Petition for Writ of Certiorari — Hamlet v. United States, 116 S. Ct. 1542 (1996) (No. 95-1173)

Supreme Court, U.S.

PILB BD

WB 117 8 An 22 199%

OFFICE OF SHE CLERK

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1995

LOUISE J. HAMLET,

Petitioner,

THE UNITED STATES,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Federal Circuit

PETITION FOR WRIT OF CERTIORARI

Alexander W. Bell

715 Court Street

P. O. Box 739

Lynchburg, Virginia 24505

(804) 528-0411

January 19, 1996 Counsel for Petitioner

I

—

QUESTIONS PRESENTED FOR REVIEW

1. Does the Court of Federal Claims have jurisdiction

under the Tucker Act over a contract claim where the

plaintiff's pleadings allege and the uncontradicted evidence in

the record shows both that the plaintiff had a contract of

employment with the government promising her pay for work

and requiring good cause for her dismissal, and that she was

dismissed without good cause, in violation of both her

contract and applicable agency regulations?

rd Is there a hybrid category of federal worker who is an

"appointee" though not an "employee" as defined by the Civil

Service Reform Act, whose discharge from employment is

not subject to review either by the Merit System Protection

Board or the courts?

ii

TABLE OF CONTENTS

Questions Presented for Review

lable of Authorities

Opinions Below

FUTIOGEONIOM 20

Statutes and Regulations Involved

Statement of the Case

Reasons for Granting the Writ

Argument in Support of the Petition for Certiorari

Conclusion .......

Certificate of of Service

lil

~

ill

TABLE OF AUTHORITIES

I. CASES

Army and Air Force Exch. Serv. v. Sheehan,

456 US. TAB CISGE? oo 6 bie es 6 10, 13, 14

Flathead Joint Board of Control of the Flathead,

Mission and Jocko Valley Irrigation Districts

v. United States, 30 Fed. Cl. 287 (1993) ..... 10

Hamlet v. United States, 63 F.3d 1097 (Fed Cir. 1995)

(CAFC Hamlet III) .......... 1, 11, 13, 14, 15

Hamlet v. United States, No. 93-5075 (Fed. Cir.,

Nov. 23 1993) (CAFC Hamlet II) ........... 2

Hamlet v. United States, 873 F.2d 1414 (Fed. Cir. 1989)

{Oo eg UE | ee 2, 7, 11, 14, 16

Hamlet v. United States, No. 281-86C (Fed. Cl.

Mar. 23, 1994) (CFC Hamlet Ill) ........... 2

Hamlet v. United States, No. 281-86C (Cl. Ct.

Oct; 2, 1992( (CFC Hamlet I) ............. 2

Hamlet v. United States, 14 Cl. Ct. 62 (1988)

bg OE | Re ae eee ee 9 ae 2

Hopkins v. United States, 206 Ct. Cl. 303,

cee ge |_|. ) SR ee 6,9

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)... 15

1V

Service v. Dulles, 354 U.S. 363 (1957) 13

Silverman v. United States, 230 Ct. Cl. 701,

679 F.2d 865 (1982) 10

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

98 L.Ed. 2d 830 (1988) 10. 14

United States v. Hopkins,

427 U.S. 123 (1976) 6, 7, 9, 10, 12, 14, 16

i] STATUTES

susc S105 (1977 & Supp 1994) 4. ll, 12, 15

28 U.S.C. §1254 (1993) 2

28 U.S.C. §1491 (1994) 2

Federal Courts Administration Act of 1992.

Pub. L. No. 102-572 §902(a), 106 Stat. 4506, 4516 :

i REGULATIONS

22-PM 9445, 446, 455 ;

In The

Supreme Court of the United States

October Term, 1995

LOUISE J. HAMLET

Petitioner.

THE UNITED STATES,

Respondent

Petition for a Writ of Certiorar

to the United States Court

of Appeals for the Federal Circuit

Louise J. Hamlet respectfully petitions for a Writ of

Certiorari to review the judgment of the Federal Circuit Court

of Appeals entered in this case on August 17, 1995, for which

7

j

a rehearing was denied on October 27, 1995.

OPINIONS BELOW

[he opinion of the Court of Appeals for the Federal

Circuit, whose judgment is sought to be reviewed, is reported

as Hamlet v. United States, 63 F.3d 1097 (Fed. Cir. 1995)

2

(CAFC Hamlet III), and is set out in the separate Appendix

to this Petition at pp. 3 to 22. The prior opinion of the

United States Court of Federal Claims, Hamlet _v. United

States, No. 281-86C (Fed. Cl. Mar. 23, 1994) (CFC Hamlet

Ill) is unpublished, and is reprinted in the separate Appendix

to this Petition at pp. 23 to 30.

Of the two previous opinions of the Court of Appeals

for the Federal Circuit reversing the earlier Claims Court

dismissals of Mrs. Hamlet’s suit, Hamlet v. United States,

No. 93-5075 (Fed. Cir., Nov. 23, 1993, WL 481140) (CAFC

Hamlet II) and Hamlet v. United States, 873 F.2d 1414 (Fed.

Cir. 1989), (CAFC Hamlet 1), and the first and second

opinions of the United States Claims Court and Court of

Federal Claims, Hamlet v. United States, No. 281-86C (CI.

Ct. Oct. 2, 1992) (CFC Hamlet II) and Hamlet v. United

States, 14 Cl. Ct. 62 (1988) (CFC Hamlet I), only CAFC

Hamlet I, 873 F.2d 1414 (1989) and CFC Hamlet II, No. 93-

5075 (Fed. Cir. Nov. 23, 1993) are reprinted in the separate

Appendix to this petition at pp. 35 and 31, respectively.

JURISDICTION

This Court has jurisdiction to review the judgment of

the Court of Appeals for the Federal Circuit dismissing the

case for want of jurisdiction under the Tucker Act by writ of

certiorari under 28 U.S.C. §1254(l). The judgment dismissing

the case was entered on August 17, 1995. A rehearing was

denied on October 27, 1995.

STATUTES AND REGULATIONS INVOLVED

The Tucker Act, 28 U.S.C. §1491(ay(1) (1988 &

Supp. V 1993) provides in pertinent part:

3

The United States Court of Federal Claims

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 United States Department of Agriculture

("USDA") Agricultural Stabilization and Conservation Service

("ASCS") regulations (the "22-PM Manual") imposing

limitations on the agency’s right to dismiss employees require

in 99445 & 446, that ASCS authorities use "principles of

fairness" in personnel actions, removing employees only if

facts established beyond a "reasonable doubt" are "severe

enough to require removing the employee," rather than some

less drastic alternative such as “counselling,” "improved

supervision" or "a letter of reprimand."

These same regulations provide at 4455 for the award

of backpay to wrongfully discharged employees:

An employee under permanent appointment

who is restored to duty . . . is eligible for

backpay as follows:

(1) Backpay shall be at the rate

that the employee would have

earned had the employee

remained on the rolls.

(a)

[he definition of "employee" for all purposes in the

United States Code is contained in 5 U.S.C. §2105(a), which

4

Pay compensation to employee

for the period of suspension

and separation, minus any

amount earned by the employee

during the period, including

unemployment compensation.

provides in pertinent part:

(a)

For the purpose of this title,

"employee", except as otherwise provided by

this section or when specifically modified,

means an officer and an individual who is --

(1)

appointed in the civil service by one of

the following acting in an official

capacity--

(D) an individual who is an

employee under this section;

subject to the supervision of an

individual named by paragraph (1) of

this subsection while engaged in the

performance of the duties of his

position.

5

STATEMENT OF THE CASE

Louise Hamlet was fired from her position as a

program assistant in the United States Department of

Agriculture ("USDA") Agricultural Stabilization and

Conservation Service ("ASCS") office in Charlotte County,

Virginia, on January 11, 1985. The pleadings allege and the

evidence in the record shows that the firing was without good

cause, breached her employment contract with the agency,

and violated agency rules and regulations.’ As a result of

her dismissal she was permanently barred from further

government employment with the ASCS, despite the fact that

during her twenty-eight-and-one-half-year tenure with the

agency prior to her discharge, she had received an unbroken

string of Certificates of Satisfactory Service for her work.

In May 1986 Mrs. Hamlet filed a suit in the United

States Claims Court,’ alleging that her discharge without

good cause violated her employment contract, the applicable

agency regulations and her constitutional rights. Since Mrs.

Hamlet was not and never had been a civil service employee,

even in the "excepted" service, her claim rested in large part

' While the dismissal of the case on jurisdictional grounds makes

the merits of Mrs. Hamlet’s claim essentially irrelevant for the purposes

of this petition, it is notable that the trial court, upon hearing the only

demonstrated ground for Mrs. Hamlet’s dismissal, characterized it as “a

minor thing" and “absurd.” (Transcript of July 13, 1992 hearing at pp. 93,

111).

Effective October 29, 1992, the United States Claims Court

became the United States Court of Federal Claims. Federal Courts

Administration Act of 1992, Pub. L. No. 102-572, §902(a), 106 Stat.

4506, 4516. The trial court will be referred to hereinafter as the “Court

of Federal! Claims.”

'$)

on the holding of this Court in United States v. Hopkins, 427

U.S. 123, 129 (1976) that Tucker Act jurisdiction in the

Court of Federal Claims can be premised on an implied-in-

fact employment contract theory based on a "series of cases

from the private sector of the economy holding that the

typical employee-employer relationship [is] contractual in

nature."”

Over the next nine years, in an extraordinary and

contradictory series of decisions in the Court of Federal

Claims and the Court of Appeals for the Federal Circuit, Mrs.

Hamlet’s suit was initially dismissed for want of jurisdiction

under the Tucker Act, was reinstated, was tried in the Court

of Federal Claims, was dismissed again and reinstated again

because the Court of Federal Claims made inadequate

findings of fact and conclusions of law, and was ultimately

dismissed for want of jurisdiction under the Tucker Act in a

remarkable Federal Circuit opinion that sua sponte declared

invalid the USDA ASCS regulations which had been

demonstrated to have been violated in Mrs. Hamlet’s

dismissal and which supported her entitlement to backpay on

the agency regulation claim.

The question presented for review in this case is

whether the Court of Federal Claims has jurisdiction under

the Tucker Act over a breach of contract case in which the

pleadings allege and the uncontradicted evidence in the record

shows that the plaintiff had a contract of employment with

> In so holding, this Court expressly approved the earlier ruling of

the Court of Federal Claims in that case that "the employment status of

non-federal employees is governed by the same rules of law applicable to

private employer-employee relationships.” Hopkins v. United States, 206

Ct. Cl. 303, 312, 513 F.2d 1360, 1365 (1975).

7

the Government promising her pay for work and requiring

good cause for her dismissal, and that she was dismissed

without good cause, in violation both of her contract and of

agency rules and regulations. The ultimate Federal Circuit

ruling that there is no jurisdiction of such a claim under the

Tucker Act is in direct contravention not only of this Court’s

ruling in United States v. Hopkins, 427 U.S. 123, 129 (1976),

but of the Federal Circuit’s own initial ruling in this case,

CAFC Hamlet I, 873 F.2d 141 (Fed. Cir. 1989).

REASONS FOR GRANTING THE WRIT

The judgment of the United States Court of Appeals

for the Federal Circuit should be reviewed by this Court

because the ruling conflicts with this Court’s ruling in United

States v. Hopkins, 427 U.S. 123 (1976). The Federal Circuit

decision wrongly restricts the jurisdiction of the Court of

Federal Claims under the Tucker Act to entertain breach of

employment contract and violation of agency regulation

claims for the plaintiff and approximately 13,000 ASCS

employees such as the plaintiff who are not and never have

been covered by the civil service laws.

ARGUMENT IN SUPPORT OF THE

PETITION FOR CERTIORARI

[. THE COURT OF FEDERAL CLAIMS HAS

JURISDICTION UNDER THE TUCKER ACT

OVER A CONTRACT CLAIM WHERE THE

PLAINTIFF’S PLEADINGS ALLEGE AND THE

UNCONTRADICTED EVIDENCE IN THE

RECORD SHOWS BOTH THAT THE PLAINTIFF

HAD A CONTRACT OF EMPLOYMENT WITH

THE GOVERNMENT PROMISING HER PAY FOR

8

WORK AND REQUIRING GOOD CAUSE FOR

HER DISMISSAL, AND THAT SHE WAS

DISMISSED WITHOUT GOOD CAUSE, IN

VIOLATION OF BOTH HER CONTRACT AND

APPLICABLE AGENCY REGULATIONS.

The linchpin of the Federal Circuit decision to dismiss

Mrs. Hamlet’s breach of contract claim against the

government after nine years of litigation is that the plaintiff's

right to damages for breach of her employment contract

rested solely on the ASCS backpay regulation declared

invalid in the panel’s decision (Opinion at 6, n.3}. This is not

true as a matter of fact or logic.

The trial record showed that the employment contract

sued on arose when Mrs. Hamlet was hired, in 1956, years

before the ASCS regulations were first promulgated sometime

in the 1960s. The Government conceded below that Mrs.

Hamlet was hired in 1956 by the authorities given the

authority by 7 C.F.R. §§7.21-7.25 to "employ" workers in the

ASCS county offices. She was promised pay in exchange for

work and was told she had a job as long as she did a good

job. This duly-authorized promise created both an entitlement

to pay and a “good cause" requirement for dismissal that pre-

dated and exists independently of the ASCS regulations

declared invalid by the panel.

After hearing the evidence introduced both by Mrs.

Hamlet and the Government at the trial on “the issue of

whether a contract between Mrs. Hamlet and the United

States was formed," the trial judge declared:

Now [Mrs. Hamlet] got up on the stand today

and said, This particular individual told me

I

9

one, two and three. And on the strength of

that, I gave up whatever I was doing before

and went to work for the ASCS,’ which

sounds like consideration. It sounds like a

promise and an acceptance. It seems to have

the classic elements of a contract.

(Transcript of February 14, 1992, hearing at p. 152). The

trial court then went on to rule that

[pjlaintiff has made at least a prima facie

showing that she had a contract with the

United States, as defined by the Federal

Circuit opinion which controls this case.

(Order of April 24, 1992).

Both this Court and the Court of Federal Claims have

held that the employment relationship for non-civil service

employees such as Mrs. Hamlet is "inherently contractual."

United States v. Hopkins, 427 U.S. 123, 129, 49 L. Ed. 2d

1361 (1976); Hopkins v. United States, 206 Ct.Cl. 303, 513

F.2d 1360.

The promise of pay for work is the essence of an

employment relationship. Mrs. Hamlet showed that she had

been promised continued employment -- and pay therefor --

when she was hired in 1956. In exchange for this promise,

she gave the Government over twenty-eight years of

satisfactory service. The only evidence in the record is that

she was an "excellent" employee, until she was wrongfully

fired on "absurd" grounds.

10

One need not be the beneficiary of a money-

mandating regulation formally adopted pursuant to the

Administrative Procedure Act in order to hold the United

States to its duly-authorized promise. See, e.g., Flathead Joint

Board of Control of the Flathead, Mission and Jocko Valley

Irrigation Districts v. United States, 30 Fed. Cl. 287 (1993).

Mrs. Hamlet had a contractually-enforceable right to the pay

and benefits she received for twenty-eight-and-one-half years,

regardless of the validity vel non of the agency regulations

declared invalid by the Federal Circuit. See, e.g., Silverman

v. United States, 230 Ct. Cl. 701, 679 F.2d 865, 870 (1982),

where an FTC official made an express promise to pay the

plaintiff for his services. The services were then performed,

and the FTC was thus benefitted. The claims court found

that "[b]y accepting the benefits flowing from the senior FTC

official’s promise of payment, the FTC ratified such promise

and was bound by it."

This Court’s opinion in Army and Air Force Exch.

Serv. v. Sheehan, 456 U.S. 728, 738 (1982) did not overrule

the holding in Hopkins. In Sheehan, unlike this case, there

was no independent evidence adduced as to the plaintiff's

emp!oyment status at the trial. Sheehan, 456 U.S. at 737. In

this case, the evidence at trial showed that the plaintiff had an

employment contract with the United States.

While this Court did rule in United States v. Fausto,

484 U.S. 439, 98 L.Ed. 2d 830 (1988), that employment

contract claims against the government cannot be maintained

by employees who are covered by the Civil Service Reform

Act, employees in Mrs. Hamlet’s position are not and never

were covered by the Civil Service Reform Act. Thus the

ruling in Hopkins controls Mrs. Hamlet’s employment

contract claim, as the Federal Court itself ruled in its initial

1]

decision in this case, CAFC Hamlet I, 873 F.2d 1414 (Fed.

Cir. 1989).

This is a simple breach of contract case, an elementary

breach of the Government’s promise to pay. The substantive

right to compensation required for Tucker Act jurisdiction

flows directly from Mrs. Hamlet’s employment contract with

the United States. If Mrs. Hamlet can prove both the promise

and the breach, as she did in the trial court, she is entitled to

recover: it is as simple as that.

IT. THERE IS NO HYBRID CATEGORY OF

FEDERAL WORKER WHO IS AN "APPOINTEE"

THOUGH NOT AN "EMPLOYEE" AS DEFINED

BY THE CIVIL SERVICE REFORM ACT, WHOSE

DISCHARGE FROM EMPLOYMENT IS NOT

SUBJECT TO REVIEW EITHER BY THE MERIT

SYSTEM PROTECTION BOARD OR ‘THE

COURTS.

Despite the uncontradicted evidence in the record

establishing that Mrs. Hamlet was employed under a contract

of employment with the ASCS, and the Federal Circuit’s own

ruling that Mrs. Hamlet is not an "employee" within the

meaning of 5 U.S.C. §2105(a), the final Federal Circuit

opinion stated that "nothing in the record rebuts the

presumption that a federal employee is employed by

appointment and not by contract or quasi-contract.". CAFC

Hamlet II], 63 F.3d at 1102, Appendix at 9. By resort to this

apparently irrebuttable "presumption," the Federal Circuit

defined out of existence Mrs. Hamlet’s right to employment

contract remedies.

— —— ee

_ et a et em

12

This creation of a hybrid class of federal employees --

"appointees" -- who are entitled neither to backpay under the

Civil Service Reform Act nor to contract remedies under the

Tucker Act rests upon a semantic confusion similar to

conflating the dancer with the dance.

There simply is no separate category of federal

employees known as "appointees" as distinct from

"employees" as defined in 5 U.S.C. §2105(a), which describes

those federal employees covered by the Civil Service Reform

Act with reference to the term "appointee." Since Civil

Service "employees" are “appointed,” courts often refer to

"“employees-covered-by-the-Civil-Service-Act" as

"appointees," but "appointee" has no separate meaning -- and

is certainly not a category of government employee distinct

from the definition of “employee” set out in 5 U.S.C.

§2105(a). And as the Government has conceded and the

Federal Circuit itself has ruled in this case, Mrs. Hamlet is

most definitely not an "employee" within the meaning of 5

U.S.C. §2105(a).

The error of the Federal Circuit opinion ruling is that

it turns an anecdotal shorthand description of the means by

which one obtained one’s job into the kind of employee one

is after the employment relationship is entered into. The

characteristic of the "appointee" class created by the Federal

Circuit opinion in this case is that its members have none of

the rights, duties or obligations accruing to "employees"

within the meaning of 5 U.S.C. §2105(a), nor any of the

employment contract rights to which they would otherwise be

entitled pursuant to this Court’s decision in United States v.

Hopkins, 427 U.S. 123 (1976). Indeed, "appointees"

apparently do not even have the right to insist that an agency

follow its own rules and regulations with respect to

13

termination and discipline, in apparent contravention of this

Court’s ruling in Service v. Dulles, 354 U.S. 363 (1957).

"Appointees," as contrasted to "employees," apparently have

no rights at all.

The Assistant Personnel Officer for the ASCS,

William J. Teto, testified at the trial in this case in response

to specific questioning on the subject that he was aware of no

definition of "appointee" of the sort ultimately adopted by the

Federal Circuit. He stated that "appointee" may be defined in

the federal personnel manual applicable to civil service

"employees," but conceded that Mrs. Hamiet was not covered

by those regulations.

One searches in vain for any case cited by the court

below where "appointee" is used in any context other than

that federal "employees" "appointed" within the meaning of

5 U.S.C. §2105(a) are precluded from filing contract claims

against the government.

An examination of the cases upon which the Federal

Circuit opinion rests demonstrates this point. The employee

in Army & Air Force Exchange Service v. Sheehan. supra,

456 U.S. at 738-41, was denied backpay not because he was

an "appointee" but because AAFES employees were

specifically denied the right to backpay benefits as a matter

of demonstrated congressional intent, since employees of the

military exchange services were expressly excluded from

coverage under 5 U.S.C. §2105(c)(1) (1994). In Mrs.

Hamlet’s case, by contrast, even the final Federal Circuit

opinion acknowledges that "ASCS employees are not

explicitly excluded from the definition of "’employee[.]’"

CAFC Hamlet III, 63 F.3d at 1106, Appendix at 20.

14

Sheehan, therefore, has nothing to do with this case. CAFC

Hamlet Ill, 63 F3d at 1107, Appendix at 19, n.7.

Thus it can hardly be said that the reasoning of the

decision below “follows that of the Supreme Court in. . .

Sheehan” CAFC Hamlet III, 63 F3d. at 1106, Appendix at 19.

Congressional silence cannot fairly be said to deny a contract

remedy to Mrs. Hamlet, even if silence means the ASCS

backpay regulations are invalid, because the regulations are

somehow “inconsistent” with something in the “penumbra” of

legislative silence.

Secondly, Mrs. Hamlet, unlike the employee involved

in United States v. Fausto, 484 U.S. 439, 98 L.Ed. 2d 830

(1988), is not an employee who is or ever was covered by the

Civil Service Reform Act, even as an “excepted” employee,

and therefore is not precluded from asserting a claim either

for breach of contract or for a violation of agency regulations

by that Act. To hold otherwise, as the Federal Circuit has

done, is ruling that Fausto overruled Hopkins, which it did

not do. The holding in CAFC Hamlet Ill also sub silentio

overrules CAFC Hamlet |, 873 F.2d 1414 (Fed. Cir. 1989),

Appendix at 35, which correctly held that Mrs. Hamlet's

employment contract claim was cognizable under the Tucker

Act.

The effect of the final Federal Circuit decision is to

deny Mrs. Hamlet the right to sue on her employment

contract, even though she was not and never had been

included -- even negatively, in the “excepted” service -- in the

comprehensive scheme established by the Civil Service

Reform Act. Since employees like Mrs. Hamlet were not

included in the Civil Service Act scheme, it cannot fairly be

said that Congress “intended” to deny these employees

15

"backpay” remedies for violations of their employment

contracts. The court’s decision in CAFC Hamlet II] converts

those 13,000 ASCS employees into “people without a

country" who are employees at will, despite promises of the

sort which the record establishes were made to Mrs. Hamlet:

that they will receive pay for their work and will not be

dismissed except for good cause.

The effect of the Federal Circuit’s opinion, if upheld,

means that when the Government wrongfully discharges an

employee in the newly-minted category of “appointee,” relief

is unavailable either before the Merit System Protection

Board or in the courts. In the final analysis, the Federal

Circuit’s refusal on jurisdictional grounds to allow the Court

of Federal Claims to entertain Mrs. Hamlet’s request for relief

under the Tucker Act constitutes a denial of any opportunity

for review in any forum of the wrongful termination of her

employment. This sort of result has been intolerable under

our judicial system since at least as long ago as Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 163 (1803), establishing the

principle of judicial review of wrongful executive action on

the premise that [t]he very essence of civil liberty certainly

consists in the right of every individual to claim the

protection of the laws, whenever [s]he receives an injury."

It is respectfully submitted that the Federal Circuit’s

sua sponte creation of an ersatz category of federal

“appointees” who are not "employees" within the meaning of

> U.S.C. §2105(a) and who have no rights whatsoever, either

under their contracts of employment or under the Civil

Service Reform Act, is wrong and should be reversed by this

Court

16

CONCLUSION

By ruling that the Tucker Act confers no jurisdiction

in the Court of Federal Claims over express and implied

employment contract actions such as Mrs. Hamlet’s, the court

below has construed the Tucker Act in a manner contrary to

its express terms. Further, by creating a legal category of

federal employees which does not exist in fact, the Federal

Circuit has denied the plaintiff a contract remedy to which

she is entitled both under United States v. Hopkins, 427 U.S.

123, 129 (1976) and the Federal Circuit’s own earlier

decision in CAFC Hamlet I, 873 F.2d 1414 (Fed. Cir. 1989),

Appendix at pp. 35. Indeed, the Federal Circuit decision has

created an area of unreviewable executive action, an anomaly

under our scheme of government and an unfair result that

cannot in any reasonable sense be attributed to a

Congressional directive. This ruling -- the third by the

Federal Circuit in Mrs. Hamlet’s case -- affects some 13,000

ASCS county employees in the plaintiff's position. The

ruling is wrong and should be reversed.

RESPECTFULLY SUBMITTED

LQUISE J/ HAMLET

Alexander W. Bell | R

715 Court Street

P. O. Box 739

Lynchburg, Virginia 24505-0739

(804) 528-0411

Counsel for Petitioner

17

CERTIFICATE OF SERVICE

[ hereby certify that I placed in the United States mail.

first class, postage prepaid, on January 19, 1996, three true

copies of the foregoing Petition for Writ of Certiorari and the

separate Appendix filed with the Petition to Domenique

Kirchner, Esquire, Commercial Litigation Branch, Civil

Division, U.S. Department of Justice, Washington, D.C.,

20530, Attn: Classification Unit, 2nd :¥ To ilding.

j ~

LAA

Alexander W. Bell