UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) ASSOCIATION OF ADMINISTRATIVE ) LAW JUDGES, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 07-711 (RMC) ) U.S. OFFICE OF PERSONNEL ) MANAGEMENT, et al., ) ) Defendants. ) )

MEMORANDUM OPINION

Plaintiffs filed a Third Amended Complaint against the U.S. Office of Personnel

Management and its director, John Berry1 (collectively “OPM”). In Count IV, Plaintiffs challenge

as arbitrary and capricious under § 706 of the Administrative Procedure Act (“APA”),

, OPM’s issuance of a Qualification Standard for applicants for positions as administrative

law judges (“ALJs”), OPM’s notice to federal agencies that a vacancy announcement for ALJ

positions would be posted soon, and OPM’s imposition of a numerical cutoff for ALJ applications.2

As explained below, summary judgment will be granted in favor of OPM. Plaintiffs lack standing

to bring their claims challenging the Qualification Standard. Also, OPM’s notice that a vacancy

1 Pursuant to Federal Rule of Civil Procedure 25(d)(1), John Berry is substituted for his predecessor, Linda Springer, Director of OPM. 2 Counts I, II, and III of the Third Amended Complaint challenge a Final Rule,

(b), which requires sitting administrative law judges to maintain in at least one jurisdiction an “active” bar membership. When OPM decided to engage in new rule-making, the Court stayed this case as to Counts I through III. See Minute Order filed July 30, 2008. Thus, the sole count at issue here is Count IV. announcement would be posted soon was not final agency action subject to judicial review. Finally,

the numerical cutoff was not arbitrary and capricious.

I. FACTS

OPM has the authority to regulate the appointment of ALJs, including the authority

to set qualification standards, to establish rules and procedures for hiring through competitive

examination, and to create a register of qualified applicants from which other agencies can make

appointments.

. Formerly, OPM managed the applicant pool for ALJ positions via

ALJ Announcement 318, which set out the qualification standards for ALJs and described various

aspects of the ALJ program including the testing process. OPM promulgated a Final Rule, effective

April 19, 2007, which set out a new Qualification Standard for ALJs. See 72 Fed Reg. 12,947. The

new Qualification Standard describes the ALJ application process as follows: (1) OPM screens

applicants for meeting minimum qualifications; (2) OPM then invites those meeting the minimum

qualifications to take a written exam and undergo an in-person evaluation; (3) OPM assigns each

applicant a composite score and places those who meet or exceed a certain minimum score on a

register (the “new register”) for qualified applicants; and (4) agencies needing ALJs interview

applicants from the new register. The Final Rule removed references to ALJ Announcement 318 and

to the testing process, because, as OPM explained when the Rule was proposed, OPM sought greater

flexibility to amend the process whenever appropriate without new rule-making. Id.; see also

, 75746 (Proposed Rule).

On May 4, 2007, OPM posted an ALJ Vacancy Announcement and Notice of

Examination (“Vacancy Announcement”) on its website to solicit individuals to apply to take the

new ALJ examination so that OPM could create the new register. See Administrative Record

-2- (“AR”)3 at AALJ000005-29. Until OPM created the new register around November 2007, federal

agencies could continue to hire from the old register.

at AALJ000002-3. The Vacancy

Announcement stated that applications would be accepted until the earlier of May 18, 2007, or 11:59

p.m. on the date that OPM received 1250 applications.

at AALJ000005-6. OPM received 1250

applications on May 8, 2007, and closed the Vacancy Announcement at the end of that day.

.

Plaintiffs are the Association of Administrative Law Judges (“AALJ”), seven

administrative law judges, and three private practice attorneys — Mary Rita Luecke, Russell Doty,

and Ned Richardson. The private practice attorneys allege that they did not receive advance notice

of the May 4, 2007 Vacancy Announcement. Third Am. Compl. [Dkt. # 20] ¶¶ 29-34. They assert

that they were qualified to be applicants for the ALJ position, that they were unable to submit an

application, and that if the application period were reopened, they would apply for the position.

They allege that they were not able to apply “due to the early closing of the application submission

period.”

, & 33.

Plaintiffs make four distinct claims, two regarding the Qualification Standard and two

regarding the Vacancy Announcement. First, Plaintiffs allege that the Qualification Standard created

an ad hoc “notice-based” process which replaced the “rule-based” process under ALJ Announcement

318.

. Second, Plaintiffs contend that OPM should have “professionally developed” the

Qualification Standard, as required by

.

. Third, Plaintiffs allege that

OPM gave advance notice to federal agencies that it would be issuing the ALJ Vacancy

3 OPM filed the administrative record on July 16, 2008, and filed supplements on September 5, 20, and October 7, 2008.

-3- Announcement and that such advance notice gave preferential treatment to agency lawyers because

they were able to take leave time from work to undertake the time-consuming application process

whereas private practice attorneys were not.

. Finally, Plaintiffs allege that

the numerical cutoff and the short time frame for acceptance of applications set forth in the Vacancy

Announcement was arbitrary and capricious.

Plaintiffs challenge both the Qualification Standard and the Vacancy Announcement

under § 706 of the APA. Plaintiffs seek an order of the Court: (1) declaring the Vacancy

Announcement void; (2) requiring OPM to undertake notice and comment rule-making for the

purpose of creating a new ALJ vacancy announcement; and (3) enjoining OPM from providing

advance notice to agencies of future ALJ vacancy announcements. OPM moves for summary

judgment, contending that Plaintiffs lack standing to bring certain of their claims and that all of the

claims fail on the merits. Plaintiffs filed a cross motion for summary judgment.

II. STANDARD OF REVIEW

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be

granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Anderson v. Liberty

Lobby, Inc.,

(1986); see also Diamond v. Atwood,

(D.C. Cir.

1995). Moreover, summary judgment is properly granted against a party who “after adequate time

for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of

an element essential to that party’s case, and on which that party will bear the burden of proof at

trial.” Celotex Corp. v. Catrett,

(1986).

-4- In ruling on a motion for summary judgment, the court must draw all justifiable

inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.

Anderson,

. A nonmoving party, however, must establish more than “the mere

existence of a scintilla of evidence” in support of its position.

. In addition, the nonmoving

party may not rely solely on allegations or conclusory statements. Greene v. Dalton,

,

675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would enable a

reasonable jury to find in its favor. Id. at 675. If the evidence “is merely colorable, or is not

significantly probative, summary judgment may be granted.” Anderson,

(citations omitted).

III. ANALYSIS

A. Plaintiffs Lack Standing to Bring Claims Challenging the Qualification Standard

Plaintiffs allege that OPM acted arbitrarily and capriciously by promulgating the new

ALJ Qualification Standard. Prior to the new Qualification Standard, OPM regulations described

the internal examining process and procedures for ALJ selection. OPM removed the detailed

information from the regulation to give itself the flexibility to update the selection process “based

on new technology and advances in the state of the art of examination methodology” without having

to amend its regulations. 72 Fed. Reg. at 12951. Under the new approach, OPM provides to

prospective applicants a qualification standard, listing the desired qualifications for ALJs. Id. at

12951-52.

Plaintiffs contend that the new notice-based process deprives the public of

“transparency” and eliminates vital checks designed to ensure that the system avoids unequal

-5- treatment and to ensure that individuals with superior qualifications are hired. Third Am. Compl.

¶ 96. Also, Plaintiffs allege that OPM failed to “find or make public any factual basis or

professionally validated studies demonstrating that a [n]otice-based process was superior to a rule-

based process” or that a “[n]otice-based process would avoid the unequal treatment” of federal

attorneys and private practice attorneys. Id. ¶¶ 97-98. Plaintiffs also contend that OPM failed to

professionally develop the Qualification Standard. Id. ¶ 99. Plaintiffs, however, have failed to

demonstrate that they have standing to bring these claims because they point to no injury-in-fact

traceable to OPM’s new Qualification Standard.

A plaintiff’s standing under Article III of the United States Constitution must be

determined in order to establish the jurisdiction of a court to hear the case and reach the merits. Steel

Co. v. Citizens for a Better Env’t,

(1998); Grand Council of the Crees v. FERC,

(D.C. Cir. 2000). “Standing focuses on the complaining party to determine

‘whether the litigant is entitled to have the court decide the merits of the dispute or of particular

issues.’” Am. Legal Found. v. FCC,

(D.C. Cir. 1987) (quoting Warth v. Seldin,

(1975)). To have Article III standing, a plaintiff must establish: “(1) [he] has suffered

an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural

or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3)

it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable

decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,

(2000) (citing

Lujan v. Defenders of Wildlife,

(1992)). The injury alleged cannot be

conjectural, hypothetical, remote, speculative or abstract; it must have occurred or be certainly

impending. Nat’l Treasury Employees Union v. United States,

(D.C. Cir.

-6- 1996). “[W]hen the asserted harm is a ‘generalized grievance’ shared in substantially equal measure

by all or a large class of citizens, that harm alone normally does not warrant exercise of jurisdiction.”

Warth,

.

Further, where a plaintiff asserts a procedural right (such as Plaintiffs’ claim here that

the Qualification Standard should have been professionally developed), he must show that he has

suffered a personal and particularized injury — that the procedure endangers one of his concrete

interests. Int’l Brotherhood of Teamsters v. TSA,

(D.C. Cir. 2005).

“[D]eprivation of a procedural right without some concrete interest that is affected by the deprivation

— a procedural right in vacuo — is insufficient to create Article III standing.” Summers v. Earth

Island Inst.,

(2009).

None of the Plaintiffs — the AALJ, the seven administrative law judges, or the three

private practice attorneys — has alleged that it has been injured by the failure to develop the

Qualification Standard professionally or the implementation of the Qualification Standard. Instead,

they speculate that the Qualification Standard in the future will injure the public generally — i.e.,

that the new process will result in unequal treatment and will not result in the appointment of people

with the best qualifications. This type of generalized grievance asserting speculative harm is

insufficient to demonstrate standing. See Lujan,

; Warth,

.

Plaintiffs belatedly attempt to demonstrate standing by alleging in their opposition

brief that they challenge the substance of the Qualification Standard, not just the procedure by which

it was created. Plaintiffs do not identify how the new standards differ from the old standards, or,

most critically, how any change has injured them. Even the three private practice attorneys do not

assert that they were injured due to the new Qualification Standard; they have not been affected by

-7- the new Standard because they have not submitted ALJ applications under the new Standard.

Plaintiffs’ vague and conclusory allegations regarding the substance of the Qualification Standard

are insufficient to overcome a motion for summary judgment. See Greene, 164 F.3d at 675 (in

response to a motion for summary judgment, the nonmoving party may not rely solely on allegations

or conclusory statements). The Court will grant OPM’s motion for summary judgment regarding

Plaintiffs’ claims regarding the Qualification Standard.

B. Notice Regarding Upcoming Vacancy Announcement Did Not Constitute Final Agency Action

Plaintiffs also allege that OPM acted arbitrarily and capriciously by giving advance

notice of the Vacancy Announcement to federal agencies, thereby allowing agency attorneys to

arrange leave time to engage in the time-consuming process of preparing an application. Third Am.

Compl. ¶¶ 102-104; Pls.’ Opp’n [Dkt. # 51] at 12. The three private practice attorneys who are

Plaintiffs in this case allege that while they were qualified to be applicants for the ALJ position, they

did not receive advance notice of the May 4, 2007 Vacancy Announcement, and the position closed

before they were unable to submit an application. Third Am. Compl. ¶¶ 29-34. They specify that

they were not able to apply “due to the early closing of the application submission period,” id. ¶¶ 29,

31, & 33, implying that advance notice to agency attorneys caused those attorneys to submit

applications quickly after the Vacancy Announcement was posted. As a result, Plaintiffs contend,

the limit on the number of applications was reached within three business days — before Plaintiffs

had time to apply.4

4 AALJ and the administrative law judges who are Plaintiffs here do not have standing to bring this claim, as they have not shown any actual injury. The three private practice attorneys who are Plaintiffs do have standing to bring this claim.

-8- On April 23, 2007, OPM sent letters to all applicants on the old ALJ register

explaining that “OPM will soon issue a new ALJ vacancy announcement and will introduce a new

ALJ examination to replace the existing register.” AR at AALJ 0000039. The letter indicated that

applicants who wanted to be considered for ALJ positions “will need to apply for the new

announcement during the open period and successfully complete the new examination.” Id. Then,

on May 1, 2007, OPM Director Springer testified before Congress, stating:

OPM has also now published its new qualification standards for ALJs, and we expect to open the ALJ vacancy announcement on our USAJOBS.gov website within the next few days with the goal of completing our initial review early this month. New ALJ candidates will need to submit their accomplishment records which OPM will review and score, followed by written demonstrations, which are also part of the scoring process.

Id. at AALJ0000037. Also on May 1, 2007, OPM issued a memo to the “Chief Human Capital

Officers” at the federal agencies that employ ALJs, stating that “the new vacancy announcement will

be posted in the next few days on OPM’s USAJOBS website: http://www.usajobs.opm.gov/.” Id.

at AALJ000033. The next day, May 2, 2007, OPM emailed the memo to a distribution list that

included the chief ALJs at each agency or their designees, professional associations, bargaining units

representing ALJs, and various national bar associations. Id. at AALJ0000031-33. Recipients

included Plaintiff AALJ; the Forum of U.S. Administrative Law Judges; the Federal Administrative

Law Judges Conference; the Federal Bar Association; the Hispanic National Bar Association; the

National Asian Pacific American Bar Association; the National Bar Association; the National

Conference of the Administrative Law Judiciary of the American Bar Association; the National

Conference of Women’s Bar Associations; the National Native American Bar Association, and the

following sections of the American Bar Association: the Commission on Mental and Physical

-9- Disability Law, the Judicial Division Standing Committee on Minorities in the Judiciary, the Senior

Lawyers Division, and the Administrative Law and Regulatory Practice Section. Id. at

AALJ0000031.

Director Springer’s testimony and the OPM memo do not constitute final agency

action, a threshold requirement for an APA claim. The APA provides a cause of action to a “person

suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action.”

. Review under the APA is limited to “final agency action” for which there is no other

adequate remedy in a court.

§ 704. An “agency action” is “the whole or a part of an agency rule,

order, license, sanction, relief, or the equivalent or denial thereof.”

(13). A final

agency action “(1) marks the consummation of the agency’s decision making process — it must not

be of a merely tentative or interlocutory nature; and (2) the action must be one by which rights or

obligations have been determined or from which legal consequences will flow.” Domestic Sec., Inc.

v. SEC,

(D.C. Cir. 2003) (internal quotation marks omitted).

“Whether there has been ‘agency action’ or ‘final agency action’ within the meaning

of the APA are threshold questions; if these requirements are not met, the action is not reviewable.”

Fund for Animals, Inc. v. Bureau of Land Mgmt.,

(D.C. Cir. 2006). Not everything

an agency does constitutes final agency action reviewable by the courts. Independent Equip. Dealers

Ass’n v. EPA,

(D.C. Cir. 2004). “Much of what an agency does is in anticipation

of agency action. Agencies prepare proposals, conduct studies, meet with members of Congress and

interested groups, and engage in a wide variety of activities that comprise the common business of

managing government programs.” Fund for Animals, 460 F.2d at 19.

OPM’s notice that it planned to post an ALJ vacancy announcement “within the next

-10- few days” does not constitute final agency action. The notice was not part of a rule, order, sanction

or relief; it did not mark the consummation of a decision-making process; it did not determine the

rights or obligations of any person or entity; and no legal consequences flowed from it. It was an

anticipatory step, indicating OPM’s plans to publish a vacancy announcement, and not the final step

in a decision-making process. Because OPM’s memo to agencies and professional associations was

not final agency action, review is not available under the APA. See Fund for Animals, 460 F.2d at

18. Accordingly, summary judgment will be granted to OPM on Plaintiffs’ advance notice claim.

C. Numerical Cutoff for Applications Was Not Arbitrary and Capricious

Finally, Plaintiffs challenge the time frame and numerical cutoff for acceptance of

applications set forth in the ALJ Vacancy Announcement as arbitrary and capricious under the APA.5

The APA requires a reviewing court to set aside an agency action that is “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.”

(2)(A); Tourus

Records, Inc. v. Drug Enforcement Admin.,

(D.C. Cir. 2001). In making this

inquiry, the reviewing court “must consider whether the [agency’s] decision was based on a

consideration of the relevant factors and whether there has been a clear error of judgment.” Marsh

v. Oregon Natural Res. Council,

(1989) (internal quotation marks omitted). At

a minimum, the agency must have considered relevant data and articulated an explanation

establishing a “rational connection between the facts found and the choice made.” Bowen v. Am.

Hosp. Ass’n,

(1986).

5 This claim is set forth in Plaintiffs’ Opposition to the motion for summary judgment, see Pls.’ Opp’n at 9-11 & 14-15, and is not set forth in the Third Amended Complaint. The Court treats the Opposition as though it included a motion for leave to amend the complaint to add this allegation, and grants the motion. See Fed. R. Civ. P. 15(a) (leave to amend is freely granted when justice so requires).

-11- An agency action may be arbitrary or capricious if:

the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,

(1983). “[T]he scope

of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its

judgment for that of the agency.”

Rather, the agency action under review is “entitled to a

presumption of regularity.” Citizens to Pres. Overton Park, Inc. v. Volpe,

(1971),

abrogated on other grounds by Califano v. Sanders,

(1977).

OPM’s decision to use a numerical cutoff in conjunction with a time limitation for

applications was not arbitrary or capricious. OPM surveyed agencies to determine the anticipated

number of ALJ vacancies over Fiscal Years 2007 through 2009. AR at AALJ000093. OPM found

that the range of anticipated ALJ appointments was between 43 and 343.

at AALJ000068 &

000071-72. OPM then determined that a register of between 500 and 600 qualified candidates was

appropriate.

at AALJ0000205, 000212, & 000215-17. In order to create a register of this size,

OPM decided that the applicant pool should be at least two times the number of qualified candidates

needed, and thus OPM set the applicant pool at the slightly higher number of 1250.

at

AALJ000205, 000212, & 000214-15. OPM projected that it would take twenty-four teams of two

people each three weeks to review and rate 1250 applicants, at a cost of approximately $500,000.

at AALJ 000215 & 000219.

Plaintiffs concede that the usage of the numerical cutoff was reasonable based on the

hiring needs and OPM resources, stating that they do not contend that usage of a numerical cutoff

-12- “was by itself unreasonable.” Pls.’ Opp’n at 14; see also id. at 10. Plaintiffs instead tie their

numerical cutoff claim to their advance notice claim. They contend that “OPM acted arbitrarily and

capriciously in imposing a numerical cut-off in conjunction with providing advance notice to agency

attorneys,” id. at 14, and that “nothing in the record indicates that OPM considered the effect of

imposing a numerical cut-off while also providing agencies advance notice of the opening of the

Vacancy Announcement.” Id. at 15; see also id. at 10.

As explained above, Plaintiffs’ claim regarding the numerical cutoff standing alone

fails because it was not arbitrary and capricious. The numerical cutoff claim as tied to the advance

notice allegation also fails because both the government and the private sector received brief, very

nonspecific “advance” notice. The administrative record indicates that OPM provided nonspecific

notice that a vacancy announcement was imminent. Director Springer’s May 1 announcement to

Congress and OPM’s May 1 memo stated only that OPM would post a vacancy announcement

“within the next few days.” Further, OPM provided this same information by email on May 2 to

numerous professional and bar associations.6 It then posted the vacancy announcement on Friday,

May 4 and closed it on Tuesday, May 8. The one-day difference between generalized notice within

6 Plaintiffs point to extra-record evidence in support of their advance notice claim. As the Court explained in its Order denying Plaintiffs’ motion for discovery, review of claims that an agency acted arbitrarily and capriciously under the APA are usually confined to the administrative record. Order [Dkt. # 49] (Jan. 9, 2009) at 2. Discovery beyond the administrative record is permitted only upon a “strong showing of bad faith or improper behavior or when the record is so bare that it prevents effective judicial review.” Id. (citing Commercial Drapery Contractors, Inc. v. United States,

(D.C. Cir. 1998)). Because Plaintiffs have not demonstrated bad faith or improper motive or that the record is too spare to permit judicial review, review in this case is limited to the administrative record. Moreover, the extra-record evidence of “advance notice” that Plaintiffs rely on is actually after-the-fact notice. See Pls.’ Opp’n [Dkt. # 51] at 6 (noting that on May 4, 2007, Chief Regional ALJ for the Social Security Administration emailed agency attorneys that the ALJ Vacancy Announcement had been posted).

-13- the Government and generalized notice to the private sector does not a federal case make.

Plaintiffs attempt to bolster their claim of advance notice to agency attorneys by

asserting that eighty of the 189 individuals hired by the Social Security Administration (“SSA”) from

the May 2007 register were former SSA attorneys. Information regarding who applied and who was

hired is not relevant, as this information did not exist at the time OPM issued the challenged

Vacancy Announcement and cannot be a basis for finding that OPM acted arbitrarily in issuing the

Vacancy Announcement, giving slight and vague advance notice and setting a numerical cap on the

number of applications to be accepted. The record is limited to the information before the agency

at the time the challenged action was taken. Fl. Power & Light Co. v. Lorion,

(1985).

OPM’s imposition of a numerical cutoff in conjunction with nonspecific notice that

an ALJ vacancy announcement was imminent was not arbitrary and capricious. OPM considered

relevant data regarding the number of applications it needed to create a register of sufficient size to

fill upcoming ALJ positions for Fiscal Years 2007-2009 and articulated an explanation establishing

a rational connection between the facts found and the choice made. See Bowen,

.

Further, the OPM’s nonspecific notice to agencies and numerous professional associations does not

somehow make the numerical cutoff arbitrary. Summary judgment will be granted in favor of OPM.

IV. CONCLUSION

For the reasons explained above, OPM’s motion for summary judgment [Dkt. # 40]

will be granted, and Count IV of the Third Amended Complaint will be dismissed. Plaintiffs’ cross

motion for summary judgment [Dkt. # 52] will be denied. This case remains stayed as to Counts I

through III. A memorializing order accompanies this Memorandum Opinion.

-14- Date: August 10, 2009 /s/ ROSEMARY M. COLLYER United States District Judge

-15-