Nat'L Treasury Employees Union v. Whipple

Decision Date20 July 2009
Docket NumberCivil Action No. 07-168 (RWR).
Citation636 F.Supp.2d 63
PartiesNAT'L TREASURY EMPLOYEES UNION, Plaintiff, v. Kathie Ann WHIPPLE, Defendant.
CourtU.S. District Court — District of Columbia

Gregory J. O'Duden, Timothy B. Hannapel, Larry J. Adkins, National Treasury Employees Union, Office of General Counsel, Washington, DC, for Plaintiff.

Tamara Lynn Ulrich, U.S. Department of Justice, Washington, DC, for Defendant.


RICHARD W. ROBERTS, District Judge.

The National Treasury Employees Union ("NTEU") brings this action against the Director of the U.S. Office of Personnel Management ("OPM" or "Director")1 under the Administrative Procedure Act ("APA"), alleging that OPM's promulgation of a regulation authorizing the Federal Career Intern Program ("FCIP") was arbitrary, capricious, and contrary to law. The Director has moved to dismiss, claiming that NTEU lacks standing, the claim is precluded by the Civil Service Reform Act ("CSRA"), NTEU waived its claim by not raising it during rulemaking, and the claim is barred by the doctrine of laches. NTEU opposes the motion to dismiss and has moved to require the Director to file the administrative record in order for NTEU to respond to the waiver argument. Because NTEU has associational standing and the claim is not precluded by the CSRA or barred by laches, the Director's motion to dismiss on these grounds will be denied. Because the administrative record will be needed to determine whether the Director's waiver argument should prevail, the Director's motion to dismiss as to the waiver issue will be denied without prejudice and NTEU's motion to compel will be granted.2


NTEU represents the collective bargaining interests of certain federal employees at the Internal Revenue Service ("IRS"), the Federal Deposit Insurance Corporation, and the Department of Homeland Security's Bureau of Customs and Border Protection. (Compl. ¶ 3.) For some federal government positions, competitive examinations for applicants are required for appointment to the competitive service. See 5 U.S.C. § 3304. However, § 3302 provides "as nearly as conditions of good administration warrant, for . . . necessary exceptions of positions from the competitive service." 5 U.S.C. § 3302. (See also Compl. ¶ 6.) On December 14, 2000, OPM issued an interim regulation implementing the FCIP. (Compl. ¶ 11.) A final regulation, which adopted the interim regulation with a few minor changes, was issued on August 2, 2005. (Id. ¶ 12.) See also 5 C.F.R. § 213.3202(o)(2006). The regulation allowed agencies "unfettered discretion to use FCIP authority to fill vacancies in virtually any position, even those for which it is practicable to hold a competitive examination." (Compl. ¶ 13 (emphasis omitted).) Agencies have incentives to hire interns under the FCIP because many of the procedural requirements for hiring into competitive service positions do not apply. (Id. ¶ 14.) For example, under the FCIP, agencies are no longer required to make public announcements of positions on the USAJOBS website,3 follow rules governing rating and ranking applicants' qualifications, or provide extra points to applicants with veteran status. (Id.) After two years, the intern appointment may be converted to a career or career conditional status in the competitive service. (Id. ¶ 16.) NTEU alleges that three groups of workers represented by NTEU were injured by the FCIP's implementation: 1) current FCIP interns; 2) employees who apply for positions under the FCIP; and 3) employees at the IRS who seek promotions. (Id. ¶¶ 17, 21, 22.)

The Director moves under Federal Rule of Civil Procedure 12(b)(1) to dismiss for lack of jurisdiction, arguing that NTEU does not possess Article III standing, and the claims are precluded by the CSRA. The Director also moves under Rule 12(b)(6) to dismiss for failure to state a claim, arguing that NTEU waived its challenge by failing to submit a comment during the rulemaking process, and that laches bars relief. NTEU opposes dismissal, but has moved to compel the Director to file the administrative record before NTEU must respond to the waiver argument. The Director opposes NTEU's motion to compel, asserting that NTEU does not need the administrative record to respond and the Federal Register's descriptions are adequate.


"On a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has subject-matter jurisdiction." Larsen v. U.S. Navy, 486 F.Supp.2d 11, 18 (D.D.C.2007). "Because subject-matter jurisdiction focuses on the court's power to hear the claim, however, the court must give the plaintiff's factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion." Jin v. Ministry of State Sec., 475 F.Supp.2d 54, 60 (D.D.C.2007). The court may look beyond the complaint, but "`must accept as true the allegations in the complaint and consider the factual allegations of the complaint in the light most favorable to the non-moving party.'" Short v. Chertoff, 526 F.Supp.2d 37, 41 (D.D.C.2007) (quoting Erby v. United States, 424 F.Supp.2d 180, 181 (D.D.C.2006)). See also Nat'l Ass'n of Home Builders v. U.S. Army Corps of Eng'rs, 539 F.Supp.2d 331, 337 (D.D.C. 2008) (stating that "the court is not limited to the allegations contained in the complaint" and can consider other undisputed facts on the record).

A. Civil Service Reform Act

The CSRA is a comprehensive scheme which provides protections to most federal civil servants and exclusive remedies to such employees aggrieved by adverse personnel actions. United States v. Fausto, 484 U.S. 439, 443, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). The Director relies on Fornaro v. James, 416 F.3d 63 (D.C.Cir.2005) to assert that the CSRA preempts the NTEU's APA claims filed in this court. (Def.'s Mem. in Supp. of Mot. to Dismiss ("Def.'s Mem.") at 41.) In Fornaro, plaintiffs dissatisfied with their retirement benefit amounts, brought an APA challenge in district court to how OPM calculated civil service benefits, framing their claims as a system-wide challenge rather than a challenge to individual determinations. Fornaro, 416 F.3d at 64, 67. Fornaro found that the action was foreclosed by the CSRA because the plaintiffs sought a remedy that was closely connected to the relief available only in the administrative process. Id. at 68-69. Since the Fornaro plaintiffs' system-wide challenge would necessarily decide the merits of the plaintiffs' individual benefit claims, the court decided that allowing the challenge would impermissibly create a right to file an action in court where review of benefit determinations was committed solely to the CSRA's administrative process.

While the CSRA may foreclose APA challenges "even where the complaint [does] not concern `a type of personnel action [explicitly] covered by the CSRA[,]'" the CSRA is "a system for review and resolution of federal employment disputes[.]" Filebark v. U.S. Dep't of Transp., 555 F.3d 1009, 1010, 1013 (D.C.Cir.2009) (quoting Graham v. Ashcroft, 358 F.3d 931, 934 (D.C.Cir.2004)). Unlike what plaintiffs claimed in Fornaro, NTEU does not challenge any personnel decisions or benefits determinations made in individual cases, and instead asserts that the OPM's promulgation of the FCIP regulation was arbitrary and an abuse of discretion in violation of 5 U.S.C. § 3302 and § 3304 "because [the regulation was] not based on any showing by OPM that [it was] `necessary' or `warranted by the conditions of good administration.'" (Compl. ¶ 32.) NTEU's requested relief would prohibit further use of the FCIP regulation, but does not seek individual relief for specific employee claims.

The CSRA does not preclude this type of rulemaking challenge under the APA. In NTEU v. Devine (Devine I), 577 F.Supp. 738 (D.D.C.1983), the plaintiff argued that implementation of reduction in force regulations was barred by federal law and should not be implemented. The district court noted that unlike a labor dispute between an employee and an employer, "a traditional rule-making challenge brought under the APA by a party aggrieved by agency action, 5 U.S.C. § 702, alleging that OPM's rules are `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law' under 5 U.S.C. § 706(2)(A)" was a claim over which the court had jurisdiction. Devine I, 577 F.Supp. at 745. On appeal, the court of appeals rejected the defendant's argument that the case could not be brought under the APA because while the CSRA may provide a detailed scheme of administrative protection for certain defined employment rights, it does not necessarily preclude pre-enforcement judicial review of a regulation under the APA. NTEU v. Devine (Devine II), 733 F.2d 114, 117 n. 8 (D.C.Cir.1984). "The APA has often been found to provide jurisdiction for a federal court to hear union challenges to agency regulations or policies of general application on the grounds that they were inconsistent with a statute or the Constitution." NTEU v. Chertoff, 385 F.Supp.2d 1, 23 (D.D.C.2005), partially reversed on other grounds, 452 F.3d 839 (D.C.Cir.2006) (citing NTEU v. Horner, 854 F.2d 490 (D.C.Cir.1988) (reviewing under the APA whether an OPM rule exempting positions from competitive service was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law")). In NTEU v. Cornelius, 617 F.Supp. 365 (D.D.C.1985), the court noted that even though aggrieved federal employees are required to bring cases involving individual rights in accordance with the CSRA, the CSRA does not "insulate OPM from direct judicial review of challenges to rulemaking under the APA" and the court had jurisdiction over an APA challenge to the promulgation of a final rule governing appeal procedures of certain adverse...

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