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NATIONAL TREASURY EMPLES. UNION v. DEVINE

December 23, 1983

NATIONAL TREASURY EMPLOYEES UNION, Plaintiff,
v.
DONALD DEVINE, Defendant


Charles R. Richey, District Judge.


The opinion of the court was delivered by: RICHEY

Plaintiff, National Treasury Employees Union ("NTEU"), seeks declaratory, injunctive, and mandamus relief, alleging that defendant Donald Devine, Director of the Office of Personnel Management ("OPM"), violated the Civil Service Reform Act of 1978 by failing to post the text of proposed regulations in federal offices in accordance with 5 U.S.C. § 1103(b)(2)(A) and by promulgating regulations at 5 C.F.R. Part 110 which are contrary to the Act. Upon consideration of cross-motions for summary judgment and memoranda in support and opposition, the court has determined that there are no genuine issues of material fact and that defendant is entitled to summary judgment on the merits.

 The regulations at the center of this dispute were published in the Federal Register on July 14, 1983, and concern the implementation of a performance-based incentive system, 48 Fed. Reg. 32288, changes to federal reduction-in-force procedures, 48 Fed. Reg. 32303, and changes in the application and interpretation of the Fair Labor Standards Act exemption standards for federal employees, 48 Fed. Reg. 32290. The parties agree that this publication fulfilled defendant's duties under 5 U.S.C. § 1103(b)(1). Their conflict arises over the defendant's actions to fulfill his obligations under § 1103(b)(2)(A), which provides that:

 
the Director shall take steps to ensure that -- (A) any proposed rule or regulation to which paragraph (1) of this subsection applies is posted in offices of Federal agencies maintaining copies of the Federal personnel regulations . . .

 PLAINTIFF UNION HAS STANDING TO SUE

 Before addressing the question of whether OPM's regulations and activities satisfy the statutory mandate of § 1103(b)(2)(A), the court must find that plaintiff has standing to bring this suit. It is well-established that the standing doctrine has both constitutional and prudential dimensions. Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982); Community Nutrition Institute v. Block, 225 U.S. App. D.C. 387, 698 F.2d 1239 (D.C. Cir. 1983). For an association to have standing to sue on behalf of its members, it must show that:

 
(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

 Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343, 53 L. Ed. 2d 383, 97 S. Ct. 2434 (1977).

 NTEU has met its burden in this case, where only the first element, its members' rights to sue, has been seriously questioned. Defendant's alleged failure to fulfill adequately his posting obligations would impair the rights of plaintiff's members to receive notice and to comment upon proposed regulations. Although the responsibility for the alleged failures may be shared by OPM and agencies, it is still fairly traceable to defendant's actions and likely to be redressed by a judicial remedy in this case. See American Association of Travel Agents, Inc. v. Blumenthal, 184 U.S. App. D.C. 253, 566 F.2d 145 (D.C. Cir. 1977). Plaintiff's allegations amount to "injury in fact" even though the harm is to its members' procedural rights. Committee for Full Employment v. Blumenthal, 196 U.S. App. D.C. 155, 606 F.2d 1062, 1065 (D.C. Cir. 1979). Any "identifiable trifle of harm" will suffice. Travel Agents, 566 F.2d at 156, citing United States v. SCRAP, 412 U.S. 669, 689 n.14, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1977). See also NTEU v. Campbell, 589 F.2d 669 (D.C. Cir. 1978); NTEU v. Nixon, 172 U.S. App. D.C. 217, 521 F.2d 317 (D.C. Cir. 1975) (recognizing union standing).

 OPM's REGULATIONS AND ACTIONS COMPLY WITH STATUTORY REQUIREMENTS

 Plaintiff claims that OPM's regulations are contrary to the statute in that they 1) share the director's posting responsibility with federal agencies; 2) permit the posting of notice rather than full text; and 3) permit posting even after the comment period. Recognizing that an agency's interpretation of its own statute is entitled to "great deference," EPA v. Crushed Stone Association, 449 U.S. 64, 83, 66 L. Ed. 2d 268, 101 S. Ct. 295 (1980), the court finds that neither the language of the statute (quoted above) nor its legislative history support plaintiff's position.

 First, the language of the statute distinguishes between the director's obligations under § 1103(b)(1), concerning the publication of proposed rules, and his obligations under § 1103(b)(2)(A), concerning posting. The first subsection provides that "the Director shall publish" (emphasis added) -- indicating that it is his sole responsibility -- while the next subsection provides that "the Director shall take steps to ensure that -- (A) any proposed rule or regulation . . . is posted in the offices of Federal agencies" -- indicating that a joint effort is required. Further, the statute does not contain any express timing provisions. Finally, its language is susceptible to OPM's interpretation that posting less than the full text, "in a prominent place . . . which best fits their physical layout" is a satisfactory method of implementation. 5 C.F.R. § 110.102(b).

 The legislative history also lends support to defendant's case. An amendment offered on the floor to the House version placed all responsibility on the agencies to post material. House Committee on Post Office & Civil Service, Legislative History of the Civil Service Reform Act of 1978, Comm. Print No. 96-2, 96th Cong., 1st Sess. 7, 882-83 (" Legislative History "); 124 Cong. Rec. H. 9379 (daily ed. September 11, 1978). In contrast, the Senate version placed the burden solely on the director of OPM, stating that "the Director shall insure that . . . the proposed rule or regulation is posted. . . ." Legislative History at 1657; 124 Cong. Rec. S. 14292 (daily ed. August 24, 1978) (emphasis added). ...


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