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AFGE v. OFFICE OF PERSONNEL MGMT.

September 30, 1985

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO., Plaintiff,
v.
OFFICE OF PERSONNEL MANAGEMENT, et al., Defendants; NATIONAL TREASURY EMPLOYEES UNION, Plaintiff, v. LORETTA CORNELIUS, et al., Defendants; NATIONAL FEDERATION OF FEDERAL EMPLOYEES, Plaintiff, v. LORETTA CORNELIUS, et al., Defendants



The opinion of the court was delivered by: JACKSON

 In these three consolidated cases unions representing federal civilian employees challenge the implementation of regulations promulgated by the Office of Personnel Management ("OPM") which work major changes in the terms and conditions upon which federal employment is held, including such matters as reductions in force ("RIFs"), promotions, performance management systems, pay administration under the Fair Labor Standards Act ("FLSA"), and others. *fn1" The case is now before the Court on plaintiffs' motions for a preliminary injunction staying implementation of the regulations pending a decision on the merits of their legality. For the reasons set forth below the Court finds that plaintiffs have not made the showing required of them for preliminary injunctive relief under Virginia Petroleum Jobbers Ass'n v. Federal Power Comm'n, 104 U.S. App. D.C. 106, 259 F.2d 921, 925 (D.C. Cir. 1958), and Washington Metropolitan Area Transit Comm'n v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 559 F.2d 841, 843 (D.C. Cir. 1977), and their motions for preliminary injunction will, therefore, be denied.

 I.

 The origins, including the judicial antecedents, of the present dispute are many and convoluted, and have engaged at various times the simultaneous attentions of all three branches of the government. The controversy began on March 30, 1983, when, as required by the APA, 5 U.S.C. § 553, OPM published in the Federal Register a proposed set of regulations governing federal civilian employment, the primary thrust of which was to exalt sustained high-quality performance over seniority as the principal criterion upon which promotions, pay, retention preferences, and the like would be dispensed. 48 Fed. Reg. 13,341 et seq. (1983). Having provoked the extensive commentary which might be expected, the proposed regulations were then revised and republished by OPM on July 14, 1983, and the public given an additional 30 days in which to comment again. 48 Fed. Reg. 32,279 et seq. (1983). Apparently still uneasy with the results, however, on August 15, 1983, Congress enacted legislation prohibiting OPM from expending any funds "to adopt, to issue, or to carry out a final rule or regulation, a final revision, addition, or amendment to regulations, or a final statement of policy" in the matter. Department of Transportation and Related Agencies Appropriations Act, 1984, Pub. L. 98-78, § 323, 97 Stat. 453 (1983). The ban on spending expired on October 15, 1983, and Congress failed to renew it. Once again OPM put the regulations forth, publishing its intended final version in the Federal Register on October 25, 1983, to take effect on November 25, 1983. 48 Fed. Reg. 49,462-49,498 (1983). In the meantime, however, the House Appropriations Committee had reported H.R. 4139 making appropriations for the fiscal year ending September 30, 1984, for a number of federal agencies, including OPM, see H.R. Rep. No. 417, 98th Cong., 1st Sess. (1983), and contained within the bill was the so-called "Hoyer Amendment" providing:

 
None of the funds appropriated under this Act shall be obligated or expended to implement, promulgate, administer, or enforce the proposed Office of Personnel Management regulations and the proposed Federal Personnel Manual issuances published in the Federal Register on March 30, 1983, . . . as superseded by proposed regulations and Federal Personnel Manual issuance published in the Federal Register on July 14, 1983.

 H.R. 4139 was passed by the House on October 27, 1983, with the Hoyer Amendment intact, two days after OPM had issued its third version of the regulations. The Senate never had an opportunity to act on H.R. 4139, for in early November, 1983, compelled by fiscal urgency, Congress resorted to a continuing resolution, H.J. Res. 413, the second for that year, in lieu of the customary appropriations process for funding government operations, and H.J. Res. 413 incorporated H.R. 4139, including the Hoyer Amendment. Pub. L. 98-151, 97 Stat. 964 (1983). Undaunted, on November 21, 1983, OPM announced that, notwithstanding H.J. Res. 413, the regulations would take effect as scheduled on November 25, 1985, because, being finished, no additional money would have to be spent on them.

 Two weeks earlier, however, uncertain of the extent to which it could count on Congress for succor, National Treasury Employees Union ("NTEU"), one of plaintiffs here, had filed suit in this court seeking injunctive relief and a declaration that the regulations were "null and void." *fn2" Upon OPM's announcement of its intention to go forward with the regulations plaintiffs applied for and were granted a temporary restraining order staying their implementation, which was thereafter extended by agreement of the parties pending the court's decision on cross-motions for summary judgment.

 On December 30, 1983, a judge of this court granted plaintiffs' motion for partial summary judgment, holding that Congress had intended H.J. Res. 413 to forestall implementation of the regulations and render them "without any effect whatsoever, as long as OPM's funding derives from" [the continuing resolution], whether or not OPM expected to spend any of it on putting the regulations into effect. National Treasury Employees Union v. Devine, 577 F. Supp. 738, 750 (D.D.C. 1983).

 In April, 1984, the court of appeals affirmed, adopting the holding of the district court. It then added a dictum, however, that:

 
In so holding, we emphasize the finite nature of the congressional prohibition. There is no suggestion in the language of the Hoyer Amendment, or H.R.J. Res. 413, that Congress intended to bar implementation of the regulations beyond the period during which OPM receives its funds through H.R.J. Res. 413. Moreover, as we have said, the legislative history indicates that Congress sought additional time to evaluate legislative solutions -- it does not suggest that Congress permanently repealed OPM's authority to implement the disputed regulations. Therefore, we hold that when OPM's funding no longer derives from H.R.J. Res. 413, OPM will be free to take any steps deemed necessary to implement, administer and enforce the regulations, unless Congress acts to impose new restrictions.

 National Treasury Employees Union v. Devine, 236 U.S. App. D.C. 22, 733 F.2d 114, 120 (D.C. Cir. 1984).

 Congress did, indeed, thereafter impose new restrictions, in the form of the Continuing Appropriations Act of 1985, Pub. L. 98-473, 98 Stat. 1963, which extended the ban until July 1, 1985, *fn3" and there the matter rested until in late June, 1985, when OPM intimated that it might withdraw the regulations. *fn4" The following day, however, the Office of Management and Budget ("OMB"), to whom the proposed withdrawal had been submitted for review pursuant to Executive Order, announced that the regulations would take effect on July 1, 1985. *fn5" On June 27, 1985, plaintiff AFGE filed the first of these actions. *fn6"

 To obtain the preliminary injunctive relief they seek, plaintiffs must establish: (1) that they are likely to prevail on the merits of their claims; (2) that without such relief, they may expect to suffer irreparable injury; (3) that issuance of an injunction would not substantially harm other parties interested in the litigation; and (4) that it would be in the public interest to grant the relief requested. Virginia Petroleum Jobbers Ass'n, 259 F.2d at 925; WMATA v. Holiday Tours, 559 F.2d at 843.

 Defendants contend that there is no likelihood that plaintiffs will ultimately succeed on the merits of their claims because (1) they lack standing to litigate their claims, and the claims themselves are not ripe for adjudication; (2) the disputed regulations were properly formulated and implemented in accordance with the "notice and comment" requirements of the APA, 5 U.S.C. § 553; and (3) the regulations are not "arbitrary, ...


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