performance, and certainly does not purport even remotely to preclude a distinction between clerical and non-clerical employees, for bumping or any other purpose.
6. Plaintiffs contend that §§ 551.204(a) and 551.203(c) of the new regulations violate the Fair Labor Standards Act ("FLSA"). Specifically, the FLSA provides that overtime will be paid to employees who work more than 40 hours, except for those who are "employed in a bona fide executive, administrative or professional capacity," as those terms are elsewhere defined, by regulations to be promulgated in accordance with the APA. 29 U.S.C. §§ 207, 213(a)(1). Although OPM has defined executive employees with reference to the "supervisory grade evaluation guide" which is part of the Federal Personnel Manual, ("FPM"), and which is not ordinarily published in accordance with the provisions of the APA, 48 Fed. Reg. 49,496 (1983), OPM responds that any future changes in this portion of the FPM will be made in accordance with the APA, and unless and until OPM does otherwise, this particular issue is not ripe for judicial intervention.
Plaintiffs also assert that § 551.203(c), which establishes a regulatory presumption that employees at grades GS-11 and above are exempt from the overtime provisions of the FLSA, violates longstanding law to the effect that the burden of proof of an FLSA exemption is on the employer. See, e.g., Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 394, 80 S. Ct. 453, 457, 4 L. Ed. 2d 393 (1960). OPM contends, however, that there is ample basis to presume that employees at these high grade levels would be exempt,
and that the presumption is, moreover, easily rebuttable. The administrative presumption does not, of course, affect the burden of proof applicable in a court of law.
In sum, the Court does not find on the record now before it any of the provisions challenged by plaintiffs to be arbitrary and capricious or otherwise unlawful, and plaintiffs have not, therefore, met their burden of establishing a likelihood that they will succeed in persuading it to the contrary at trial.
In the absence of a showing of likely success on the merits, it is unnecessary to address the other requirements for issuance of preliminary injunctive relief, but the Court notes for purposes of review that plaintiffs have not demonstrated the existence of these other elements to its satisfaction either.
First, with respect to irreparable injury, the Court finds that while both unions and their members find themselves in altered (and, to them, distasteful) circumstances as a result of the new regulations, they cannot be said to have sustained an "irreparable injury" as that term has been interpreted by the Supreme Court. In Sampson v. Murray, 415 U.S. 61, 94 S. Ct. 937, 39 L. Ed. 2d 166 (1974), the Supreme Court had before it the case of a federal employee who sought injunctive relief to prevent her imminent discharge pending completion of an administrative appeal, and, although the instant case is obviously distinguishable on its facts, it is significant that the Court there found that no irreparable injury would ensue from the employee's dismissal, either in terms of lost earnings or damaged reputation, and therefore, that the lower court's issuance of an injunction was improper.
Similarly, to the extent that individual employees represented by plaintiffs here to whom the new regulations apply are unlawfully dismissed in a RIF, or denied a within-grade increase, or refused overtime pay under the FLSA, each retains his or her individual remedies, and the fact that vast numbers of employees are potentially affected instead of just one does not raise the irreparability quotient of the situation. Injuries of this sort ordinarily cannot be aggregated numerically to reach a magic threshold at which they collectively become irreparable.
Nor is the Court persuaded by plaintiffs' argument that irreparable injury will be incurred by the unions qua bargaining agents because the negotiations process will be hampered by the uncertainty attendant upon the status of the new regulations. As in the case of any newly-promulgated rules, there is likely to be confusion at the outset, but, as OPM points out, both sides are equally affected, and the issuance of a preliminary injunction would not only not alleviate, but, indeed, would probably prolong and intensify the uncertainty. Moreover, as astute negotiators frequently are, plaintiffs may be able to turn uncertainty to their advantage in future negotiations,
and in that sense the new regulations may represent more opportunity than injury.
Finally, the Court finds that it would neither be equitable nor in the public interest to force a return to the old regulations until this case is finally determined. Not only would it cause yet another disruption in the orderly administration of the government, but the new regulations reflect a conscious policy decision by OPM to substitute meritocratic principles for a system it has regarded for some time as an enervating influence on the federal workforce. For more than two years OPM has been endeavoring to implement the new regulations over the misgivings of Congress (which never, however, progressed to outright repudiation), and the opposition of some federal employees and their unions who see in them a threat to job security. OPM submits that its new rules will afford a greater assurance of job security in the long run to those civil servants most deserving of it, and of a civil service for the nation of the quality OPM intends for it to have. Pending a decision on the merits, at least, and in the absence of a congressional judgment that the changes wrought by them are unwise, the new regulations should be given a long-awaited chance to work.
Therefore, for the foregoing reasons, it is, this 30th day of September, 1985,
ORDERED, that plaintiffs' motions for a preliminary injunction are denied.