Service. § 2103. Respondent's position was in
the excepted service because it had been excluded from the
competitive service by authorized Civil Service Commission (now
Office of Personnel Management) regulation. 5 CFR § 213.3102(hh)
(1978).
Within each of the three classifications of employment, the Act
accords preferential treatment to certain veterans and their close
relatives -- so-called "preference eligibles." § 2108. Respondent,
who is not a preference eligible, is referred to as a nonpreference
member of the excepted service.
[
Footnote 2]
Both parties have characterized the grievance rights included in
the Department of the Interior Federal Personnel Manual as agency
regulations. For purposes of this case we assume, without deciding,
that they are such.
[
Footnote 3]
This assumes, of course, that competitive service employees, who
are given review rights by Chapter 75, cannot expand these rights
by resort to pre-CSRA remedies.
Cf. Pinar v. Dole, 747
F.2d 899, 910-912 (CA4 1984),
cert. denied, 471 U.S. 1016
(1985);
Carducci v. Regan, 230 U.S.App.D.C. 80, 82-84, 714
F.2d 171, 173-175 (1983). Even respondent has not questioned this
assumption.
[
Footnote 4]
The dissent makes no attempt to explain these anomalies, except
to assert that we have "create[d] from thin air the notion" that
the CSRA affords preferred status to competitive service and
preference eligible employees.
See post at
484 U. S. 466.
Aside from the obvious linguistic response to this assertion --
that the CSRA explicitly draws distinctions between "preference"
and nonpreference members of the excepted service, 5 U.S.C. §
7511(a)(1)(B) -- we think it sufficient to reiterate that this
preferred status is a traditional feature of the civil service
system.
See supra, at
484 U. S. 449.
This in no way means, of course, that Congress has judged
nonpreference excepted service employees to be "less worthy than
other federal employees,"
post at
484 U. S. 466,
but only that it has chosen to give them less employment
protection.
[
Footnote 5]
The dissent seeks to minimize the impact of respondent's
interpretation by observing that the remedy he seeks will be
"limited to those instances when the agency violates its own
regulations."
Ibid. This sounds like a substantial
limitation, but is in reality an insignificant one. The Department
of the Interior grievance system that is the subject of this suit
not only provides to nonpreference excepted service employees in
respondent's position the right to be advised of grievance
procedures (which is the precise matter at issue here), but also
provides that the grievance will be successful unless
"management . . . establish[es] the facts it asserts by a
preponderance of evidence demonstrating that its action was for
such cause as would promote the efficiency of the service."
Department of the Interior Federal Personnel Manual -- 231, pt.
370 DM, ch. 771, subch. 3, app. A-1(H) (May 4, 1981). Therefore,
under respondent's analysis, a nonpreference excepted service
employee in his position would be able to appeal to the courts, as
a violation of agency regulations, the alleged insufficiency of the
evidence to prove the acts for which he was dismissed, and the
alleged failure of those acts to establish that his dismissal would
promote the efficiency of the service. That would hardly be a
narrow supplement to the otherwise integrated system of review
established by the CSRA.
JUSTICE BLACKMUN, concurring.
I join the Court's opinion because of the persuasive evidence it
marshals for the proposition that Congress intended the CSRA to
"replac[e] the patchwork system with an integrated scheme of
administrative and judicial review, designed to balance the
legitimate interests of the various categories of federal employees
with the needs of sound and efficient administration."
Ante at
484 U. S. 445.
I do not believe, nor do I read the majority opinion to suggest,
that our well-established aversion to recognizing "implied" repeals
of remedial provisions or of judicial review is any weaker when
what is "repealed" finds its source in our cases, rather than in
specific statutory texts. For example, this Court long has
recognized that the Constitution itself supports a private damages
action against a federal official,
Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U. S. 388
(1971), and that the courts' common law power to vindicate
constitutional rights,
see Davis v. Passman, 442 U.
S. 228 (1979);
Carlson v. Green, 446 U. S.
14 (1980), is not lightly to be set aside.
JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL
join, dissenting.
Respondent claims that his 30-day suspension was imposed in
violation of the procedural regulations of his employing agency,
and that he is therefore entitled to backpay for that
Page 484 U. S. 456
period. It is undisputed that, if his claim had arisen prior to
the passage of the Civil Service Reform Act of 1978 (CSRA), and if
he had proved his allegations, he could have recovered his backpay
in the Court of Claims. It is also undisputed that there is not a
single word in either the text or the legislative history of the
CSRA that purports to withdraw or curtail any judicial remedy that
was previously available to employees like respondent, who do not
enjoy the protections accorded to members of the competitive
service or those accorded to veterans and their close relatives. It
is therefore quite wrong for this Court to supplement that
carefully crafted piece of legislation with an unnecessary and
unenacted repealer.
To explain my profound disagreement with the Court's nontextual
reading of the Act, I shall first comment on the state of the law
prior to the enactment of the CSRA, and then explain how that
statute -- whose primary focus is upon employees who are either in
the competitive service or are veterans -- gave certain new
protections to nonpreference eligible members of the excepted
service without withdrawing any of their preexisting rights.
Finally, I shall comment on certain flaws in the reasoning of the
majority.
I
In important respects respondent's case is similar to
Vitarelli v. Seaton, 359 U. S. 535
(1959). In that case, as in this, the Department of the Interior
discharged a nontenured employee without following the procedures
dictated by the Department's own regulations. In both cases, it
must be assumed that the employing agency had sufficient grounds
for its action, because an employee in the excepted service is
subject to discharge without cause. As the Court noted in
Vitarelli, petitioner was a person
"who concededly was at no time within the protection of the
Civil Service Act, Veterans' Preference Act, or any other statute
relating to employment rights of government employees, and who, as
a 'schedule
Page 484 U. S. 457
A' employee, could have been summarily discharged by the
Secretary at any time without the giving of a reason."
Id. at
359 U. S. 539.
Nevertheless, having
"chosen to proceed against petitioner on security grounds, the
Secretary . . . was bound by the regulations which he himself had
promulgated for dealing with such cases, even though, without such
regulations, he could have discharged petitioner summarily."
Id. at
359 U. S.
539-540.
In cases following
Vitarelli, prior to the passage of
the CSRA, it was held that a nonpreference eligible excepted
service employee could seek a remedy under the Tucker Act and the
Back Pay Act in the former Court of Claims [
Footnote 2/1] if he or she was discharged in violation
of applicable agency regulations. [
Footnote 2/2]
See Batchelor v. United States,
169 Ct.Cl. 180, 184,
Page 484 U. S. 458
cert. denied, 382 U.S. 870 (1965);
Greenway v.
United States, 163 Ct.Cl. 72, 76 (1963);
cf. Watson v.
United States, 142 Ct.Cl. 749, 162 F. Supp. 755 (1958). In
those cases, as in this, there was no judicial review of the merits
of the executive decision to remove or suspend the excepted service
employee. Such employees did not have, and do not now have, any
generalized right to review of the merits of their removal. Tucker
Act jurisdiction was limited to those instances in which the agency
had violated its own regulations.
In contrast to the limited remedy available to employees like
Vitarelli and respondent, employees protected by the Civil Service
Act and the Veterans' Preference Act had a variety of
administrative and judicial remedies that included a right to
review of the merits of adverse personnel actions. [
Footnote 2/3] Indeed, a concern that those
employees had too much protection, as well as dissatisfaction with
the fact that the Civil Service Commission had both management and
adjudicatory responsibilities, were among the factors that led to
the enactment of CSRA. As the Court recognizes, the
"general perception was that 'appeals processes [were] so
lengthy and complicated that managers [in the civil service] often
avoid[ed] taking disciplinary action' against employees even when
it was clearly warranted. S.Rep. No. 95-969, at 9."
Ante at
484 U. S. 445.
[
Footnote 2/4] It is of critical
importance to note that the
Page 484 U. S. 459
appeals processes in the Civil Service Commission were not
available to nonpreference eligible employees in the excepted
service. Their limited right to judicial review of the question
whether their employing agency had followed its own procedural
regulations was not part of the problem that Congress solved by
allocating the management functions of the Civil Service Commission
(CSC) to the Office of Personnel Management (OPM) and its
adjudicatory functions to the Merit Systems Protection Board
(MSPB).
II
When read against its background, the text of the CSRA is
readily understood as meaning exactly what it says, and no more.
Generally, the CSRA merely enacted provisions necessary to achieve
the reallocation of CSC functions and codified the protections
previously enjoyed by competitive service employees only by virtue
of an Executive Order.
See 484
U.S. 439fn2/3|>n. 3,
supra. It addresses
nonpreference eligible excepted service employees only limitedly,
and then only to expand, not to contract, the remedies available to
them. Chapter 23 of the Act extends limited protection against
prohibited practices (such as retaliatory discharges and
discrimination) to nonpreference eligibles in the excepted service,
and Chapter 43 extends them certain procedural rights in connection
with adverse personnel actions based on poor job performance. In
both of these areas, the CSRA grants nonpreference eligible members
of the excepted service benefits that they had not previously
enjoyed.
Chapters 75 and 77 describe the administrative and judicial
procedures that are available to veterans and competitive service
employees who are removed for "cause." Since nonpreference eligible
members of the excepted service have no job tenure, and may be
removed without cause, it is perfectly obvious why Congress did not
include them within the
Page 484 U. S. 460
coverage of these chapters. It did, however, give the OPM the
authority to extend the coverage of Chapter 75 to certain employees
in the excepted service.
See 5 U.S.C. § 7511(c). Again,
however, this is a provision which, if exercised, would provide new
protections for nonpreference eligible excepted service
personnel.
Not a word in the CSRA suggests that Congress intended to repeal
the limited preexisting judicial remedy for nonpreference eligible
excepted service employees. [
Footnote
2/5] The fact that Congress expressly added to the protections
for this class of employees, in light of Congress' presumed
familiarity with the established remedy that was already available
to them, [
Footnote 2/6] strongly
supports the conclusion that Congress did not intend to repeal that
remedy.
See Merrill Lynch, Pierce, Fenner & Smith, Inc. v.
Curran, 456 U. S. 353,
456 U. S.
381-382 (1982). This conclusion is reinforced by the
fact that Congress was careful to amend a number of earlier
statutes to conform
Page 484 U. S. 461
them with the CSRA, [
Footnote
2/7] but did not amend the Back Pay Act or the Tucker Act to
limit the nature or scope of relief available under their
provisions. [
Footnote 2/8]
Given the comprehensive nature of the CSRA, it is highly
improbable that Congress intended to make any significant changes
in the law that are not plainly discernible from the language of
the statute. This realistic appraisal of the actual intent of the
lawmakers who drafted and enacted the CSRA is given added support
by the strong presumption favoring judicial review of
administrative action.
See Bowen v. Michigan Academy of Family
Physicians, 476 U. S. 667,
476 U. S.
670-673 (1986).
III
In my opinion the majority is not faithful to the rule against
lightly implying an intent to repeal a previously existing
statutory remedy, [
Footnote 2/9] or
to the presumption that agency actions are
Page 484 U. S. 462
subject to judicial review. The majority finds within the CSRA a
statute that generally broadens the rights of federal employees, an
intention to eliminate judicial review of the
Page 484 U. S. 463
procedural regularity of agency actions that may affect
thousands of federal workers. [
Footnote 2/10] To support this remarkable conclusion,
the majority places primary reliance on our decisions in
Block
v. Community Nutrition Institute, 467 U.
S. 340,
467 U. S.
345-348 (1984), and
United States v. Erika,
Inc., 456 U. S. 201
(1982). But this reliance extends these cases beyond their intended
scope, and gives them weight they cannot bear. As the Federal
Circuit noted in its decision:
"In both
Community Nutrition and
Erika, there
was no jurisdiction because the very statute asserted to provide
the substantive right relied on was instead interpreted to prohibit
judicial review of its own provisions. The Court did not hold in
either case that the relevant statute had repealed a substantive
right granted in a different
Page 484 U. S. 464
statute. It is essential to a proper understanding of this case
to recognize that the issue is not whether the CSRA
authorizes judicial review for persons in the excepted
service. The issue is not whether persons in the excepted service
are entitled to the protection afforded other federal workers by
the CSRA. The issue is not whether the CSRA grants persons in the
excepted service some kind of private right of action. Fausto makes
no claim of entitlement under the CSRA, and we do not resolve that
issue in this case. The issue in this case is whether one act of
Congress, the CSRA, has silently repealed other acts of Congress,
the Tucker Act and the Back Pay Act. The government asserts that it
has. But its arguments, though appearing persuasive, are
superficial, and fail to directly address the issue. The thrust of
its arguments, of its authority in the Supreme Court and in this
circuit and in the other circuits, is that persons in the excepted
service have no cause of action under the provisions of the CSRA,
and in that sense the CSRA does not authorize suit; that is to say,
the government explains, the CSRA 'precludes' judicial review, and
therefore, the government concludes, the CSRA bars judicial review
under any basis in any forum."
"Again, that is
not the situation here. Whether the
CSRA provides a basis for a cause of action for, or whether the
CSRA instead precludes judicial review of, issues which the CSRA
does cover, is not at all the issue here. Neither
Community
Nutrition nor
Erika supports the proposition that
omission of any mention of an issue in one statute operates to
repeal the grant of judicial review of that issue contained in a
different statute."
791 F.2d 1554, 1557-1558 (1986). [
Footnote 2/11]
Page 484 U. S. 465
The majority also draws assurance as to Congress' intent from
the "structure of the statutory scheme," but this likewise lends no
support to the majority's conclusions. Not surprisingly, the CSRA
generally provides for review of an adverse personnel action by the
Merit Systems Protection Board only when such review is necessary
to protect the system of hiring and promoting federal employees on
the basis of merit. [
Footnote
2/12] By definition,
see ante at
484 U. S. 441,
n. 1, employees in the excepted service are not part of the system
of merit-based hirings and promotions. [
Footnote 2/13] Thus, their general exclusion from the
protection of the MSPB is quite understandable.
Page 484 U. S. 466
Since the availability of judicial review under the Act is tied
to initial review by the MSPB, 5 U.S.C. § 7703(a)(1), the CSRA does
not provide any means by which a nonpreference eligible excepted
service employee may seek judicial review. Thus, the failure to
provide an avenue of judicial review for nonpreference eligible
excepted service employees within the CSRA is not a
preclusion of such review in all contexts; rather, it is
merely the consequence of the fact that actions against persons who
are not in the competitive service do not pose a threat to the
merit protection system. The converse is also true; permitting
nonpreference eligible excepted service employees to seek review of
adverse agency decisions under the Tucker Act poses no harm to the
merit protection system.
The majority argues that allowing nonpreference eligible
excepted service employees to obtain judicial review under the
Tucker Act would turn "upside down" and "seriously undermine"
structural elements of the CSRA.
Ante at
484 U. S. 449.
The majority creates from thin air the notion that the CSRA was
designed to create a primacy of competitive service employees and
preference eligible excepted service employees over nonpreference
eligible excepted service employees. As explained above,
nonpreference eligible excepted service employees receive limited
treatment in the CSRA not because Congress saw them as less worthy
than other federal employees, but because actions affecting them
could have little effect on the merit protection system the CSRA
was designed to protect. The majority simply overlooks the narrow
scope of the remedy available under the Tucker Act. It bears
repeating that nonpreference eligible excepted service employees do
not have, and have never had, a generalized right to challenge
their removals under the Tucker Act.
Batchelor v. United
States, 169 Ct.Cl. at 183;
Greenway v. United States,
163 Ct.Cl. at 75. Tucker Act jurisdiction was and remains limited
to those instances when the agency violates its own regulations in
discharging an employee. Making a
Page 484 U. S. 467
remedy this narrowly drawn available to employees not covered by
the MSPB poses no threat to the structural integrity of the
MSPB.
The majority claims that permitting nonpreference eligibles to
pursue this remedy would give such employees an advantage over
preference eligibles and competitive service employees. Quite the
contrary. To proceed under the Tucker Act, a nonpreference eligible
excepted service employee must be prepared to develop the facts
relevant to his or her claim at a formal trial. An employee who is
entitled to seek relief before the MSPB will have the opportunity
to proceed in a far less formal atmosphere, without paying filing
fees and other costs. Because the proceedings are less formal, the
employee may be able to present his or her case competently without
the assistance of an attorney. Also, the CSRA requires that review
by the MSPB be provided expeditiously, 5 U.S.C. § 7701(i)(1); an
employee entitled to proceed before the Board may therefore
anticipate obtaining relief in a much shorter period of time than
an employee who must file a complaint with the Claims Court. The
difference in the burdens of proof in the two schemes also favors
the employee with a right to seek MSPB review. An employee who
brings a Tucker Act claim must prove by a preponderance of the
evidence that the agency violated its own regulations. In
proceedings before the MSPB, however, the agency has the burden of
proving that its actions are supported by a preponderance of the
evidence, 5 U.S.C. § 7701(c)(1)(B), and in some instances by
substantial evidence, § 7701(c)(1)(A). Most importantly, an
employee entitled to seek relief before the MSPB may obtain
judicial review of the merits of an adverse personnel action, while
a nonpreference eligible excepted service employee proceeding under
the Tucker Act is entitled to judicial review only of whether the
agency violated its own regulations. Given the advantages that
attend review by the MSPB, it is clear that pursuit of a Tucker Act
claim is not the more favored route.
Page 484 U. S. 468
Contrary to the majority's view, holding that a Tucker Act
remedy survived the enactment of the CSRA would not impair the
congressional goal of "[e]ncourag[ing] more consistent judicial
decisions on review." The majority reads into the desire to
"encourage" uniformity a command to guarantee it. However, the
precatory words Congress chose describe only a desire to encourage
or promote uniformity, nothing more. As originally enacted, § 205
of the CSRA achieved this congressional goal by eliminating review
by United States district courts, not by limiting the number of
courts of appeals that had jurisdiction to review appeals from the
MSPB. [
Footnote 2/14] In 1982,
Congress amended § 205 to limit review of MSPB decisions to the
United States Court of Appeals for the Federal Circuit. 5 U.S.C. §
7703(b)(1). Any goal Congress sought to achieve in making this
change is not frustrated by continuing to recognize jurisdiction
under the Tucker Act, since Tucker Act suits are also appealable
only to the Federal Circuit.
See 484
U.S. 439fn2/11|>n. 11,
supra.
In essence, the majority relies on the bare fact that Congress
provided for review of some adverse personnel actions through the
MSPB to infer a congressional desire to preclude judicial review of
other actions. But congressional silence surely does not provide
the clear and convincing evidence of intent we have previously
demanded before finding that an existing statutory remedy has been
repealed. I respectfully dissent.
[
Footnote 2/1]
The United States Court of Claims was abolished by the Federal
Courts Improvement Act of 1982 (FCIA), Pub.L. 97-164, 96 Stat. 25.
The FCIA created in its stead the United States Claims Court, which
inherited the Court of Claims' authority to exercise general
jurisdiction over Tucker Act claims.
Lindahl v. OPM,
470 U. S. 768,
470 U. S. 796
(1985).
[
Footnote 2/2]
The Tucker Act, 28 U.S.C. § 1491(a)(1), provides in pertinent
part:
"The United States Claims Court shall have jurisdiction to
render judgment upon any claim against the United States founded
either upon the Constitution, or any Act of Congress or any
regulation of an executive department, or upon any express or
implied contract with the United States, or for liquidated or
unliquidated damages in cases not sounding in tort."
The Back Pay Act, 5 U.S.C. § 5596(b), provides in pertinent
part:
"An employee of an agency who, on the basis of a timely appeal
or an administrative determination (including a decision relating
to an unfair labor practice or a grievance) is found by appropriate
authority under applicable law, rule, regulation, or collective
bargaining agreement, to have been affected by an unjustified or
unwarranted personnel action which has resulted in the withdrawal
or reduction of all or part of the pay, allowances, or
differentials of the employee -- "
"(A) is entitled, on correction of the personnel action, to
receive for the period for which the personnel action was in effect
-- [an amount equal to back pay (less any amount earned through
other employment) and reasonable attorney fees]."
As we explained in
United States v. Testan,
424 U. S. 392,
424 U. S. 398
(1976), the Tucker Act created jurisdiction in the Court of Claims
to consider certain claims against the United States whenever a
substantive right existed. The Back Pay Act supplies the
substantive right to recover backpay whenever an employee is
affected by an unjustified or unwarranted personnel action which
leads to the withdrawal or reduction of pay and allowances.
Id. at
424 U. S.
406.
[
Footnote 2/3]
The right of preference eligible employees to appeal to the
Civil Service Commission was granted by statute, 5 U.S.C. § 7701
(1976 ed.), whereas the rights of competitive service employees
were conferred by Executive Order,
see Exec. Order No.
11491, § 22, 3 CFR 874 (1966-1970 Comp.). Neither the statute nor
the Executive Order applied to nonpreference eligible excepted
service employees.
[
Footnote 2/4]
"One of the central tasks of the civil service reform bill is
simple to express, but difficult to achieve: allow civil servants
to be able to be hired and fired more easily, but for the right
reasons."
S.Rep. No. 95-969, p. 4 (1978).
[
Footnote 2/5]
The language used by Congress to grant those employees covered
by Chapter 75 and other chapters of the Act judicial review of
adverse MSPB decisions is instructive. Employees who are governed
by Chapter 75 have an express right to seek administrative review
of adverse personnel decisions before the MSPB. Title 5 U.S.C. §
7703(a)(1) provides that
"[a]ny employee or applicant for employment adversely affected
or aggrieved by a final order or decision of the Merit Systems
Protection Board may obtain judicial review of the order or
decision."
If, as the majority concludes, Congress intended to bar
nonveteran excepted service employees from all judicial review of
any adverse personnel action falling within the scope of Chapter
75, one would reasonably have expected Congress to draft § 7703 to
read
"
only employees or applicants for employment adversely
affected or aggrieved by a final order or decision of the Merit
Systems Protection Board may obtain judicial review of an adverse
personnel action."
Such language would have made it clear that Congress intended to
limit judicial review to those personnel actions falling within the
jurisdiction of the MSPB. However, as actually written, § 7703
merely creates jurisdiction. Nothing in its language or
construction even hints at the withdrawal of jurisdiction created
elsewhere.
[
Footnote 2/6]
See Rodriguez v. United States, 480 U.
S. 522,
480 U. S. 525
(1987) (per curiam) (Congress is presumed to act with full
awareness of existing judicial interpretations).
[
Footnote 2/7]
See Technical and Conforming Amendments, Pub.L. 94-454,
§§ 703 and 906, 92 Stat. 1216 and 1224.
[
Footnote 2/8]
Congress' failure to so amend the Back Pay Act is especially
notable since the Back Pay Act was amended by the CSRA in other
respects. The CSRA amendment to the Back Pay Act ensures that
unfair labor practice and grievance proceedings are considered
administrative proceedings, specifies the particular items
recoverable as backpay by a prevailing employee (pay, allowances,
and differentials plus interest, and attorney's fees and costs),
and provides procedures for restoring annual leave, but does not
purport to limit the class of employees entitled to obtain this
relief.
See H.R.Rep. No. 95-1403, pp. 60-61 (1978);
484
U.S. 439fn2/2|>n. 2,
supra. The amendment contains
no language supporting the majority's conclusion that the words
"appropriate authority" in the Act were implicitly amended by the
CSRA to exclude courts relying on Tucker Act jurisdiction.
[
Footnote 2/9]
See Rodriguez v. United States, 480 U.S. at
480 U. S. 524
(1987) (repeals by implication are not favored, and will not be
found unless an intent to repeal is clear and manifest);
Randall v. Loftsgaarden, 478 U. S. 647,
478 U. S. 661
(1986) ("
"[I]t is . . . a cardinal principle of statutory
construction that repeals by implication are not favored,"'"
quoting Radzanower v. Touche Ross & Co., 426 U.
S. 148, 426 U. S. 154
(1976), in turn quoting United States v. United Continental
Tuna Corp., 425 U. S. 164,
425 U. S. 168
(1976)); Ruckelshaus v. Monsanto Co., 467 U.
S. 986, 467 U. S.
1017-1018 (1984) ("[R]epeals by implication are
disfavored" and "where two statutes are capable of co-existence, it
is the duty of the courts, absent a clearly expressed congressional
intention to the contrary, to regard each as effective").
Monsanto concerned the constitutionality of certain
provisions of the Federal Insecticide, Fungicide, and Rodenticide
Act (FIFRA), 7 U.S.C. § 136
et seq. One of the challenged
provisions provided that a party who submitted data to the
Environmental Protection Agency as part of the process of
registering a product could lose its right to compensation for the
public use of those data if it failed to participate in proceedings
to reach agreement as to the amount of compensation due or to
comply with the terms of such an agreement.
See §
136a(c)(1)(D)(ii). Rejecting an allegation that this provision
evidenced an intent to repeal the Tucker Act remedy that ordinarily
was available for a taking without just compensation, we reiterated
that repeals by implication are not favored and reasserted that,
whenever two statutes were capable of coexistence, it was our duty,
"absent a clearly expressed congressional intention to the
contrary, to regard each as effective."
Monsanto, 467 U.S.
at
467 U. S.
1018. We reached the conclusion that no repeal of Tucker
Act jurisdiction was intended, even though we had to imply a
requirement that remedies under FIFRA be exhausted before Tucker
Act relief was sought to reconcile the two statutes.
Ibid.
The reasoning we applied in
Monsanto applies with even
more force here. The CSRA and the Tucker Act coexist easily.
Allowing nonpreference eligible excepted service employees to
pursue a remedy under the Tucker Act in no way interferes with the
operation of the CSRA. No judicially created exhaustion requirement
or other gap-filling measure is necessary to the harmonious
operation of the two statutes.
See St. Martin Evangelical
Lutheran Church v. South Dakota, 451 U.
S. 772,
451 U. S. 788
(1981) (the only permissible justification for a repeal by
implication is when the earlier and later statutes are
irreconcilable).
There is an unacknowledged danger in the majority's failure to
accord the presumption against implied repeals the weight it has
enjoyed in previous decisions of this Court. The presumption
disfavoring implied repeals has been a part of this Court's
jurisprudence at least since 1842.
See
Wood v. United
States, 16 Pet. 342,
41 U. S.
362-363 (1842) (repeal to be implied only if there is a
"positive repugnancy" between the old law and the new);
Daviess v.
Fairhairn, 3 How. 636,
44 U. S. 648
(1845) ("Virtual repeals are not favoured by courts");
United States v.
Tynen, 11 Wall. 88,
78 U. S. 92
(1871) ("[I]t is a familiar doctrine that repeals by implication
are not favored"). It is a firmly entrenched part of the legal
landscape against which Congress works. We can presume with
certainty that Congress is aware of this longstanding presumption
and that Congress relies on it in drafting legislation.
Necessarily, we must presume that Congress drafted the CSRA in the
context of our assurances that the Act's language would not lightly
be found to repeal existing statutes. Changing the weight to be
accorded this presumption alters the legal landscape. If we
construe a statute in a different legal environment than that in
which Congress operated when it drafted and enacted the statute, we
significantly increase the risk that we will reach an erroneous
interpretation. This danger further enhances the need for us to be
faithful to our duty to read statutes consistently whenever
possible, and to find repeals by implication only when differences
between earlier and later enactments are irreconcilable.
[
Footnote 2/10]
It is remarkable that the majority finds this intention
sufficiently well expressed in congressional silence to overcome a
presumption that can be rebutted only by "clear and convincing
evidence" that Congress intended to deny judicial review.
Abbott Laboratories v. Gardner, 387 U.
S. 136,
387 U. S. 141
(1967). To meet this standard, congressional intent must be fairly
discernible in the statutory scheme.
Block v. Community
Nutrition Institute, 467 U. S. 340,
467 U. S. 351
(1984). Even when "substantial doubt about the congressional intent
exists, the general presumption favoring judicial review of
administrative action is controlling."
Ibid. There simply
does not exist in the legislative history or text of the CSRA clear
and convincing evidence that Congress intended, despite its
silence, to effect a repeal of Tucker Act jurisdiction.
[
Footnote 2/11]
The Federal Circuit concluded on initial review and after
rehearing that, prior to the passage of the CSRA, a nonpreference
eligible employee had a cause of action under the Tucker Act and
the Back Pay Act if he or she was discharged in violation of
applicable agency regulations, and that Congress did not destroy
this cause of action when it enacted the CSRA. 791 F.2d 1554
(1986); 783 F.2d 1020 (1986). Because of the unique character of
the Federal Circuit, its conclusions are entitled to special
deference by this Court.
The United States Court of Appeals for the Federal Circuit was
created by the Federal Courts Improvement Act of 1982, Pub.L.
97-164, § 101, 96 Stat. 25. It is the only Federal Court of Appeals
whose jurisdiction is "defined in terms of subject matter, rather
than geography." S.Rep. No. 97-275, p. 3 (1981). Because its
jurisdiction is confined to a defined range of subjects, the
Federal Circuit brings to the cases before it an unusual expertise
that should not lightly be disregarded.
The Federal Circuit is the only Court of Appeals with
jurisdiction to review cases on appeal from the Merit Systems
Protection Board and the United States Claims Court. In
consequence, all claims by federal employees brought under the CSRA
or the Tucker Act/Back Pay Act will ultimately be subject to review
by the Federal Circuit. The Federal Circuit's exclusive
jurisdiction in this area renders it uniquely qualified to
determine whether the CSRA implicitly works a partial repeal of
Tucker Act/Back Pay Act jurisdiction.
[
Footnote 2/12]
"The Merit Systems Protection Board, along with its Special
Counsel, is made responsible for safeguarding the effective
operation of the merit principles in practice."
S.Rep. No. 95-969, at 6.
[
Footnote 2/13]
Throughout the CSRA, preference eligible excepted service
employees, that is, veterans and some close relatives of veterans,
are given for policy reasons the same protections as members of the
competitive service.
See H. .R. Rep. No. 95-1403, at 8
("[V]eterans' preference laws [are] a benefit which the Government
bestowed and should continue to bestow on its citizens who have
served in the armed services during a period of war or armed
conflict").
[
Footnote 2/14]
Section 205 of the CSRA, Pub.L. 95-454, 92 Stat. 1143,
originally provided:
"Except as provided in paragraph (2) of this subsection, a
petition to review a final order or final decision of the Board
shall be filed in the Court of Claims or a United States court of
appeals as provided in chapters 91 and 158, respectively, of title
28."
Thus, appeals from the MSPB could be heard by the Court of
Claims pursuant to the Tucker Act, 28 U.S.C. § 1491, or by any
court of appeals pursuant to 28 U.S.C. §§ 2342 and 2344. The
original form of § 205 demonstrates that Congress did not intend to
achieve uniformity at the expense of limiting the scope of Tucker
Act jurisdiction.