Opposition Brief — Dew v. United States

Supreme Court, U.S.

FILED

2. FEB 2 8 9nnn

a

No. 99-1089

we Ps eS

In the Supreme Court of the Onited States

JOHN R. DEW, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

DAVID W. OGDEN

Acting Assistant Attorne y

General

MICHAEL JAY SINGER

KATHLEEN MORIARTY MUELLER

Attorneys

Departme nt of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the Uniformed Services Employment and

Reemployment Rights Act of 1994 (USERRA), 38

U.S.C. 4301 et seq., precludes judicial review of

USERRA claims by employees of the Federal Bureau

of Investigation.

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) .................

Block v. Community Nutrition Inst., 467 U.S.

a ceeslicacapbesiunastansbinnebiiok

Bowen v. Michigan Academy of Family Physicians,

I assis hehbidncigndonaaeinins 6,

Johnson v. Robison, 415 U.S. 361 (1974) oe eseeeseeees

Lincoln v. Vigil, 508 U.S. 182 (1993) .............0cccssssseeerceees

McNary v. Haitian Refugee Ctr., Inc., 498 U.S.

| SSS Ea, SRS See ore ee ee ENR

Mead v. Merit Sys. Protection Bd., 687 F.2d 285

I ne acaesbcienennisenenphansiasenios

Morris v. Gressette, 482 U.S. 491 (1977) ..........cecccsssesereeees

Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) ..............

United States v. Erika, Inc., 456 U.S. 201 (1982) ............

United States v. Fausto, 484 U.S. 439 (1988) .............

Webster v. Doe, 486 U.S. 592 (1988) ..........:cssccsesssseesseseerees

Weinberger v. Salfi, 422 U.S. 749 (1975) .....ccccceseeeereereees

Constitution, statutes and regulations:

I II 00st cin nonheaietesanintiedebennnaeibagenesnimcction

Administrative Procedure Act, 5 U.S.C. 551 et seq.:

irises PURDUE D ciseivsssceniseranscenseiesiveceasonsntnommeanissevetonmenseneewese

UIA, Te cecccctesen iireiailieinsiitopiieesinninissurttine

(IIT)

6, 10

7,8

12

13-14

IV

Statutes and regulations—Continued:

Immigration Reform and Control Act of 1986, 8 U.S.C.

1160 et seq.: if

SUB. RAI) A CO) viicncesinsicresenseencnsomisesscntospisinates

8 U.S.C. 1160(e)

Leave With Pay Act, 5 U.S.C. 6328 ...........sccssccesscessereeesees

Uniformed Services Employment and Reemployment

Rights Act of 1994, 38 U.S.C. 4301 et seq. .........::0000

38 U.S.C. 4303(4)

POORER EERE EERE EEE EE EERE TESTE EEE EEEE EEE SEES EE THEE EE EEEEEEEEES

ORR EEE EEE ETE EEEEHEEEEEET EERE EES

38 U.S.C.

38 U.S.C.

38 U.S.C.

38 U.S.C.

38 U.S.C.

38 U.S.C.

4303(5)

4303(6)

4303(14)

4311(a) ....

4315(c)

4315(c)(3)

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38 U.S.C.

38 U.S.C.

4322(a) (1994 & Supp. III 1997)

eeeeeeeeeeee

4322(a)(2)(B) (1994 & Supp. III 1997)...

38 U.S.C.

38 U.S.C.

38 U.S.C.

38 U.S.C.

38 U.S.C.

38 U.S.C.

38 U.S.C.

38 U.S.C.

4322(d) (1994 & Supp. III 1997).............

4323 (1994 & Supp. IIT 1997)...........0.000

4323(a)(2)

4323(b) (1994 & Supp. III 1997) ..vssssee

4324

4324(c)(2) ....

4324(d)

SORE E EEE EEE E EOE HOHE EEEEEEEE EEE EEEEETEEEE EES

4325(a)

38 U.S.C. 4325(b)

5 U.S.C. 2302(a)(2)(c)(ii) (1994 & Supp. IV 1998)

5 U.S.C. 7703(c) .

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seeeeeeeree

10 U.S.C. 10141(a)

10 U.S.C. 10147(a)(1)

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SRO RR EEE O EEE E EEE EEEEEEOEEEEEEEED

10 U.S.C. 10149(a)

10 U.S.C. 12301(a)

32 C.F.R.:

Section 44.3(e)

Section 101.5

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— *

>

Miscellaneous:

140 Cong. Rec. H9136 (daily ed. Sept. 13, 1994)

H.R. Rep. No. 995, 103d Cong., 2d Sess. (1994)

S. Rep. No. 203, 102d Cong., Ist Sess. (1991) ...

OCC R RRO eee eee eee

Jn the Supreme Court of the Anited States

No. 99-1089

JOHN R. DEW, ETAL., PETITIONERS

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-16a)

is reported at 192 F.3d 366. The opinion of the district

court (Pet. App. 17a-31a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

September 28, 1999. The petition for a writ of certiorari

was filed on December 27, 1999. The jurisdiction of this

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

STATEMENT

1. The reserve components of the armed forces

consist of a Ready Reserve, a Standby Keserve, and a

Retired Reserve. 10 U.S.C. 10141(a). Members of the

Reserve may be required to serve for the duration of a

(1)

2

war or national emergency and for six months there-

after. 10 U.S.C. 12301(a). Members of the Ready Re-

serve may be required to participate in at least 48 drills

(“inactive duty for training”) and to serve on “active

duty for training” for at least 14 days each year. 10

U.S.C. 10147(a)(1); 32 C.F.R. 101.5. Members of the

Standby Reserve do not have yearly training obliga-

tions, but may participate in training on a voluntary

basis. C.A. App. 16la. Although the Department of

Defense (DOD) generally does not authorize military

pay to members of the Standby Reserve who volunteer

for training, members who train voluntarily may

nevertheless earn “points” towards retirement pay.

Ibid.

Members of the Ready Reserve are “screen{ed]” on a

continuous basis to ensure, among other things, that

the Ready Reserve does not retain (1) members with

“critical civilian skills” in greater numbers than neces-

sary, or (2) members “whose mobilization in an emer-

gency would result in an extreme * * * community

hardship.” 10 U.S.C. 10149(a). Under Department of

Defense regulations, the Ready Reserve may not con-

tain members holding a “key position” in the federal

government, defined as one “that cannot be vacated

during a national emergency or mobilization without

seriously impairing the capability of the parent Federal

agency or office to function effectively.” 32 C.F.R.

44,3(e).

The Attorney General and the Director of the

Federal Bureau of Investigation (FBI), with the con-

currence of the Department of Defense, have classified

the position of an FBI Special Agent as a “key position”

under 32 C.F.R. 44.3(e). See C.A. App. 60a, 61a, 63a.

As a result of that designation, Special Agents may not

serve in the Ready Reserve, but they may serve in the

3

Standby Reserve. /d. at 24a-25a, 63a-64a. Since

August 29, 1996, the FBI has permitted its Special

Agents in the Standby Reserve to volunteer for active

and inactive duty for training as long as the agency

approves the timing of their leave. Id. at 24a-25a, 63a.

2. The Uniformed Services Employment and Re-

employment Rights Act of 1994 (USERRA), 38 U.S.C.

4301 et seq., provides that an “employer” shall not deny

“initial employment, reemployment, retention in em-

ployment, promotion, or any benefit of employment” on

the basis of a person’s “membership, application for

membership, performance of service, application for

service, or obligation” for service in the uniformed

services of the armed forces. 38 U.S.C. 4311(a). An

“employer” is defined to include a “State” and the

“agencies and political subdivisions thereof,” and the

“Federal Government,” which is defined as “any Fed-

eral executive agency, the legislative branch of

the United States, and the judicial branch of the United

States.” 38 U.S.C. 4303(4), (6) and (14). The term

“agency,” however, excludes the FBI and the other

federal intelligence community agencies. 5 U.S.C.

2302(a)(2)(C)(ii) (1994 & Supp. IV 1998); 38 U.S.C. 4303

(5).

Private or state employees who claim that their

“employer has failed or refused, or is about to fail or

refuse, to comply with” USERRA may file a complaint

with the Secretary of Labor, who “shall investigate”

and attempt to “resolve the complaint by making rea-

sonable efforts to ensure that the person or entity

named in the complaint complies” with USERRA. 38

U.S.C. 4822(a) and (d) (1994 & Supp. III 1997). If the

Secretary’s efforts do not resolve the complaint (or the

employee did not ask the Secretary for assistance), a

private employee may sue his or her employer in

4

federal district court, 38 U.S.C. 4823(a)(2) and (b), while

a state employee may sue a state employer in state

court, 38 U.S.C. 4323(b). In either instance, the court

may require the employer to comply with USERRA,

compensate the employee for any lc 3t wages or bene-

fits, and, if the employer’s failure to comply was “will-

ful,” pay liquidated damages. 38 U.S.C. 4323.

Employees of federal executive agencies other than

the federal intelligence community agencies similarly

may file a complaint alleging a violation of USERRA

with the Secretary of Labor. 38 U.S.C. 4322(a)(2)(B)

(1994 & Supp. III 1997). If the Secretary is unable to

resolve the complaint (or the employee did not request

the assistance of the Secretary), the employee may sub-

mit a complaint to the Merit Systems Protection Board

(MSPB or Board). 38 U.S.C. 4824(b) (1994 & Supp. III

1997). The Board is empowered to “enter an order

requiring the agency or Office to comply with such

provisions and to compensate such person for any loss

of wages or benefits suffered by such person by reason

of such lack of compliance.” 38 U.S.C. 4824(c)(2). The

Board’s final decision is reviewable by the Court of

Appeals for the Federal Circuit. 38 U.S.C. 4324(d).

A different statutory enforcement scheme applies to

employees of federal intelligence community agencies.

An employee who alleges that a federal intelligence

community agency failed to comply with its USERRA

reemployment procedures, or that the failure of the

agency to reemploy the person was “otherwise wrong-

ful,” may submit a claim to the inspector general of the

agency. 38 U.S.C. 4325(a) and (b). The inspector

general “shall investigate and resolve the allegation

pursuant to procedures prescribed by the head of the

agency.” 38 U.S.C. 4325(b). The Act further provides

that an agency’s reemployment “determination * * *

|

5

shall not be subject to judicial review.” 38 U.S.C.

4315(c)(3).

8. Petitioners filed this kawsuit mm district court,

alleging that the FBI’s military reserve policy violates

USERRA, the Leave With Pay Act, 5 U.S.C. 6323, and

the Second Amendment to the United States Consti-

tution. The district court dismissed petitioners’

USERRA claims because petitioners did not exhaust

their administrative remedies under USERRA. Pet.

App. 23a-28a. The court explained that “in contrast to

the procedure established for employees of ‘States’ or

‘private employers,’ who may file claims in federal

district court, USERRA requires that an aggrieved

FBI employee proceed along administrative channels

by submitting a grievance under the Act to the in-

spector general of the agency.” Jd. at 24a. The district

court dismissed petitioners’ remaining claims on the

merits, holding that the FBI’s military reserve policy

does not violate either the Leave With Pay Act or the

Second Amendment. Id. at 28a-30a.

4, Petitioners appealed only the dismissal of their

USERRA claims, Pet. App. 9a, and the court of appeals

affirmed, holding that “it was clearly Congress’ intent

to preclude judicial review of USERRA claims by the

employees of the intelligence community,” id. at 1la.

The court noted that “while section 4323 of USERRA

expressly authorizes a civil enforcement action against

state and private employers, and section 4324 allows

review by the Courts of Appeal of MSPB decisions

concerning certain federal agencies, section 4325 omits

a similar civil enforcement scheme for FBI employees.”

Id. at 18a-14a. The Court further explained that,

because Section 4315(c)(3) states that an intelligence

community agency’s initial decision regarding employ-

ment under USERRA “shall not be subject to judicial

BP GEST AVAILABLE COPY

6

review,” and Section 4325(b) “provides that when an

employee submits a grievance regarding that decision

to the agency inspector general the inspector general

‘shall investigate and resolve the allegation pursuant to

procedures prescribed by the head of the agency,’” the

Act “prescribes no further review of any kind.” Id. at

13a (quoting 38 U.S.C. 4315(¢)(3), 4325(b)).

ARGUMENT

Petitioners contend (Pet. 12-30) that the Admini-

strative Procedure Act (APA) wai.2s sovereign im-

munity and authorizes district courts to decide whether

the FBI’s military reserve policy violates USERRA.

They also contend (Pet. 21-24) that the court of appeals’

contrary holding “significantly erodes the precedential

value of this Court’s decisions” in McNary v. Haitian

Refugee Center, Inc., 498 U.S. 479, 498-499 (1991), and

Bowen v. Michigan Academy of Family Physicians,

476 U.S. 667, 680-681 (1986), which rejected arguments

that the Immigration Reform and Control Act of 1986

and the Medicare Act, respectively, preclude judicial

review of facial constitutional and statutory challenges

to regulations implementing those statutes. Those con-

tentions are without merit.

1. The APA provides that “[a] person suffering legal

wrong because of agency action, or adversely affected

or aggrieved by agency action within the meaning of a

relevant statute, is entitled to judicial review thereof.”

5 U.S.C. 702. This Court has read that provision as

“embodying a ‘basic presumption of judicial review.”

Lincoln v. Vigil, 508 U.S. 182, 190 (1993) (quoting

Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967)). Be-

cause, however, the APA does not authorize judicial

review if the relevant statute “preclude[s] judicial

review” of agency action, 5 U.S.C. 701(a)(1), the “pre-

7

sumption of judicial review” is only “a presumption, and

‘like all presumptions used in interpreting statutes,

may be overcome by,’ inter alia, ‘specific language or

specific legislative history that is a reliable indicator of

congressional intent,’ or a specific congressional intent

to preclude judicial review that is ‘fairly discernible’

in the detail of the legislative scheme.” Michigan

Academy, 476 U.S. at 673 (quoting Block v. Community

Nutrition Inst., 467 U.S. 340, 349, 351 (1984)).

USERRA’s text, structure and legislative history

reveal a congressional intent to preclude judicial review

of claims by employees of federal intelligence com-

munity agencies such as the FBI. USERRA expressly

authorizes private and state employees to bring suit

against their employers who violate the stati.te and

obtain monetary and injunctive relief. 38 U.S.C. 4323

(1994 & Supp. III 1997). USERRA also expressly

authorizes an employee of a federal agency other than

intelligence community agencies to enforce USERRA

by filing a complaint with the MSPB, which may order

the agency to comply with USERRA and compensate

the employee for any loss of wages or benefits resulting

from its violation of the statute. 38 U.S.C. 4324(b) (1994

Supp. III 1997). The Act further permits federal

agency employees to obtain appellate court review of

the MSPB’s final decision. 38 U.S.C. 4324(d).

Significantly, the Act contains no comparable provi-

sions allowing either judicial review of, or the award

of injunctive or monetary relief for, violations of

USERRA by federal intelligence community agencies.

Thus, the Act does not authorize judicial review of ei-

ther the agency’s underlying employment decision or

the inspector general’s resolution of an employee’s

complaint. Instead, the Act expressly precludes judi-

cial review of federal intelligence community agencies’

8

determinations not to reemploy persons who have

served in the military, 38 U.S.C. 4315(c)(3), while per-

mitting those employees to pursue their reemployment

rights under USERRA by submitting a claim to the in-

spector general of the agency, 38 U.S.C. 4325(b).

As the court of appeals recognized, the compre-

hensive nature of USERRA, and the fact that the

statute “carefully addresses the rights of federal intelli-

gence agency employees, yet does not include them in

provisions for judicial review,” reflect “a congressional

judgment that those employees should not be able to

demand judicial review.” Pet. App. 14a (quoting United

States v. Fausto, 484 U.S. 489, 448 (1988)); see also

Fausto, 484 U.S. at 448 (inferring preclusion of judicial

review under Civil Service Reform Act of 1978 from

“(t]he comprehensive nature of the [CSRA], the atten-

tion that it gives throughout to the rights of non-

preference excepted service employees, and the fact

that it does not include them in provisions for admini-

strative and judicial review”); Block v. Community

Nutrition Inst., 467 U.S. at 345-348 (omission of review

procedures for consumers affected by milk market

orders, coupled with review procedures for affected

milk handlers, evinces Congress’s intent to preclude

consumers from obtaining judicial review); United

States v. Erika, Inc., 456 U.S. 201, 208 (1982) (con-

cluding that where statute authorized review of

eligibility determinations but not amount determina-

tions under Medicare Part B that “[iJn the context of

the statute’s precisely drawn provisions, this omission

provides persuasive evidence that Congress deliber-

ately intended to foreclose further review of such

[amount determination] claims”).

The legislative history confirms Congress’s intent

to preclude judicial review of claims arising under

9

USERRA brought by employees of federal intelligence

community agencies. An earlier version of USERRA

permitted employees of federal intelligence community

agencies, like employees of other federal executive

agencies, to enforce the Act by filing a complaint with

the MSPB and obtaining judicial review of the MSPB’s

decision. See S. Rep. No. 203, 102d Cong., Ist Sess. 9-10

(1991). The intelligence community agencies objected

to that enforcement provision, because it was “incon-

sistent with the current legal framework, which pro-

tects from outside review the hiring and firing decisions

in the national security context and the existing

[intelligence community] agency personnel practices

and procedures in national security matters.” Ibid.; see

also 5 U.S.C. 2302(a)(2)(C)(ii) (1994 & Supp. 1998) (ex-

empting intelligence community agency employees

from the Civil Service Reform Act of 1978); Padula v.

Webster, 822 F.2d 97, 100 (D.C. Cir. 1987) (the FBI’s

“employment practices have been traditionally unre-

viewable” by courts); Mead v. Merit Sys. Protection

Bd., 687 F.2d 285, 286 (9th Cir. 1982) (the MSPB “lacks

jurisdiction to consider allegations of improper per-

sonnel practices by excepted agencies like the FBI’).

In response to those objections, Congress excluded

employees of federal intelligence community agencies

from the administrative and judicial review provisions

applicable to other federal executive branch employees,

and drafted special USERRA provisions giving intelli-

gence community agency employees the right to

complain only to their agency’s inspector general. See

Joint Explanatory Statement on H.R. Rep. No. 995,

103d Cong., 2d Sess. (1994); 140 Cong. Rec. H9136 (daily

ed. Sept. 13, 1994). As the court of appeals correctly

concluded, that history demonstrates that “Congress

clearly intended to insulate the military service policies

10

of the [intelligence community] agencies from external

review.” Pet. App. 16a.

2. Petitioners contend (Pet. 16-20) that, because

Section 4315(c) expressly states that the FBI’s “re-

employment” determinations under USERRA “shall

not be subject to judicial review,” the Act permits

judicial review of other aspects of the FBI’s military

reserve policy, such as the requirement that Special

Agents obtain approval of the timing of their military

training leave from their FBI supervisors. That

argument—which to our knowledge has not been

addressed by any other court—is based on the

erroneous premise that an express preclusion of judicial

review of one type of agency action requires courts to

hold that other agency actions are reviewable. As this

Court has recognized, “[a]pplication of such a rule of

statutory construction would prevent a court from

giving effect to congressional intent that otherwise was

clear from ‘the context of the entire legislative

scheme.’” Morris v. Gressette, 432 U.S. 491, 506 n.22

(1977) (quoting Abbott Labs., 387 U.S. at 141).

As explained above, USERRA exempts employees of

federal intelligence community agencies from the pro-

visions that permit private, state, and other federal

agency employees to obtain judicial review of their

employers’ compliance with USERRA’s mandates, and

the Act permits employees of federal intelligence com-

munity agencies to enforce USERRA’s provisions only

by filing a claim with their agency’s inspector general.

Thus, the absence of a provision expressly allowing

judicial review of the intelligence community agencies’

personnel policies is “not an uninformative consequence

of the limited scope of the statute, but rather mani-

festation of a considered congressional judgment” that

intelligence community agency employees should not be

11

permitted to obtain administrative or judicial review of

their employers’ compliance with USERRA. Fausto,

484 US. at 448.

3. Petitioners also argue (Pet. 20-30) that the court

of appeals’ decision conflicts with McNary v. Haitian

Refugee Center, supra, and Bowen v. Michigan Acad-

emy of Family Physicians, supra. That argument—

which was not advanced or addressed in the lower

courts—is also incorrect and does not warrant further

review.

McNary presented the question whether a provision

of the Immigration Reform and Control Act of 1986,

which limits judicial review of an INS decision to deny

“special agricultural worker” (SAW) status to other-

wise illegal aliens, 8 U.S.C. 1160(d)(8) and (e), “pre-

cludes a federal district court from exercising general

federal-question jurisdiction over an action alleging a

pattern or practice of procedural due process violations

by the [INS] in its administration of the SAW pro-

gram.” 498 U.S. at 483. This Court held that “[g]iven

Congress’ choice of statutory language,” the statute

“applies only to review of denials of individual SAW

applications” and does not preclude “challenges to the

procedures used by the INS.” Jd. at 494. This Court

explained that a contrary holding would bar the

plaintiffs from obtaining judicial review of “substantial”

constitutional challenges to the INS’s administration of

the SAW program. Id. at 498.

Michigan Academy held that provisions of the Medi-

care Act, which the Court had previously held in United

States v. Erika, Inc., 456 U.S. at 208, to preclude judi-

cial review of the amount of benefits paid to individual

beneficiaries under Medicare Part B, did not preclude

judicial review of constitutional and statutory chal-

lenges to the regulations implementing Part B of the

12

Medicare Act. See 476 U.S. at 668, 676. The Court held

that “[clareful analysis of the governing statutory

provisions and their legislative history” reveals that

“Congress intended to bar judicial review only of deter-

minations of the amount of benefits to be awarded

under Part B” and did not intend to insulate “challenges

to the validity of the Secretary’s instructions and regu-

lations” from judicial review. Jd. at 678. The Court

noted that this construction of the statute avoided the

“serious constitutional question” that would arise if it

interpreted the statute to “deny a judicial forum for

constitutional claims arising under Part B of the

Medicare program.” /d. at 681 n.12 (citing Weinberger

v. Salfi, 422 U.S. 749, 762 (1975), and Johnson v.

Robison, 415 U.S. 361, 366-367 (1974)).

Neither McNary nor Michigan Academy conflicts

with the court of appeals’ holding in this case, which

interpreted a different statutory scheme to preclude

judicial review. Because “the context of the entire

legislative scheme differs from statute to statute,” each

decision involving implied preclusion of judicial review

is, in some ways, unique. Morris v. Gressette, 482 U.S.

at 505 n.20 (internal citations omitted). As explained

above, USERRA’s text and legislative history reveal

that Congress exempted the federal intelligence agen-

cies from the judicial review provisions of USERRA in

order to preserve those agencies’ historic authority to

insulate their employment decisions and personnel

practices from outside review.’ Moreover, the decision

1 Petitioner’s argument would also turn the statutory scheme

“upside down,” Fausto, 484 U.S. at 449-450, by subjecting intelli-

gence agency decisions to greater judicial scrutiny than those by

other federal agencies, which are initially reviewed by the Merit

System Protection Board and then the Federal Circuit under the

13

below holds only that the Act precludes judicial review

of petitioners’ claim that the FBI’s military reserve

policy violates USERRA.? The government did not

argue, and the court of appeals did not hold, that

USERRA precludes judicial review of constitutional

challenges to the FBI’s military policy.’

Thus, unlike McNary and Michigan Academy, this

case does not raise the question whether Congress

intended to preclude judicial review of substantial con-

stitutional challenges to an agency’s implementation

of a statute. Although this Court has required a

“heightened showing” that Congress intended to pre-

clude judicial review of constitutional claims in order

to avoid the “serious constitutional question” that such

a statute would raise, it has not applied this more

stringent standard in cases such as this, where the

question is whether Congress intended to preclude

judicial review of an agency’s compliance with a statu-

tory command. Webster v. Doe, 486 U.S. 592, 603-604

deferential arbitrary and capricious and substantial evidence

standard. 5 U.S.C. 7703(c); 38 U.S.C. 4324.

2 Petitioners also contend (Pet. 25-29) that the FBI’s military

reserve policy violates the DOD regulations concerning the de-

signation of “key” federal employees. Their Complaint, however,

alleges only that the FBI’s policy violates USERRA, the Leave

With Pay Act, and the Second Amendment (C.A. App. 8a-23a), and

that is how the district court interpreted the Complaint (Pet. App.

17a-18a). Moreover, the court of appeals held only that USERRA

precludes “judicial review of USERRA claims by the employees of

the intelligence community.” Jd. at 1la (emphasis added). There-

fore, the petition for certiorari does not properly raise the question

whether the FBI’s compliance with the DOD regulations is subject

to judicial review.

3 The district court dismissed on the merits petitioners’ consti-

tutional challenge to the policy, and petitioners did not appeal the

district court’s determination. Pet. App. 9a.

14

(1988) (quoting Michigan Academy, 476 U.S. at 681

n.12, and holding that Congress precluded judicial

review of the CIA Director’s decision to terminate an

employee under the National Security Act of 1947, but

did not preclude judicial review of constitutional chal-

lenges to the termination). The court of appeals’

decision is thus consistent with this Court’s precedents,

and further review is not warranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

DAVID W. OGDEN

Acting Assistant Attorney

General

MICHAEL JAY SINGER

KATHLEEN MORIARTY MUELLER

Attorneys

FEBRUARY 2000