Opposition Brief — Andersen v. United States

Supreme Court brief1994

Ask Donna

What actually matters in this document.

Text

No. 93-1272

Jn the Supreme Court of the Cinited States

OCTOBER TERM, 1993

RONALD M. ANDERSEN, PETITIONER

Uv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. DAYS, II]

Solicitor General

FRANK W. HUNGER

Assistant Attorney General

MARLEIGH D. DOVER

MATTHEW M. COLLETTE

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether the Civil Service Reform Act precludes

judicial review of a federal employee’s claim that he was

constructively discharged from employment in violation

of his constitutional rights.

TABLE OF CONTENTS

Page

RS Re Nr ]

I a 1

OE EET rae ae ee ae 2

EE ENE SCR ne 7

SEES RUR eo es an RS See ee 13

TABLE OF AUTHORITIES

Cases:

Bowen v. Massachusetts, 487 U.S. 879 DED Xda ttons ibis 12, 13

Braun v. United States, 707 F.2d 922 (6th Cir. 1983) .... 7

Broadway v. Block, 694 F.2d 979 (5th Cir. GR 12

Bush v. Lucas, 462 U.S. 367 (1983) ..........cccccccsccoccoeeeeeee 9, 11

Carducci v. Regan, 714 F.2d 171 (D.C. Cir. 1983) .......... 7, 12

Karahalios vy. National Fed’n of Fed. Employees, 489

ca 7 See SMES RPS ADI pegs ella re 7

Mullenberg v. United States, 857 F.2d 770 (Fed. Cir.

REN SS SSS Ie op eNOS ea a ane 7

Pinar v. Dole, 747 F.2d 899 (4th Cir. 1984), cert. denied,

BoP eh. gE aaa re 7,12

Saul v. United States, 928 F.2d 829 (9th Cir. 1991)....... 12

Schweiker v. Chilicky, 487 U.S. 412 (1988) .................... 8, 11

Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir. 1988) ........ 11

Stephens v. HHS, 901 F.2d 1571 (11th Cir.), cert.

Gee, Gee ars Se eee 7, 12

Towers v. Horner, 791 F.2d 1244 (5th Cir. 1986) ........... 7, 12

United States v. Fausto, 484 U.S. 439 (1988) ........... 2, 3-4, 7, 8,

10, 11, 12

Veit v. Heckler, 746 F.2d 508 (9th Cir. 1984) ................. 12

Weatherford vy. Dole, 763 F.2d 392 (10th Cir. 1985) ........ 7, 12

Constitution, statutes and regulation:

a 6

Administrative Procedure Act, 5 U.S.C. 701 et Re 6, 7

(IIT)

Statutes and regulation—Continued: Page

DD: RPaee ts EE Gaiden nc ch cud dod eeedsuhbdancskbonadabdimeeaianece 12

DB Res IIE - ails ak nccdduusnbsuieaieewssecssenedesmmedmemmsiedees 12

OE TT ia Fe atte WOU bhbnanttns sactensoncceocasihenecorcemestnons 8

Civil Service Due Process Amendments, Pub. L. No. 101-

376, 104 Stat. 461:

ns SE iain as crccdnesineslinsi andebaiiasiaiide 4

On I I a ss osdaiphdehsasennbeen 4

ye ee le ME aiid i ai tities oc sies a stasenanesets 4

5 U.S.C. 4303(e)(3) (Supp. IV 1992) .................. 4, 10, 11-12

5 U.S.C. 7511(a)\A)(C)Gi) (Supp. TV 1992) ................. 4

Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92

i: UR Gaiies cpathllinn Linon cidiverinisedcebaestiainanhimitinialeateuiiateusesee 2

Oe ee A et oink dal tie Na he ke 2

a a i eas 2

BB FRESE ee na ree en NPD Pe 4

Oe ae eteaivadsabdendia 5, 10

Be es ee IED “isa cccdesosntcaveveacsdesvniuteenntponneptenes 3, 10

oa ssannbausaeneceneunens 2

a a ouanvesindebaenseebe 3

ERI SS aaey eRe ONY Gee TEL Re oe OP nen 9]

5 U.S.C. 2302(b)(8) (Supp. IV 1992) ......ccceceeeeeeeeees 10

Me TR 1 ATE et nae Pe a ee eee 2, 8, 9

RF Ra RSS i Cc CP 2

Be eas SEIU dovccizhdsuckebscaedsussbehedaeussdeeckauies } 3

BF ee Ce CCE manne anny ie, eee Sree 3

ae ae hs ce tantias 3

BR eT Ara ee aCe ee eee? Oe 3

BIE 5 Ak} ” ESSIEN easyer nen Sara ner ere eee One 3

ee I i o easecbasdubibae 4

Op rr do ee es ecadullgodeainesadeennes 4 3, 11-12

Whistleblower Protection Act of 1989, P ub. L. No. 101-

> eR PAE a Ee 4

5 U.S.C. 1214(aX(3) (Supp. [IV 1992) ...................eceeees 4

BIR Foe ig RR | eer 11-12

5 U.S.C. IZ2i(a) (amp. FV 19BE) ..cciccccscccseccsccvcccessee. 4

6 U.S.C. IZZ1(h) Gapp. TV 1908) ....crcccccoscccseveesceeseses 4

Whistleblower Protection Act of 1989, Pub. L. No. 101-

A I i cskbibsiealhiniie 10

—- ow

Statutes and Regulation—Continued:

5 U.S.C. 1206

5 U.S.C. 1221 (Supp. IV 1992)

Miscellaneous:

H.}

H.f

> A Fai Aes TOE ahassanitaceveindenchanertrapdnisceonddatidielinsdagained ;

. Conf. Rep. No. 1717, 95th Cong., 2d Sess. (1978)..

tep. No. 1656, 94th Cong., 2d Sess. (1976) ...

5. Rep. No. 969, 95th Cong., 2d Sess. (1978) ..........

Eel

In the Supreme Court of the United States

OCTOBER TERM, 1993

No. 93-1272

RONALD M. ANDERSEN, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1la-

29a) is unpublished, but the decision is noted at 8 F.3d

25 (Table). The opinion of the district court (Pet. App.

30a-68a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

October 5, 1993. The petition for writ of certiorari

was filed on January 3, 1994. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

l. a. The Civil Service Reform Act of 1978 (CSRA),

Pub. L. No. 95-454, 92 Stat. 1111 (codified, as amended,

in various sections of 5 U.S.C.), provides a com-

prehensive scheme of protections and remedies for

federal employees adversely affected by personnel

actions. See United States v. Fausto, 484 U.S. 439,

445-446 (1988). The extent of an employee’s pro-

tections and remedies under the CSRA, however,

depends upon the kind of position he or she holds

within the civil service. In this regard, the CSRA

divides federal employees into three categories: the

Senior Executive Service, the competitive service,

and the excepted service.' Petitioner, a “Schedule A”

employee, was a member of the excepted service. Pet.

App. 4a, 12a n.8; see 5 C.F.R. 213.31 42(d).

Chapter 23 of the CSRA forbids an agency to

engage in certain “prohibited personnei practices.”

See 5 U.S.C. 2302.2, An employee may file an

! Senior Executive Service employees are those who occupy

high-level positions but need not be nominated by the President

or confirmed by the Senate. 5 U.S.C. 2101a, 3132(a)(2). Com-

petitive service employees are all other employees who need

not be so nominated or confirmed, and who are not specifically

exempted from the competitive service by statute or regula-

tion. 5 U.S.C. 2102. The excepted service consists of all civil

service personnel who are in neither the Senior Executive

Service nor the competitive service. 5 U.S.C. 2103. See

Fausto, 484 U.S. at 441 n.1.

2 The CSRA lists a number of such proscribed practices,

including any personnel action that would violate the “merit

system principles” enumerated in the Act. 5 U.S.C.

2302(b)(11). The CSRA in turn identifies merit system princi-

ples to include inter alia the maintenance of “high standards of

integrity, conduct, and concern for the public interest,”

allegation of such a prohibited practice with the

Office of Special Counsel (OSC), “whose responsibil-

ity it is to investigate the charges and, where

appropriate, to seek remedial action from the agency

and the [Merit Systems Protection Board (MSPB)].”

Fausto, 484 U.S. at 446 (citing 5 U.S.C. 1206). The

OSC’s power to request that the MSPB take

corrective action, however, is discretionary and the

CSRA does not provide for judicial review of an OSC

decision not to make such a request.

Chapter 75 of the CSRA allows employees to con-

test certain “adverse actions”—principally removal

or suspension from employment—by petitioning the

MSPB for relief. 5 U.S.C. 7501-7504, 7511-7514. If

necessary, an employee may then seek judicial review

of the MSPB’s decision. 5 U.S.C. 7703.

The CSRA also gives employees—including ex-

cepted service personnel—the option to pursue griev-

ance procedures under a collective bargaining

agreement. See 5 U.S.C. 7103(a)(9)(A). Such griev-

ances may go to arbitration, and exceptions to the

arbitration decision may be filed with the Federal

Labor Relations Authority. See 5 U.S.C. 7121, 7122.

In 1988—the time of the events relevant to this case

—most excepted service employees were entitled to

the protections of Chapter 23, but not Chapter 75.

Chapter 23 applied to all excepted service employees

except those in positions of a confidential or policy-

making nature. 5 U.S.C. 2302(a)(2)(B); see Fausto,

5 U.S.C. 2301(b)(4), and protection “against reprisal for the

lawful disclosure of information which the employees

reasonably believe evidences * * * a violation of any law, rule,

or regulation.” 5 U.S.C. 2301(b)(9)(A).

sheet

484 U.S. at 446. Chapter 75, however, applied only to

those excepted service employees who were consid-

ered “preference eligible,” 5 U.S.C. 7511(a)(1)(B)—

i.e., veterans of military service and their close

relatives. 5 U.S.C. 2108; see Fausto, 484 U.S. at 441

n.1.

b. Subsequent to the personnel action at issue in

this case, Congress twice amended the CSRA. In

1989, Congress passed the Whistleblower Protection

Act, Pub. L. No. 101-12, 103 Stat. 16. This Act allows

employees who qualify as “whistleblowers” to obtain

MSPB review of the OSC’s decision not to take action

and judicial review of the MSPB’s decision. See 5

U.S.C. 1214(a)(3) (Supp. [VY 1992), 1221(a) and (h)

(Supp. IV 1992).

In 1990, Congress amended the CSRA to provide

that excepted service employees who are reduced in

grade or removed for unacceptable performance are

entitled to appeal the action to the MSPB. Civil

Service Due Process Amendments, Pub. L. No. 101-

376, § 2(b), 104 Stat. 462; see 5 U.S.C. 4303(e)(3) (Supp.

[V 1992). In those same amendments, Congress

extended the protections of Chapter 75 to excepted

service employees with two years of continuous

service. 5 U.S.C. 7511(a)(1)(C)(ii) (Supp. TV 1992).

Because these amendments do not apply to personnel

actions taking effect before August 17, 1990, see Pub.

L. No. 101-376, § 2(c), 4, 104 Stat. 462, 463, they do not

apply in this case.

2. Until February, 1988, petitioner was employed

as a trial attorney in the District Office of the Equal

Employment Opportunity Commission (EEOC) in

Phoenix, Arizona. Pet. App. 4a, 3la. From late 1987

to early 1988, petitioner was assigned as lead counsel

in a sexual harassment case in New Mexico. /d. at 4a.

During trial preparation, petitioner learned that one

of the charging parties had allegedly offered $2,000 to

a witness in exchange for false testimony and that

another witness had offered to sell his testimony to

all three charging parties for $10,000. Jd. at 32a-33a.

Petitioner expressed his concern about these reve-

lations to his supervisors. Pet. App. 33a-34a. Ulti-

mately, however, petitioner and his superiors dis-

agreed as to the appropriate response to the situation.

Id. at 4a. Petitioner came to believe that it was his

ethical obligation to withdraw from the case and

inform the court of what he had learned. /d. at 5a. His

supervisors expressly forbade him from doing so, and

told him that any such action would be considered

insubordinate. [bid.

On February 9, 1988, petitioner resigned. Pet. App.

36a-39a. The next day, petitioner traveled to New

Mexico and disclosed his knowledge to the court,

which vacated the trial date. Jd. at 39a-40a. The case

was subsequently settled. Upon his return to

Phoenix, petitioner completed the formal employment

termination process—characterizing his resignation

as a “constructive discharge.” Jd. at 6a.

Shortly thereafter, petitioner sought reinstate-

ment through a number of channels, none of which

proved successful. Pet. App. 6a-7a, 40a. Petitioner

3 Petitioner reported the suspected perjury and bribery to

the U.S. Attorney’s Office, which referred the matter to the

FBI. The FBI, after investigation, declined to file charges.

Petitioner also filed professional responsibility grievances

against his supervisors with the Arizona and Wisconsin Bars,

alleging violations of the Code of Professional Responsibility.

Both Bars dismissed the complaints.

asked his union to file a grievance on his behalf, but

the union declined after determining that petitioner’s

resignation had been voluntary. /d. at 40a-41a.

Petitioner also filed a complaint with the Office of

Special Counsel, alleging that he had been construc-

tively discharged for whistleblowing. /d. at 6a-7a.

After conducting an investigation, the OSC found

insufficient evidence of any prohibited personnel

practice and declined to pursue the matter further. /d.

at 7a.

3. In February, 1989, petitioner filed the instant

action in federal district court alleging that he had

been constructively discharged in violation of the

Constitution. Pet. App. 8a, 4la-42a.4 The district

court dismissed the action on the ground that the

Civil Service Reform Act precluded judicial review of

petitioner’s claims. /d. at 30a-68a.

4. The court of appeals affirmed in an unpublished

memorandum opinion. Pet. App. la-29a. The court

held that the CSRA provides the exclusive remedy for

petitioner to pursue his claims. The court rejected

petitioner’s argument that Congress contemplated an

exception to the exclusivity of the CSRA for matters

relating to the ethical obligations of government

attorneys. /d. at 14a-l6a. The court also rejected

‘ Petitioner alleged that he had a property right in his

continued employment, as well as a liberty interest arising

from his status as an officer of the court, and that the EEOC

violated his right to due process by ~ot giving him a hearing on

his constructive discharge claim. Pev. App. 8a. Petitioner also

asserted a violation of his First Amendment rights, a denial of

due process under the Administrative Procedure Act, 5 U.S.C.

701 et seq., and a pendent state claim for wrongful termination.

Ibid.

petitioner’s contention that relief is available under

the Administrative Procedure Act (APA), 5 U.S.C.

701 et seq., notwithstanding the comprehensive reme-

dial scheme embodied in the CSRA. /d. at 24a-28a.

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or of

any other court of appeals. Moreover, the continuing

significance of the matter is minor in light of recent

amendments to the CSRA. Further review is there-

fore unwarranted.

1. Petitioner seeks to maintain this action in the

face of overwhelming authority from this Court and

the federal appellate courts that the CSRA provides

the sole and exclusive method for adjudicating per-

sonnel matters involving federal employees that are

cognizable under the CSRA. As these courts recog-

nize, the comprehensive nature of the CSRA thus

forecloses federal employees from challenging ad-

verse personnel actions through the judicial review

provisions of more general statutes. See Fausto, 484

U.S. at 445; Karahalios v. National Fed’n of Fed.

Employees, 489 U.S. 527, 536 (1989); Stephens v.

HHS, 901 F.2d 1571, 1575-1576 (11th Cir.), cert. denied,

498 U.S. 998 (1990); Mullenberg v. United States, 857

F.2d 770 (Fed. Cir. 1988); Towers v. Horner, 791 F.2d

1244, 1247 (5th Cir. 1986); Weatherford v. Dole, 763

F.2d 392, 393-394 (10th Cir. 1985); Pinar v. Dole, 747

F.2d 899, 912-913 (4th Cir. 1984), cert. denied, 471 U.S.

1016 (1985); Carducci v. Regan, 714 F.2d 171, 173-175

(D.C. Cir. 1983); Braun v. United States, 707 F 2d 922,

926-927 (6th Cir. 1983).

In Fausto, this Court held that a “nonpreference”

member of the excepted service could not sue an

agency under the Back Pay Act, 5 U.S.C. 5596, to

challenge his dismissal. Noting that the CSRA pro-

vides “an integrated scheme of administrative and

judicial review [that is] designed to balance the legit-

imate interests of the various categories of federal

employees with the needs of sound and efficient

administration,” 484 U.S. at 445, the Court held that

Congress had intended to preclude review under more

general statutes such as the Back Pay Act. The

Court concluded that Congress’s failure to provide for

administrative and judicial review with respect to

certain personnel actions manifested “a considered

congressional judgment” that those actions should

not be judicially reviewable. /d. at 448-449.

The CSRA remains the sole and exclusive remedy

for all claims arising from federal employment,

including constitutional claims. As this Court

explained in Schweiker v. Chilicky, 487 U.S. 412, 423

(1988), it is inappropriate for the judiciary to fashion

additional remedies for alleged constitutional viola-

tions “[w]Jhen the design of a Government program

suggests that Congress has provided what it consid-

ers adequate remedial mechanisms for constitutional

violations that may occur in the course of its

administration.”

The CSRA’s detailed remedial scheme expressly

provides for review of constitutional allegations. The

CSRA defines “prohibited personnel practices” to

include actions that violate “any law, rule or

regulation * * * directly concerning[{] the merit

system principles.” 5 U.S.C. 2302(b)(11). The CSRA’s

legislative history makes clear that any action in

violation of an employee’s constitutional rights vio-

lates these merit system principles and therefore

constitutes a prohibited personnel practice. H.R.

Conf. Rep. No. 1717, 95th Cong., 2d Sess. 131 (1978).

As this Court has recognized, “[clonstitutional chal-

lenges to agency action, such as the First Amend-

ment claims raised by petitioner, are fully cognizable

within this [CSRA] system.” Bush v. Lucas, 462 U.S.

367, 386 (1983).

Accordingly, the CSRA is petitioner’s sole vehicle

for review of his constructive discharge claim. Prior

to the 1989 and 1990 amendments, petitioner had two

avenues of relief: a charge of a “prohibited personnel

practice” with the OSC or a grievance. Neither

petitioner nor his union filed a timely grievance, and

the OSC concluded that petitioner’s resignation had

been voluntary and that no prohibited personne]

practice occurred.

2. Recognizing that the CSRA provides an exclu-

sive remedy for federal personnel actions, petitioner

asks this Court to carve out an exception for matters

involving professional ethics. He argues (Pet. 10-24)

that Congress intended that the CSRA not apply to

employment disputes involving compliance with ethi-

cal obligations.

Petitioner’s contention finds no support in the

language of the statute, which covers a broad range of

personnel actions and also covers substantial classes

of employees bound by professional ethical standards.

The CSRA’s injunction against prohibited personnel

practices encompasses retaliation for “whistle-

blowing” as well as any other action that violates

“merit system principles.” 5 U.S.C. 2302(b)(8) and

(b)(11). Those principles include the maintenance of

“high standards of integrity, conduct, and concern for

the public interest,” 5 U.S.C. 2301(b)(4), and

protection from reprisal “for the lawful disclosure of

information which the employees reasonably believe

evidences * * * a violation of any law, rule, or reg-

ulation.” 5 U.S.C. 2301(b)(9)(A). Petitioner’s claim—

that he was constructively discharged as a result of

his desire to report suspected perjury and bribery—

falls squarely within these provisions.

Petitioner’s contention is further rebutted by the

recent amendments to the CSRA. The 1989 amend-

ments made judicial review available to all whistle-

blowers for claims such as the one involved here. See

5 U.S.C. 1221 (Supp. IV 1992), 2302(b)(8) (Supp. IV

1992). Moreover, the 1990 amendments expanded the

remedies available to excepted service employees—

including attorneys subject to professional ethical

standards. See 5 U.S.C. 4303(e)(3) (Supp. IV 1992); 5

C.F.R. 213.3102. As the court of appeals noted, “[iJn-

stead of exempting such employees and such griev-

ances from the CSRA regime, Congress has pro-

gressively expanded the remedies available for

whistleblowers and those whose jobs are jeopardized

by maintaining ‘high standards of integrity, conduct,

and concern for the public interest.’ 5 U.S.C.

§ 2301(b)(4).” Pet. App. 16a.

Moreover, Congress expressly provided that these

amendments do not apply retroactively to cases such

as this one. See Whistleblower Protection Act, Pub.

L. No. 101-12, § 7(b), 103 Stat. 34. As in Fausto, the

decision not to provide for administrative and judicial

review with respect to petitioner’s claim manifests “a

considered congressional judgment” that may not be

ignored by the judiciary. 484 U.S. at 448-449.

3. Petitioner next argues (Pet. 25-28) that the

court of appeals’ decision here is inconsistent with

the D.C. Circuit’s decision in Spagnola v. Mathis, 859

F.2d 223 (1988) (en banc). This contention is without

merit.

In Spagnola, the D.C. Circuit held that the CSRA’s

comprehensive remedial scheme precludes judicial

review of constitutional claims—even if the CSRA

provides no judicial review at all. See 859 F.2d at 226-

229. In the course of arriving at this decision, the

Spagnola court confirmed that Congress intended to

include constitutional violations within the CSRA’s

comprehensive remedial scheme, and that Congress’s

failure to provide remedies for some adverse actions

was not inadvertent. Jd. at 229 & n.12.

Petitioner relies not upon the holding or the result

in Spagnola, but upon the following dictum at the end

of the opinion: “While we decline to extend Bivens

remedies to Hubbard and Spagnola, we do not suggest

that the CSRA precludes the exercise of federal

jurisdiction over the constitutional claims of federal

employees and job applicants altogether.” 859 F.2d at

229. This unfocused dictum does not create a circuit

conflict that warrants review by this Court. More-

over, even if one viewed Spagnola as creating a

circuit conflict, review would be inappropriate here.

To begin with, this Court’s precedents clearly dispose

of petitioner’s claim. See Fausto, supra; Chilicky,

supra; Bush v. Lucas, supra. Furthermore, the issue

presented here is of minimal continuing significance.

Under the 1989 and 1990 amendments to the CSRA,

federal employees like petitioner may obtain judicial

review of major personnel actions as well as com-

plaints of retaliation for whistleblowing. See 5 U.S.C.

1221 (Supp. IV 1992), 4303(e)(3) (Supp. IV 1992), 7703.

Any federal employee alleging that he or she was

discharged for complying with professional ethical

obligations currently can seek full redress in the

courts.

4. Finally, petitioner argues (Pet. 28-29) that the

Administrative Procedure Act allows judicial review

of his constructive discharge claim. The APA,

however, expressly states that its judicial review

provisions do not apply where the relevant statute

“preclude[s} judicial review,” 5 U.S.C. 701(a)(1), or

where the “agency action is committed to agency

discretion by law.” 5 U.S.C. 701(a)(2). This Court has

held that the comprehensive nature of the CSRA

indicates a clear congressional intent to preclude

judicial review where such review is not provided for

in the CSRA. Fausto, supra.’ The APA therefore

does not provide a basis for judicial review in cases

such as this one.

Petitioner’s reliance (Pet. 29) on Bowen v.

Massachusetts, 487 U.S. 879 (1988), for the proposition

that the CSRA does not preclude an APA remedy, is

misplaced. Bowen involved neither the CSRA nor the

federal civil service. Rather, at issue in Bowen was

whether a federal district court, or the Claims Court,

had jurisdiction to review a final order of the Secre-

tary of Health and Human Services reimbursing a

State for a category of expenditures under its

Medicaid program. See id. at 882. The Court held

5 See also Saul v. United States, 928 F.2d 829 (9th Cir.

1991); Veit v. Heckler, 746 F.2d 508 (9th Cir. 1984); Stephens v.

HHS, supra; Towers v. Horner, supra; Weatherford v. Dole,

supra; Pinar v. Dole, supra; Carducci v. Regan, supra; Broa-

dway v. Block, 694 F.2d 979, 986 (5th Cir. 1982).

that the APA applied to the Secretary’s decision and

therefore that the district court properly exercised

jurisdiction. Jd. at 892-911.

Prior to the passage of the CSRA, the APA may

have been available to challenge certain employment

decisions. See H.R. Rep. No. 1656, 94th Cong., 2d

Sess. 8 (1976). However, the CSRA replaced the

“outdated patchwork of statutes and rules built up

over almost a century.” S. Rep. No. 969, 95th Cong.,

2d. Sess. 3, 53 (1978). As this Court made clear in

Fausto, the CSRA is now the exclusive avenue of

relief available to employees seeking review of, and

redress for, the kind of prohibited personnel practice

alleged in this case.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREw S. DAys, III