UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ ) NAT’L TREASURY EMPLOYEES ) UNION, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-168 (RWR) ) KATHIE ANN WHIPPLE, ) ) Defendant, ) ______________________________)

MEMORANDUM OPINION AND ORDER

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

1 Kathie Ann Whipple, Acting Director, is substituted for Linda Springer under Fed. R. Civ. P. 25(d). - 2 -

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

BACKGROUND

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

.

However, § 3302 provides “as nearly as conditions of good

administration warrant, for . . . necessary exceptions of

positions from the competitive service.”

. (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

(o) (2006). The regulation allowed agencies

2 NTEU’s motion requesting an oral argument on the pending motions will be denied as moot. - 3 -

“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

3 The USAJOBS website, coordinated by OPM, provides current information to the public on federal government employment opportunities. See USAJOBS, The Federal Government’s Official Jobs Site, http://www.usajobs.gov (last visited July 13, 2009). - 4 -

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.

DISCUSSION

I. JURISDICTION

“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,

(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.,

(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,

(D.D.C. 2007) (quoting

Erby v. United States,

(D.D.C. 2006). - 5 -

See also Nat’l Ass’n of Home Builders v. U.S. Army Corps of

Eng’rs,

(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,

(1988). The Director relies

on Fornaro v. James,

(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,

. 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.

.

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 - 6 -

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.,

(D.C. Cir. 2009) (quoting Graham v. Ashcroft,

(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

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),

(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 - 7 -

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,

, alleging that

OPM’s rules are ‘arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law’ under

(2)(A)” was a claim over which the court had jurisdiction.

Devine I,

. 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),

, 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,

(D.D.C. 2005), partially reversed

on other grounds,

(D.C. Cir. 2006) (citing NTEU v.

Horner,

(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,

(D.D.C. 1985), the court noted that even though - 8 -

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 employment actions.

(emphasis in original). Likewise, in OCONUS DOD

Employee Rotation Action Group v. Cohen,

(D.D.C. 2000), the court relied on Devine II to determine that

the plaintiffs’ claim that a policy violated CSRA principles and

federal statutes, was arbitrary and capricious, and lacked a

rational policy basis, was justiciable under the APA and not

precluded by the CSRA.

The Director asserts that Devine II contradicts the Supreme

Court’s decision in Fausto. In Fausto, the plaintiff brought a

suit for backpay in the U.S. Claims Court arguing that his

suspension violated agency regulations.

. Fausto

concluded that the “CSRA established a comprehensive system for

reviewing personnel action taken against federal employees” and

that the CSRA’s deliberate exclusion of an excepted service

employee from the provisions that establish administrative or

judicial review barred the plaintiff from seeking review in the

Claims Court.

. Fausto noted the importance of

channeling to the MSPB an individual’s challenge to a personnel - 9 -

action and that the CSRA gave access to administrative and

judicial remedies for only certain employees. However, Fausto

did not involve judicial review of an agency regulation, which is

at issue here. While the CSRA bars challenges that seek review

of individual personnel decisions, Fausto does not expressly

preclude NTEU from challenging the validity of OPM’s promulgation

of the FCIP regulation.

The Director argues that because NTEU is alleging a

violation of the merit systems principles, that it is not

bringing an APA challenge. However, the complaint alleges that

OPM’s decision to promulgate the FCIP regulation was “arbitrary,

capricious, an abuse of discretion and otherwise not in

accordance with law within the meaning of the Administrative

Procedure Act” because OPM failed to show a proper basis as is

required by

. (Compl. ¶ 32.) Section 3302

provides authority to exempt when necessary certain positions

from the competitive service process that is required under

.

, 3304. NTEU’s claim is that OPM

failed to make any showing that the FCIP was “necessary” or

“warranted by conditions of good administration” before issuing a

final regulation. (Compl. ¶ 32.)

The Director also argues that because NTEU asserts that the

FCIP violates “statutory merit systems principles[,]” NTEU should

seek review with the Office of Special Counsel under 5 U.S.C. - 10 -

§ 1214. (Def.’s Mem. at 39, 40 n.19.) Under the CSRA, the

Office of Special Counsel addresses employee complaints regarding

prohibited personnel actions, and judicial review under the APA

is precluded.4

; see also Carson v. U.S. Office

of Special Counsel,

(D.D.C. 2008)

(noting that § 1214 directs employees to file a complaint with

the Office of Special Counsel if they have been subject to

prohibited personnel practices). However, although the complaint

involves the FCIP and appointment procedures, the complaint does

not seek to address adverse personnel actions regarding specific

employees. Instead, the complaint brings an APA claim

challenging the validity of the regulation that created the FCIP,

4 Personnel actions means:

(i) an appointment; (ii) a promotion; (iii) an action under chapter 75 of this title or other disciplinary or corrective action; (iv) a detail, transfer, or reassignment; (v) a reinstatement; (vi) a restoration; (vii) a reemployment; (viii) a performance evaluation under chapter 43 of this title; (ix) a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subparagraph; (x) a decision to order psychiatric testing or examination; and (xi) any other significant change in duties, responsibilities, or working conditions; with respect to an employee in, or applicant for, a covered position in an agency, and in the case of an alleged prohibited personnel practice described in subsection (b)(8), an employee or applicant for employment in a Government corporation as defined in section 9101 of title 31[.]

. - 11 -

a type of claim which has been distinguished from one that is

precluded by the CSRA. See NTEU v. Egger,

(D.C. Cir. 1986) (describing the challenge to reclassifying

positions to a different pay category as one “merely . . . to the

application of an existing rule and thus within the CSRA scheme

of review[,]” and contrasting it with Devine II, which

“involve[d] the validity of a general rule or a rulemaking

subject to judicial review”).5 NTEU’s claim is not foreclosed by

the CSRA and § 1214.

B. Associational standing

An organization may sue on behalf of its members if it

demonstrates “that at least one member would have standing under

5 The Director also relies on NTEU v. U.S. Merit Systems Protection Board,

(D.C. Cir. 1984), to support the proposition that NTEU must bring its claim to the MSPB under

(f). (Reply Mem. in Support of Mot. to Dismiss (“Def.’s Reply”) at 23 (noting that § 1204(f) was previously codified at § 1205(e).) Section 1204 allows review of a rule or regulation issued by OPM “on the granting by the Board, in its sole discretion, of any petition for such review filed with the Board by any interested person, after consideration of the petition by the Board[.]”

(f). U.S. Merit Systems Protection Board involved a different issue -- whether the court had jurisdiction to review an MSPB decision -- in a prior statutory scheme and did not address whether a rulemaking challenge under the APA must be brought before the MSPB. U.S. Merit Systems Protection Board concluded that despite some potential for duplication of judicial efforts, the court of appeals had jurisdiction to review all final MSPB orders while “[o]ther challenges to a particular rule or regulation, including whether its issuance observed legally required procedures or was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’ would still have to be brought in the district courts.”

. - 12 -

Article III to sue in his or her own right, that the interests it

seeks to protect are germane to its purposes, and that neither

the claim asserted nor the relief requested requires that an

individual member participate in the lawsuit.”6 Natural Res.

Def. Council v. E.P.A.,

(D.C. Cir. 2007)

(citing Hunt v. Washington State Apple Adver. Comm’n,

(1977); Sierra Club v. E.P.A.,

(D.C. Cir. 2002)).

1. Member standing

In order to establish standing, NTEU must allege “a personal

injury-in-fact[,] that is . . . fairly traceable to the

defendant’s conduct[,] and [is] redressable by the relief

requested.” Int’l Bhd. of Teamsters v. Transp. Sec. Admin.,

(D.C. Cir. 2005) (internal quotation marks

omitted). Specifically, Article III standing “requires (1)

injury in fact which is (a) concrete and particularized and (b)

actual or imminent, not conjectural or hypothetical[,] . . . (2)

a causal connection between the injury and the conduct complained

of[,]” Wright v. Foreign Serv. Grievance Bd.,

(D.D.C. 2007) (quoting Lujan v. Defenders of Wildlife,

(1992)) (internal quotation marks omitted), and

(3) a likelihood, as opposed to merely speculation, “that the

6 The Director does not contest that the interests NTEU seeks to protect are germane to its purposes. - 13 -

injury will be redressed by a favorable decision.” Lujan,

(internal quotation marks omitted).

NTEU alleges that interns are injured because they are

unable to compete for a competitive position and are required to

be on probation for at least two years. The Director first

argues that the NTEU-represented interns do not allege a “net”

injury because the two-year probation period gives interns more

time to evaluate whether their positions are a good fit for them

and to prove their worth to their employers. (Def.’s Mem. at

20.) Drawing all inferences at the pleading stage in favor of

NTEU, while the employees may have received some benefit from

being exempted hires, they were also prevented from applying for

the same position with allegedly superior benefits. See NTEU v.

Seidman,

(D.D.C. 1992) (stating that

although the plaintiffs may have received some benefits, the

“denial of an opportunity to apply for a position in the

competitive service with its superior job status” could

constitute an injury). NTEU has sufficiently pled an injury in

fact.

The Director also argues that because the one-year delay in

the right to appeal a termination to the MSPB applies only to

interns in their second year, NTEU has not identified any member

who has been or will be harmed. In its opposition, NTEU provided

affidavits discussing one member in detail who was hired under - 14 -

the FCIP regulation and was terminated during his second year

(Pl.’s Opp’n, Ex. 6 at 2-3), and noting that several additional

employees worked in FCIP positions for more than twelve months,

but were terminated prior to twenty-four months of service.

(Id., Ex. 5 at 3.) These allegations are sufficient to establish

an injury by at least one NTEU member.

The Director also asserts that the claim is not traceable to

OPM conduct because “but for the FCIP, the employees would have

accrued MSPB appeal rights on the quicker schedule afforded to

new competitive service hires – which, in turn, has to be

predicated on an assumption that they would have been hired into

the competitive service, not merely that they would have had a

‘chance to apply’ for such positions.” (Def.’s Reply at 8 n.10.)

Traceability examines whether there is a “‘causal connection

between the claimed injury and the challenged conduct[,]’” that

is, whether the “‘asserted injury was the consequence of the

defendant’s actions.’” Winpisinger v. Watson,

(D.C. Cir. 1980) (quoting Duke Power Co. v. Carolina Envtl. Study

Group, Inc.,

(1978); Warth v. Seldin,

(1975)); see also N.C. Fisheries Ass’n, Inc. v.

Gutierrez,

(D.D.C. 2007) (stating that the

inquiry is whether the “challenged action of the defendant [is]

what caused the injury alleged”). Causation does not require

that the “challenged action must be the ‘sole’ or ‘proximate’ - 15 -

cause of the harm suffered, or even that the action must

constitute a ‘but-for cause’ of the injury. . . . At its core,

the causation inquiry asks whether ‘the agency’s actions

materially increase[d] the probability of injury.’” N.C.

Fisheries Ass’n, Inc.,

(brackets in

original) (quoting Huddy v. F.C.C.,

(D.C. Cir.

2001)). However, there is no standing “where the court ‘would

have to accept a number of very speculative inferences and

assumptions in any endeavor to connect the alleged injury with

[the challenged conduct].’” Autozone Dev. Corp. v. District of

Columbia,

(D.D.C. 2007) (brackets in

original) (quoting Winpisinger,

). NTEU alleges

that OPM’s promulgation of the FCIP regulation caused injuries to

interns who must wait longer before having the right to appeal

personnel actions to the MSPB and who could not compete for

competitive service positions. The facts alleged support a

causal link between the injury and the challenged conduct that is

not speculative and is fairly traceable to the Director’s

actions.

The Director also alleges that NTEU has not shown

redressability. She reasons that invalidating the FCIP would

cause the current interns to lose their positions, and that the

court cannot simply order that current intern positions be

changed to competitive service positions because it is uncertain - 16 -

whether the interns would be hired into competitive service

positions absent the FCIP. In NTEU v. Horner,

(D.C.

Cir. 1988), the court noted that “[a]lthough OPM has authority,

under certain limited circumstances, to make appointments to the

competitive service without using a competitive examination[,]

. . . a court-ordered return to the competitive service, without

competitive examinations, would clearly be inappropriate[.]” 854

F.2d at 499 (stating that “[i]t would therefore be anomalous for

us to order that these positions be restored to the competitive

service when no acceptable competitive examination is

available”). Unlike in Horner, though, competitive examinations

exist for the positions at issue here and the FCIP regulation

already allows for interns to be converted to competitive service

at the end of their internship. Moreover, one court has rejected

the notion that if a court were to order a competitive

examination, current excepted employees would have to lose their

jobs because this argument “fails to take into account the

equitable powers of the Court which could allow it to craft an

order that would not adversely affect those employees who,

through no fault of their own, might be deemed to have been

improperly hired into the excepted service.” Seidman,

; see also Allen v. Heckler,

(D.C.

Cir. 1985) (stating that the district court should fashion a

remedy that would allow exempted employees to obtain the benefits - 17 -

of competitive positions while taking into consideration the need

for flexible job tenure guidelines).

Thus, NTEU has established that at least one of its members

has standing.

2. Individual member participation

The Director argues that adjudication of this case requires

individual member participation in part because there are

conflicts between NTEU’s positions in representing different

members. However, conflicts of interest among members do not

necessarily deprive the organization of associational standing

even if the remedies sought may harm some members.7 La. Envtl.

Action Network v. E.P.A.,

, 68-69 (D.C. Cir. 1999);

Nat’l Lime Ass’n v. E.P.A.,

(D.C. Cir. 2000)

(stating that the plaintiff is “entitled to be an advocate for a

subgroup of cement manufacturers whose interests diverge from

those of the run of cement producers[]”); Nat’l Mar. Union of

Am. v. Commander, Military Sealift Command,

, 1233-

34 (D.C. Cir. 1987) (noting that courts generally defer to an

7 The Director relies on Kickapoo Tribe of Oklahoma v. Lujan,

(D.D.C. 1990), for support. However, in Kickapoo, the court found that there was concrete evidence of a conflict between the Kickapoo Tribe and members of the Texas Band, whose interests Kickapoo sought to represent.

(noting that a “vast majority” of the Texas Band members voted to ratify the new constitution which would separate the Texas Band from the Kickapoo Tribe). The Director speculates as to the conflicts between NTEU members, but presents no evidence that members actually object to NTEU’s representation. - 18 -

association’s resolution of any internal conflicts among members

unless there is a showing that the organization’s own procedures

have been violated, and deciding that “the mere fact of

conflicting interests among members of an association does not of

itself defeat the association’s standing to urge the interests of

some members in litigation, even though success may harm the

legal interests of other members”).

Otherwise, the Director’s argument that individual members

must participate does not suggest how the claim asserted or the

requested relief require such involvement. NTEU’s claim asserts

that because OPM failed to show that the FCIP was necessary or

warranted by conditions of good administration, OPM’s

promulgation of the regulation was arbitrary and has injured

NTEU members. This type of claim does not involve individualized

inquiries. See Hotel & Rest. Employees Union, Local 25 v. Smith,

(D.C. Cir. 1988) (stating that “[s]ince the

union does not challenge the disposition of any particular asylum

request, judicial redress of the defective INS practices requires

jurisdiction over no particular . . . alien”); Ass’n of Cmty.

Orgs. for Reform Now v. FEMA,

(D.D.C.

2006) (noting that the requested declaratory and injunctive

relief were not the types of remedies that require member

participation because “‘individual participation is not normally

necessary when an association seeks prospective or injunctive - 19 -

relief for its members’ . . . [and] this suit raise[d] questions

regarding the constitutionality of FEMA’s notice procedures, not

‘the eligibility of individual . . . claimants’” (quoting United

Food & Commercial Workers v. Brown Group,

(1996); Int’l Union, United Auto., Aerospace & Agric. Implement

Workers of Am. v. Brock,

(1986))). Cf. Harris

v. McRae,

(1980) (stating that “[s]ince ‘it is

necessary in a free exercise case for one to show the coercive

effect of the enactment as it operates against him in the

practice of his religion,’ . . . the claim asserted here is one

that ordinarily requires individual participation” (quoting

Abington Sch. Dist. v. Schempp,

(1963)); NTEU

v. U.S. Dep’t of Treasury, Civil Action No. 92-1150 (HHG),

, at *5 (D.D.C. Feb. 12, 1993) (noting that the

constitutionality of the government’s attempt to question

employees on various aspects of their personal lives would depend

on the specific question and the employee’s position and thus

individual member participation was required).

Moreover, NTEU seeks declaratory and injunctive relief,

which does not require individual participation. Nat’l Coal.

Against Misuse of Pesticides v. Espy, Civil Action No. 92-975

(SSH),

, at *1 n.2 (D.D.C. Mar. 16, 1993) (stating

that because plaintiffs seek equitable relief, individual

participation is not required); Seidman,

- 20 -

(finding that in an APA challenge to an OPM regulation, because

the “plaintiffs limit their requests to injunctive and

declaratory relief, . . . no individual participation is required

as would be the case if the Court needed to measure specific

individual damages”). Cf. Am. Fed’n of Gov’t Employees v.

Hawley,

(D.D.C. 2008) (stating that in a

Privacy Act case, the sole remedy is actual damages and

individual member participation is required to prove their

individual damages); Office & Prof’l Employees Int’l Union Local

2, AFL-CIO v. F.D.I.C.,

(D.D.C. 1991) (noting

that “‘claims for monetary relief necessarily involve

individualized proof and thus the individual participation of

association members’”) (quoting United Union Roofers v. Ins.

Corp. of Am.,

, 1400 (9th Cir. 1990)). Individual

member participation, then, is not required here.

II. ADEQUACY OF PLED CLAIM

In a motion to dismiss for failure to state a claim under

Rule 12(b)(6), the complaint must be construed in the light most

favorable to the plaintiff and “the court must assume the truth

of all well-pleaded allegations.” Warren v. District of

Columbia,

(D.C. Cir. 2004). “However, the court

need not accept inferences drawn by plaintiffs if such inferences

are unsupported by the facts set out in the complaint. Nor must

the court accept legal conclusions cast in the form of factual - 21 -

allegations.” Kowal v. MCI Commc’ns Corp.,

(D.C. Cir. 1994). A plaintiff does not need to plead detailed

factual allegations, Aktieselskabet AF 21. Nov. 2001 v. Fame

Jeans Inc.,

(D.C. Cir. 2008), but enough facts

must be pled to “state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly,

(2007)

(noting that the facts alleged in the complaint must “raise a

right to relief above the speculative level” and that “more than

labels and conclusions” must be provided). At the pleading stage

there is no probability requirement, but “something beyond . . .

mere possibility . . . must be alleged.”

.

A. Laches

The Director argues that NTEU’s claims are barred by the

doctrine of laches. In order for laches to bar a claim, a

defendant “must show that the plaintiff has unreasonably delayed

in asserting a claim and that there was ‘undue prejudice’ to the

defendant as a result of the delay.” Jeanblanc v. Oliver Carr

Co., No. 94-7118,

, at *4 (D.C. Cir. June 21,

1995); see also Pro-Football, Inc. v. Harjo,

(D.C. Cir. 2005) (stating that assertion of laches as a defense

“requires proof of (1) lack of diligence by the party against

whom the defense is asserted, and (2) prejudice to the party

asserting the defense” (internal quotation marks omitted)); Major

v. Plumbers Local Union No. 5 of United Ass’n of Journeymen & - 22 -

Apprentices of the Plumbing & Pipefitting Indus. of the U.S. &

Canada,

(D.D.C. 2005) (stating that the

circumstances of any delay or prejudice is a factual inquiry).

“If only a short period of time elapses between accrual of the

claim and suit, the magnitude of prejudice required before suit

would be barred is great; if the delay is lengthy, a lesser

showing of prejudice is required.” Gull Airborne Instruments,

Inc. v. Weinberger,

(D.C. Cir. 1982). The

Director claims that the “pertinent facts establishing the laches

defense plainly appear on the face of the complaint.” (Def.’s

Reply at 5.) Because the complaint alleges the FCIP was created

in 2000 and NTEU did not file suit until January of 2007, the

Director argues that this constitutes an unreasonable delay and

prejudice. NTEU argues that it was unaware of the FCIP’s

application to its members and that the interim regulation,

created in 2000, did not become final until August 2005.

For NTEU’s claim under the APA, “[t]he right of action first

accrues on the date of the final agency action.” Harris v.

F.A.A.,

(D.C. Cir. 2004); see also West

Virginia Highlands Conservancy v. Johnson,

(noting that a six-year statute of limitations,

(a), applies to APA claims brought under

).

In order to be considered final, “the action must mark the

‘consummation’ of the agency’s decisionmaking process . . .. - 23 -

[I]t must not be of a merely tentative or interlocutory nature[,]

[a]nd . . . the action must be one by which ‘rights or

obligations have been determined,’ or from which ‘legal

consequences will flow[.]’” Harris,

(quoting

Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp.,

(1948); Port of Boston Marine Terminal Ass’n v.

Rederiaktiebolaget Transatlantic,

(1970)).

“While it is true that publication in the C.F.R., the fact that

the agency continues to take comments on the policy, and the

agency’s own characterization of the policy are all important

factors for the court to consider in determining whether an

agency has consummated the rule-making process and taken steps

that alter or fix legal rights and obligations, none of these

factors is dispositive.” Am. Farm Bureau v. U.S. E.P.A.,

(D.D.C. 2000). NTEU may have been able to

challenge the interim regulation, but the Director does not seek

to dismiss NTEU’s claim based on the statute of limitations, and

NTEU’s challenge to the final regulation implementing the FCIP

was filed within six years of the final rule’s promulgation. It

is not necessarily unreasonable for NTEU to challenge the final

regulation even though the interim regulation existed. In

Beverly Enter., Inc. v. Herman,

(D.D.C.

1999), the court concluded that the plaintiff’s pre-enforcement

challenge to the final rule was timely under the statute of - 24 -

limitations even though the challenge to the interim rule was

untimely, because while the plaintiff may have had some idea of

what the final rule would encompass based on the interim rule,

the agency could have changed the final rule based on comments

received.

“[L]aches is not like [a statute of limitations], a mere

matter of time; but principally a question of the inequity of

permitting the claims to be enforced.” Jeanblanc v. Oliver Carr

Co., Civil Action No. 91-0128 (JHG),

, at *3

(D.D.C. Nov. 1, 1991) (internal quotation marks omitted). NTEU

alleged that the FCIP originally “[gave] the appearance of being

a limited, special focus hiring program” which was “purportedly

intended to . . . target recruitment of ‘exceptional men and

women’ for the Federal workforce[,]” but over time, became “the

hiring method of choice for many federal jobs, . . .

threaten[ing] to supplant the competitive examination process as

the primary means of entry into the competitive service.”

(Compl. at 2.) NTEU’s characterization of the facts, if assumed

to be true at this early stage in the litigation, do not support

a conclusion that NTEU unreasonably delayed in pursuing its

claims against OPM over the final FCIP regulation. See In re

Bell v. Rotwein,

(D.D.C. 2008)

(noting that at the motion to dismiss stage, the court assumed

that the plaintiff’s characterization of the agreement was true - 25 -

and concluded that the plaintiff did not unreasonably delay in

bringing suit because the cause of action had not yet accrued).

Regarding the second prong of the laches test, the Director

asserts that this action will cause undue prejudice because

federal agencies have structured their recruiting strategies

based on the FCIP. While NTEU offers little rebuttal to the

Director’s claims of prejudice, the Director does not offer

specific evidence to support its claim of undue prejudice. See

generally Major,

(stating that

determination of prejudice is a factual inquiry and that it would

be premature to resolve the application of laches when the

inquiry requires facts not in the pleadings). Even if there were

undue prejudice, laches does not bar NTEU’s claims since OPM has

made no showing of at least some unreasonable delay that caused

the undue prejudice. See Rozen v. District of Columbia,

(D.C. Cir. 1983) (stating that laches “requires a

finding both that the plaintiff delayed inexcusably or

unreasonably in filing suit and that the delay was prejudicial to

the defendant” (emphasis added)).

B. Waiver

NTEU moves to compel production of the administrative record

in order to respond to the Director’s argument that NTEU waived

its claim by failing to raise its issues during the rulemaking

process. The Director opposes this motion arguing that the - 26 -

Federal Register provides adequate information regarding the

comments received. While a claim can be deemed waived if a

plaintiff failed to raise the issue during the rulemaking

process, Appalachian Power Co. v. E.P.A.,

(D.C. Cir. 2001), a claim can still be considered where a non-

party raised the issue at the administrative level and the agency

considered the issue. Natural Res. Def. Council, Inc. v. E.P.A.,

, 1151 (D.C. Cir. 1987); see also Nat’l Wildlife

Fed. v. E.P.A.,

(D.C. Cir. 2002) (stating that

issues not raised in the comments before an agency are waived and

will not be considered by the court).

The Federal Register entry for the final regulation

implementing the FCIP stated that “[t]he interim rule is adopted

as a final rule with the following changes based on agency

comments. OPM received written comments from eight agencies. We

also received a number of oral comments and questions from

agencies asking for additional information and/or clarification.

The majority of the comments were favorable.”8

-01. The Federal Register summarizes the comments

received, but it does not provide sufficient detail to determine

whether the issue surrounding NTEU’s claim was raised at the

8 Public records, such as the Federal Register, can be considered in a motion to dismiss under Rule 12(b)(6) without converting the motion to a motion for summary judgment. Marshall County Health Care Auth. v. Shalala,

, 1226 n.6 (D.C. Cir. 1993). - 27 -

administrative level. See generally Am. Bioscience, Inc. v.

Thompson,

(D.C. Cir. 2001) (cautioning that the

court should not rely on the parties’ representations to

determine the basis on which the agency acted when considering a

motion for preliminary injunction); Ctr. for Auto Safety v. Fed.

Highway Admin.,

(D.C. Cir. 1992) (noting that a

court evaluating an agency action should review “‘the whole

record [before the agency at the time of the decision] or those

parts of it cited by a party’” (quoting

)).

Production of all portions of the administrative record that will

reveal whether the claims NTEU raises here were raised at the

administrative level will be ordered. Because the Federal

Register entry is not sufficient to establish that NTEU waived

its challenge, the Director’s motion to dismiss on the grounds of

waiver will be denied without prejudice to its refiling after the

administrative record has been filed.9

CONCLUSION AND ORDER

Because NTEU has demonstrated associational standing, the

CSRA does not preclude NTEU’s challenge, and the Director has not

shown an unreasonable delay in NTEU filing this action, the

Director’s motion to dismiss will be denied as to these grounds.

The Director’s motion to dismiss on the ground that NTEU waived

9 Should the Director prefer, she may file a notice waiving the waiver issue to moot it, and move for relief from the requirement to produce the administrative record. - 28 -

its claim will be denied without prejudice to its refiling after

the administrative record has been filed. Because there is a

need for the administrative record, NTEU’s motion to compel will

be granted. Accordingly, it is hereby

ORDERED that defendant’s motion [4] to dismiss be, and

hereby is, DENIED as to the standing, CSRA preemption, and laches

grounds and DENIED without prejudice as to the waiver issue. It

is further

ORDERED that plaintiff’s motion [6] to compel production of

the administrative record be, and hereby is, GRANTED. Defendant

shall produce all portions of the administrative record that

reveal what challenges were lodged and whether those raised here

by NTEU were raised by anyone at the administrative level. It is

further

ORDERED that plaintiff’s motion [13] requesting oral

argument be, and hereby is, DENIED as moot. It is further

ORDERED that the parties confer and submit by August 3, 2009

a joint status report proposing a deadline for filing the

administrative record and a schedule on which to proceed on the

waiver issue. A proposed order shall accompany the joint report.

SIGNED this 20th day of July, 2009.

/s/ RICHARD W. ROBERTS United States District Judge