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 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
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, 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). - 5 -
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 (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 - 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., 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 - 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, 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 - 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. 617 F.
Supp. at 367 (emphasis in original). Likewise, in OCONUS DOD
Employee Rotation Action Group v. Cohen, 144 F. Supp. 2d 1, 7
(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. 484 U.S. at 443. 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. Id. at 455. 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 5 U.S.C. § 3302. (Compl. ¶ 32.) Section 3302
provides authority to exempt when necessary certain positions
from the competitive service process that is required under 5
U.S.C. § 3304. 5 U.S.C. §§ 3302, 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 5 U.S.C. § 1214; see also Carson v. U.S. Office
of Special Counsel, 563 F. Supp. 2d 286, 289 (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[.]
5 U.S.C. § 2302. - 11 -
a type of claim which has been distinguished from one that is
precluded by the CSRA. See NTEU v. Egger, 783 F.2d 1114, 1117
(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, 743 F.2d 895, 907 (D.C. Cir. 1984), to support the proposition that NTEU must bring its claim to the MSPB under 5 U.S.C. § 1204(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[.]” 5 U.S.C. § 1204(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.” 743 F.2d at 907. - 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., 489 F.3d 1364, 1370 (D.C. Cir. 2007)
(citing Hunt v. Washington State Apple Adver. Comm’n, 432 U.S.
333, 342-43 (1977); Sierra Club v. E.P.A., 292 F.3d 895, 898
(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., 429
F.3d 1130, 1134 (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., 503 F. Supp. 2d
163, 171 (D.D.C. 2007) (quoting Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (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, 504
U.S. at 561 (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, 786 F. Supp. 1041, 1044 (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, 628 F.2d 133, 139
(D.C. Cir. 1980) (quoting Duke Power Co. v. Carolina Envtl. Study
Group, Inc., 438 U.S. 59, 72 (1978); Warth v. Seldin, 422 U.S.
490, 505 (1975)); see also N.C. Fisheries Ass’n, Inc. v.
Gutierrez, 518 F. Supp. 2d 62, 81 (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., 518 F. Supp. 2d at 83 (brackets in
original) (quoting Huddy v. F.C.C., 236 F.3d 720, 722 (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, 484 F. Supp. 2d 24, 29 (D.D.C. 2007) (brackets in
original) (quoting Winpisinger, 628 F.2d at 139). 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, 854 F.2d 490 (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, 786 F.
Supp. at 1045; see also Allen v. Heckler, 780 F.2d 64, 70 (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., 172 F.3d 65, 68-69 (D.C. Cir. 1999);
Nat’l Lime Ass’n v. E.P.A., 233 F.3d 625, 637 (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, 824 F.2d 1228, 1233-
34 (D.C. Cir. 1987) (noting that courts generally defer to an
7 The Director relies on Kickapoo Tribe of Oklahoma v. Lujan, 728 F. Supp. 791 (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. Id. at 796 (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,
846 F.2d 1499, 1503 (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, 463 F. Supp. 2d 26, 32 (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, 517 U.S. 544, 546
(1996); Int’l Union, United Auto., Aerospace & Agric. Implement
Workers of Am. v. Brock, 477 U.S. 274, 287 (1986))). Cf. Harris
v. McRae, 448 U.S. 297, 321 (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, 374 U.S. 203, 223 (1963)); NTEU
v. U.S. Dep’t of Treasury, Civil Action No. 92-1150 (HHG), 1993
WL 835593, 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), 1993 WL 102650, at *1 n.2 (D.D.C. Mar. 16, 1993) (stating
that because plaintiffs seek equitable relief, individual
participation is not required); Seidman, 786 F. Supp. at 1045 - 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, 543 F. Supp. 2d 44, 50 (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., 138 F.R.D. 325, 326 (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., 919 F.2d 1398, 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, 353 F.3d 36, 39 (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., 16 F.3d 1271, 1276
(D.C. Cir. 1994). A plaintiff does not need to plead detailed
factual allegations, Aktieselskabet AF 21. Nov. 2001 v. Fame
Jeans Inc., 525 F.3d 8, 17 (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, 550 U.S. 544, 570 (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.” Id. at 557-58.
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, 1995 WL 418667, at *4 (D.C. Cir. June 21,
1995); see also Pro-Football, Inc. v. Harjo, 415 F.3d 44, 47
(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, 370 F. Supp. 2d 118, 128 (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, 694 F.2d 838, 843 (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., 353 F.3d 1006, 1010 (D.C. Cir. 2004); see also West
Virginia Highlands Conservancy v. Johnson, 540 F. Supp. 2d 125,
138 (noting that a six-year statute of limitations, 28 U.S.C.
§ 2401(a), applies to APA claims brought under 5 U.S.C. § 706).
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, 353 F.3d at 1010 (quoting
Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333
U.S. 103, 113 (1948); Port of Boston Marine Terminal Ass’n v.
Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (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., 121 F.
Supp. 2d 84, 105 (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, 50 F. Supp. 2d 7, 17 (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), 1991 WL 241848, 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, 535 F. Supp. 2d 137, 141-42 (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, 370 F. Supp. 2d at 128 (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, 702 F.2d
1202, 1203 (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., 251 F.3d 1026, 1036
(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.,
824 F.2d 1146, 1151 (D.C. Cir. 1987); see also Nat’l Wildlife
Fed. v. E.P.A., 286 F.3d 554, 562 (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 70 Fed. Reg.
44,219-01. 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, 988 F.2d 1221, 1226 n.6 (D.C. Cir. 1993). - 27 -
administrative level. See generally Am. Bioscience, Inc. v.
Thompson, 243 F.3d 579, 582 (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., 956 F.2d 309, 314 (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 5 U.S.C. § 706)).
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