National Treasury Employees Union v. Horner
| Decision Date | 19 August 1988 |
| Docket Number | Nos. 87-5102,87-5191,s. 87-5102 |
| Citation | 272 U.S.App.D.C. 81,854 F.2d 490 |
| Parties | NATIONAL TREASURY EMPLOYEES UNION, et al. v. Constance HORNER, Director, Office of Personnel Management, et al., Appellants. NATIONAL TREASURY EMPLOYEES UNION, et al., Appellants, v. Constance HORNER, Director, Office of Personnel Management, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia (Civil Action No. 84-02573).
John C. Hoyle, Attorney, Dept. of Justice, with whom, Richard K. Willard, Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., and William Kanter, Attorney, Dept. of Justice, Washington, D.C., were on the brief, for appellants/cross-appellees.
Clinton D. Wolcott, with whom Lois G. Williams, Washington, D.C., was on the brief, for appellees/cross-appellants.
Before WALD, Chief Judge, and EDWARDS and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge D.H. GINSBURG.
The district court held that the Office of Personnel Management (OPM) acted arbitrarily and capriciously when, by rulemaking, it excepted a number of government jobs from the competitive civil service. The court ordered the agency to develop competitive examinations for those positions, and to return them to the competitive service, within six months. OPM appeals, claiming that its decision to except the positions was committed to its discretion by law, and is therefore not subject to judicial review. Alternatively, it argues that even if its decision in this case is reviewable, the district court erred in finding it arbitrary and capricious.
We affirm the district court's determination that OPM's action in this case is subject to judicial review. Because OPM has presented no data to support its rationale for excepting the positions, we also affirm the district court's finding that the decision was arbitrary and capricious; however, we remand the matter to the district court, with instructions that OPM be permitted to reopen the rulemaking proceeding, for a limited time, in order to marshal data to support its decision.
Federal civil service employees, other than those in the Senior Executive Service, are employed in either the "competitive service," 5 U.S.C. Sec. 2102(a)(1) (1982), or the "excepted service." Id. at Sec. 2103(a). Applicants for employment in the competitive service must generally take a "competitive examination," which OPM administers. The applicants are then ranked on the appropriate civil service register on the basis of their examination scores. When an agency needs to fill a competitive service position, it must select from among the top three applicants on the register corresponding to that position. 5 C.F.R. Sec. 332.404 (1988).
When warranted by "conditions of good administration," the President is authorized by statute to specify "necessary exceptions of positions from the competitive service." 5 U.S.C. Sec. 3302(1). The President has in turn delegated to OPM authority to "except positions from the competitive service when it determines that appointments thereto through competitive examination are not practicable." Exec. Order No. 10,577, 5 C.F.R. Sec. 6.1(a) (1988), reprinted in 5 U.S.C.A. Sec. 3301 note at 192 (Supp.1988). Applicants for such excepted service positions, like applicants for the competitive service, are to be selected "solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity," 5 U.S.C. Sec. 2301(b)(1), but they are obviously not required to take a competitive examination. Rather, a variety of more flexible and informal procedures--some established by OPM and others developed by individual agencies--are used to recruit and select new employees into the excepted service.
From 1974 to 1982, the federal government used the Professional and Administrative Career Examination (PACE) to fill 118 different entry level jobs, known as Professional-Administrative Career (PAC) positions, in the competitive service. In 1979, a suit was filed challenging the PACE on the ground that it had a discriminatory impact on black and Hispanic applicants for federal employment. See Luevano v. Campbell, 93 F.R.D. 68 (D.D.C.1981). That litigation was settled in early 1982 by a consent decree providing that the government would phase out the PACE over no more than a three-year period.
In May of 1982, however, less than six months after the entry of the consent decree, OPM proposed, in an informal rulemaking proceeding, to drop the PACE forthwith, and to except the PAC jobs from the competitive service. 47 Fed.Reg. 20,264 (May 11, 1982). Specifically, the jobs would be placed in the excepted service on Schedule B, which includes "[p]ositions other than those of a confidential or policy-determining character for which it is not practical to hold a competitive examination." 5 C.F.R. Sec. 6.2 (1988). In the notice adopting the proposal as a final rule, OPM stated Excepting these positions from the competitive service and placing them in Schedule B is appropriate because (1) there are no alternative written tests and other merit selection procedures, other than PACE, currently available, (2) restrictions in Federal employment will result in substantially reduced external hires in many former PACE occupations, and (3) the cost of developing validated competitive examinations consistent with the consent decree would be prohibitive, especially for the occupations where relatively few hires are expected.
47 Fed.Reg. 38,257 (Aug. 31, 1982). OPM also noted that converting the positions from competitive to excepted status was "intended and expected to enhance Federal employment opportunities for individuals who belong to minority groups." Id. at 38,258.
Since use of the PACE was discontinued, the vast majority of PAC vacancies have been filled through promotions, reassignments, and transfers; such internal placements were not subject to examination before, and were thus not affected by, the change in hiring procedures. Moreover, OPM has developed job-specific competitive examinations for 16 of the PAC jobs in which the largest number of entry-level employees are hired. Consequently, more than half of such external hiring as is done to fill PAC jobs is still done pursuant to a competitive examination. There are, however, a substantial number of new PAC employees who are hired into the excepted, rather than the competitive, service solely as a result of the 1982 rulemaking.
In 1984, NTEU and four named customs inspectors filed this suit, claiming that the conversion of PAC positions from competitive to Schedule B status violated civil service statutes requiring competitive hiring, and was arbitrary and capricious in violation of the Administrative Procedure Act (APA). Plaintiffs argued that, although Schedule B employees receive the same salaries and benefits as their counterparts in the competitive service, excepted service employees are disadvantaged in three specific ways: (1) they do not have the right to appeal adverse employment decisions to the Merit Systems Protection Board (MSPB); (2) when applying for competitive service positions, they get no preference for their time in the government's employ, but must compete on equal footing with members of the general public; 1 and (3) they have different tenure rights in the event of a Reduction-in-Force (RIF). 2
In October, 1986, the district court held that plaintiffs did not have standing to bring this suit, noting that NTEU lacked standing to sue in its own right, and that because a competitive examination had recently been developed for customs inspectors, the named plaintiffs had already been converted to the competitive service. Nevertheless, the court allowed NTEU to file an amended complaint, naming as plaintiffs two Food Program Specialists employed by the Food and Nutrition Service of the Department of Agriculture in positions that had been excepted from the competitive service by the rule under challenge. 659 F.Supp. 8.
The parties then filed cross-motions for summary judgment, and the district court gave judgment for the plaintiffs. In its opinion, the court first rejected OPM's claim that its decision to except the various positions from the competitive service was not subject to judicial review. Citing Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), the court noted that the exception from judicial review for agency action "committed to agency discretion" is very narrow; furthermore, it said, the structure and purpose of the civil service statutes indicate that "Congress intended appointment to the civil service through competitive examination to be the norm, and that placement of positions in the excepted service is ... to be undertaken only upon a finding of necessity." "Viewed against this backdrop," which it canvassed in some detail, the court concluded that "OPM's discretion to except positions [from the competitive service] is not so broad as to render its exercise unreviewable." 654 F.Supp. 1159.
The district court then addressed the claim that OPM's decision was arbitrary and capricious:
At bottom, the underlying justification for [OPM's] decision to except the jobs in question from the competitive service is cost. The expense of developing and validating alternatives to the PACE, [OPM claims], was prohibitive and unwarranted in view of the reduction in hiring [it] anticipated ... [but OPM] offered nothing in the way of concrete proof ... in support of that claim, either at the time of the decision or during this litigation. Indeed ... [OPM has come] forward with no figures indicating what the cost of alternative tests would be, nor any other evidence demonstrating that [it] undertook any sort of cost-benefit analysis.
Accordingly, the...
To continue reading
Request your trial
-
Capital Area Immigrants v. U.S. Dept. of Justice
...has observed that "`[s]tating that a factor was considered ... is not a substitute for considering it.'" Nat'l Treasury Employees Union v. Horner, 854 F.2d 490, 499 (D.C.Cir.1988) (quoting Getty v. Fed. Savs. & Loan Ins. Corp., 805 F.2d 1050, 1055 (D.C.Cir.1986)). The Department determined ......
-
DR PEPPER/SEVEN-UP COMPANIES, INC. v. FTC, Civ. A. No. 91-2712 (GHR).
...decision was reasoned and that the facts on which the Commission relied "have some basis in the record." National Treasury Employees Union v. Horner, 854 F.2d 490, 498 (D.C.Cir.1988); see also Hospital Corp. of America v. F.T.C., 807 F.2d 1381, 1385 (7th Cir.1986) (applying same degree of d......
-
Ctr. for Biological Diversity v. Envtl. Prot. Agency
...Cir. July 28, 2022) (per curiam order dismissing case).Confronted with another "unusual situation" in National Treasury Employees Union v. Horner , 854 F.2d 490 (D.C. Cir. 1988), we deemed more typical relief neither satisfactory nor practicable, so we remanded for the parties to consult on......
-
Simpkins v. Shalala
...making, whether it considered the relevant factors, and whether the facts have some basis in the record. National Treasury Employees Union v. Horner, 854 F.2d 490, 498 (D.C.Cir. 1988). Applying these principles of law to the present dispute, this court must consider plaintiff's claim that H......
-
Disparate Limbo: How Administrative Law Erased Antidiscrimination.
...by way of rulemaking that it would "not take enforcement actions in a whole class of cases"); Nat'l Treasury Emps. Union v. Horner, 854 F.2d 490, 496 (D.C. Cir. 1988) (noting that rulemaking under the APA "provides a focal point for judicial review--quite unlike the internal agency decision......