National Treasury Employees Union v. Horner, Civ. A. No. 84-2573.

Decision Date15 October 1986
Docket NumberCiv. A. No. 84-2573.
PartiesNATIONAL TREASURY EMPLOYEES UNION, et al., Plaintiffs, v. Constance HORNER, Director, Office of Personnel Management, et al., Defendants.
CourtU.S. District Court — District of Columbia

Lois G. Williams, Richard S. Edelman, Washington, D.C., for plaintiffs.

Jeffrey S. Paulsen, Judith Ledbetter, Dept. of Justice, Civil Div., Washington, D.C., for defendants.

OPINION

JOYCE HENS GREEN, District Judge.

This case grows out of the government's efforts to abolish the Professional and Administrative Career Examination ("the PACE"). That examination was challenged in Luevano v. Campbell, 93 F.R.D. 68 (D.D.C.1981), as having a discriminatory impact on black and Hispanic applicants for federal employment. As a result of that litigation, the government entered into a Consent Decree which provided for the discontinuation of the PACE within three years, and for the development of "alternative examining procedures" to govern hiring for the 118 jobs which previously made use of the PACE. Defendant Office of Personnel Management ("OPM") abolished the PACE on August 31, 1982, and announced that it was excepting the 118 jobs covered by the Luevano Consent Decree from the competitive service and placing them in Schedule B, a classification which, unlike the competitive service, permits hiring without requiring applicants to take a competitive examination. Among the positions converted from competitive to non-competitive status was that of customs inspector. Plaintiff National Treasury Employees Union ("NTEU"), which represents customs inspectors along with other federal employees, brought this suit on behalf of itself and four named individuals, all customs inspectors, alleging that OPM's failure to conduct competitive examinations for entry level (General Schedule or "GS" 5 and 7) positions violates civil service statutes requiring competitive hiring, and is arbitrary and capricious, in violation of the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. The parties have filed cross-motions for summary judgment. For the reasons set forth below, the Court directs plaintiff National Treasury Employees Union to file an amended complaint within thirty days from the date of this Opinion, failing which this case will be dismissed for lack of standing.

I.

With the exception of those in the Senior Executive Service, federal civil service employees serve in either the "competitive service," 5 U.S.C. § 2102(a)(1), or the "excepted service," 5 U.S.C. § 2103(a). 5 U.S.C. § 3302(1). Persons seeking employment in the competitive service must take a competitive examination, 5 U.S.C. § 3304, and are then ranked on a civil service register on the basis of their score. 5 C.F.R. § 332.401. When an agency wishes to fill a competitive service position, it must obtain from OPM a "certificate of eligibles," which lists the top three candidates on the appropriate register, id. § 332.402, and must then select an applicant from this list "with sole regard to merit and fitness." Id. § 332.404.

While Congress has stated that the selection and advancement of federal personnel "should be determined solely on the basis of relative ability, knowledge and skills, after fair and open competition," 5 U.S.C. § 2301(b)(1), it has granted the President the authority to make "necessary exceptions" from the competitive service. Persons seeking a position in the excepted service, therefore, need not take a competitive examination. Instead, each agency establishes its own application procedures, and prospective employees file separate applications with each. Pursuant to its statutory authority, OPM has established three classifications of excepted positions, only one of which, Schedule B, is relevant to this case. Schedule B includes "positions other than those of a confidential or policy-determining character for which it is not practicable to hold a competitive examination." 5 C.F.R. § 6.2.

Prior to 1982, the PACE was the competitive examination used to fill entry level positions for some 118 federal jobs. The Luevano Consent Decree called for the elimination of the PACE, and, in addition, prohibited OPM from replacing that examination with another single, comprehensive competitive test. Instead, the Decree provided that within three years of its effective date, "every job category which is currently subject to the PACE requirement shall, when filled by competitive examination, be filled on the basis of an examining procedure which is designed to examine for that particular job." Luevano Consent Decree, § 13(a). It further acknowledged that "some PACE job categories have relatively few vacancies and OPM may develop an alternative examining procedure for a group of such job categories." Id. On August 31, 1982, OPM abolished the PACE and placed the 118 affected jobs in Schedule B. The agency explained that converting the affected positions to excepted service status was appropriate because no alternative selection procedures were available, the number of new hires expected in these positions was low due to restrictions in federal employment, and the cost of developing validated alternative examining procedures would be prohibitive. 47 Fed. Reg. 38,257 (1982). Whenever possible, agencies were expected to fill vacancies either through internal placement, reinstatement of persons with civil service status or priority placement programs. Federal Personnel Management Letter 213-32.

Plaintiffs argue that the conversion of these positions to excepted service status has deprived them of certain privileges and protections they would otherwise enjoy as competitive service employees. They note, for example, that Schedule B employees, unlike their competitive service counterparts, do not have the right to appeal to the Merit Systems Protection Board (or arbitration where appropriate) from an agency decision removing or demoting them for alleged unacceptable performance, nor do they enjoy the procedural rights afforded competitive service employees such as notice and a right to representation in unacceptable performance cases. Schedule B employees compete in different tenure groups from competitive service workers, and thus cannot bump or displace them in the event of a reduction-in-force ("RIF"). Moreover, Schedule B employees may not be promoted or transferred to GS-9 or higher level positions, or to other competitive service positions, without taking an examination, and where such an examination is given, Schedule B employees must compete with outside applicants. Competitive service employees, by contrast, are not required to undergo an examination in order to advance beyond the GS-5 and 7 levels, nor must they compete with outside applicants for career ladder promotions.

Since the abolition of the PACE, OPM has developed only three job-specific competitive tests, including one for the entry level position of customs inspector, which was implemented December 22, 1985. See March 31, 1986 Stipulation of Facts, ¶ 1. The position of GS-5/7 customs inspector has thus been converted to competitive status. Id. All incumbent GS-5/7 customs inspectors with at least six months satisfactory service prior to the date of the conversion are eligible for conversion to competitive service status. Id. at ¶ 2. The four named plaintiffs have all been converted. Id. at ¶¶ 3 and 4.

II.

Defendants contend that plaintiffs lack standing to maintain this action, arguing that the harms alleged are purely speculative or conjectural and that, in any event, the possibility of such harms has been eliminated by the conversion of the entry level customs inspector position to competitive status and the subsequent conversion of the named plaintiffs to such status.

Plaintiffs offer several arguments in response, three of which the Court finds unavailing. First, NTEU argues, albeit without much conviction, that it has standing in its own right because OPM's actions have interfered with its ability to provide services to those union members who are Schedule B employees. The only example of such interference it offers, however, is the possibility that Schedule B employees will be less inclined to join the union because NTEU cannot represent them before the Merit Systems Protection Board or in arbitration in cases of adverse performance appraisals, since excepted service employees lack the right to such protections. This is far too remote or speculative an injury, however, upon which to rest a finding of standing. Cf. National Treasury Employees Union v. Devine, 577 F.Supp. 738 (D.D. C.1983) (regulations interfered with NTEU's ability to negotiate collective bargaining agreements dealing with a variety of important employment issues on behalf of its present members). Second, with respect to the defendants' arguments concerning the conversion of the customs inspectors to competitive service, plaintiff recites the familiar rule that the voluntary cessation of allegedly illegal activity will not moot an action unless it is reasonably likely that the challenged activity will not recur. It would, however, defy reason to accept that OPM, having gone to the expense of validating and implementing a job-specific examination for customs inspectors, will simply abolish that test and return the position to the excepted service if this case is dismissed. Whatever the validity of the agency's decision to place the 118 entry level jobs under Schedule B, that action was taken in response to a specific event — the Luevano Consent Decree. There is no reason to believe that OPM will make a practice of such drastic measures, and indeed, the requirements of the Decree make it very unlikely that it would do so.

Finally, plaintiffs argue that the converted customs inspectors have sustained injury despite their conversion, because they did not receive their promotions to the GS-9 level as promptly as they would have had they been competitive service...

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3 cases
  • National Treasury Employees Union v. Horner
    • United States
    • U.S. District Court — District of Columbia
    • February 27, 1987
    ...the competitive service the 118 federal jobs formerly governed by that examination. In an earlier decision, National Treasury Employees Union v. Horner, 659 F.Supp. 8 (D.D.C.1986) (the "October 15, 1986 Opinion"), this court addressed defendants' contention that plaintiffs lacked standing t......
  • American Postal Workers Union v. US Postal Serv., Civ. A. No. 87-3199.
    • United States
    • U.S. District Court — District of Columbia
    • December 20, 1988
    ...loss of "employment opportunity," though no loss of present jobs shown, sufficient to confer standing); National Treasury Employees Union v. Horner, 659 F.Supp. 8, 12 (D.D.C. 1986) (union had standing where agency action would permit outside competition with However, the Court disagrees wit......
  • National Treasury Employees Union v. Horner
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • August 19, 1988
    ...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......

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