United States v. Fausto

484 U.S. 439, 108 S. Ct. 668, 98 L. Ed. 2d 830, 1988 U.S. LEXIS 574

Opinions

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. 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,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 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).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. See 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.

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, 773 (1985), creating an elaborate “new framework for evaluating adverse personnel actions against [federal employees],” id., at 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 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 779; Block v. Community Nutrition Institute, 467 U. S. 340, 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 pre-existing 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 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 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. Sub-chapter I governs minor adverse action (suspension for 14 days or less), §§ 7501-7504, and Subchapter II governs major 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 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 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 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, § 7511(c). (Respondent, incidentally, falls within the category eligible for that optional inclusion, see ibid.; 5 CPR §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 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 345; see Southern R. Co. v. Seaboard Allied Milling Corp., 442 U. S. 444, 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 “[ejncourages more consistent judicial decisions . . . .” S. Rep. No. 95-969, at 52; see Lindahl v. OPM, 470 U. S., at 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 sec - ond. As to the former: Under respondent’s view, he would be able to obtain judicial review of a 10-day suspension for 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.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).⁴

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 fact-finding 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 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 appeal-able 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 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.⁵

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, 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 351 (quoting Data Processing Service v. Camp, 397 U. S. 150, 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 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. (1987); Regional Rail Reorganization Act Cases, 419 U. S. 102, 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, 456-457 (1945); Wood v. United States, 16 Pet. 342, 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 (1974) (Equal Employment Opportunity Act of 1972, 86 Stat. 103, 42 U. S. C. §2000e et seq. (1970 ed., Supp. II), 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.

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 pre-existing patchwork scheme, see supra, at 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. PostCSRA, 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 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.

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.

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.

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.

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 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 449. This in no way means, of course, that Congress has judged nonpreference excepted service employees to be “less worthy than other federal emplyees,” post, at 466, but only that it has chosen to give them less employ-' ment protection.

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. . . establishes] 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-l(H) (May 4, 1981). Therefore, under respondent’s analysis, a non-preference 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.