Union v. Devine, 577 F. Supp. 738 (D.D.C. 1983) (regulations interfered with NTEU's ability to negotiate collective bargaining agreements dealing with a variety of important employment issues on behalf of its present members). Second, with respect to the defendants' arguments concerning the conversion of the customs inspectors to competitive service, plaintiff recites the familiar rule that the voluntary cessation of allegedly illegal activity will not moot an action unless it is reasonably likely that the challenged activity will not recur. It would, however, defy reason to accept that OPM, having gone to the expense of validating and implementing a job-specific examination for customs inspectors, will simply abolish that test and return the position to the excepted service if this case is dismissed. Whatever the validity of the agency's decision to place the 118 entry level jobs under Schedule B, that action was taken in response to a specific event -- the Luevano Consent Decree. There is no reason to believe that OPM will make a practice of such drastic measures, and indeed, the requirements of the Decree make it very unlikely that it would do so.
Finally, plaintiffs argue that the converted customs inspectors have sustained injury despite their conversion, because they did not receive their promotions to the GS-9 level as promptly as they would have had they been competitive service employees, thereby suffering a loss of pay. In United States v. Testan, 424 U.S. 392, 96 S. Ct. 948, 47 L. Ed. 2d 114 (1976), the Supreme Court ruled that neither the Classification Act nor the Back Pay Act permitted recovery of retroactive promotions and backpay, and that, in the absence of any statutory provision creating a substantive right to such recovery, the United States has not consented to be sued for such damages. Plaintiffs here rely on the Federal Circuit's observation in Boese v. Dep't of Air Force, 784 F.2d 388 (Fed. Cir. 1986), that if an employee can "'clearly establish' that he would in fact have been promoted," he may be entitled to retroactive back pay. Id. at 390. In offering this dictum, however, the Boese court cited Power v. United States, 220 Ct. Cl. 157, 597 F.2d 258 (1979), where the Court of Claims noted that such recovery normally required a showing of legal entitlement, but that "possibly the Federal Personnel Manual (in effect at that time) may qualify this requirement somewhat . . . ." Id. at 262 (emphasis supplied). In the face of Testan's unequivocal language, this Court declines to base a finding of standing on the tenuous theory advanced by plaintiff -- that the now-converted customs inspectors may be able to clearly establish that they would have been promoted sooner, and that such a showing may be sufficient, as a legal matter, to permit such a recovery against the sovereign.
Nevertheless, the Court is convinced that an obvious injustice would occur were this case dismissed for lack of standing simply because the four named individuals have been converted to competitive status. NTEU brought this suit not only on behalf of the four named plaintiffs and all other union members employed by the Customs Service, but also on behalf of "all employees receiving a GS-5/7 . . . position Schedule B appointment since August 31, 1982." Complaint at para. 38. In seeking to institute this suit as a class action, NTEU alleged that the harms suffered by all such employees are the same, id. at paras. 40-41, and sought by way of relief, the establishment of "a competitive examination for all GS-5/7 . . . positions." Id. at para. A (emphasis supplied). By Order dated January 18, 1985, the Court granted plaintiffs an extension of time until thirty days after the disposition of the now-pending cross-motions for summary judgment within which to move for certification of this proposed class. While defendants would have this Court dismiss the case because the four named plaintiffs are no longer excepted service employees, it is clear that the harms alleged in the complaint would continue with respect to other members of the proposed class. Nothing in the complaint or in any of the parties' other filings suggests that these alleged harms are in any way unique to customs inspectors, or that they differ depending upon an employee's job. On the contrary, the complaint itself states that the harms are the same for all Schedule B employees. Nor is there any reason to believe, as defendants suggest, that NTEU could not adequately represent the interests of such employees. The union represents some 110,000 federal employees, of which only 15,000 are employed by the Customs Service. The complaint states that this representation includes federal employees "who have been appointed to 'Schedule B' positions which had previously been filled as competitive service positions." Id. at 1. It nowhere suggests that the only Schedule B employees it represents are customs inspectors. It appears, therefore, that the union includes excepted service employees other than customs inspectors. It is well settled that an association such as a union has "representational" standing where it alleges "that its members, or any one of them, are suffering immediate or threatened harm . . . ." Warth v. Seldin, 422 U.S. 490, 511, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). While it appears that NTEU represents federal employees other than customs inspectors who have been appointed to Schedule B positions previously filled by competitive examination, the Court cannot rest its finding of standing, and thus its exercise of jurisdiction, solely on an assumption. The union, therefore, must file an amended complaint within thirty days from the date of this order, naming as plaintiffs one or more union members who have been appointed to a Schedule B position, other than that of customs inspector, where such position was previously filled as a competitive service position. A failure to make such a filing timely will be construed as a declaration by NTEU that none of its members fall within this description, and an order will then be entered dismissing this action for lack of standing.
In anticipation that NTEU will in fact be able to make such a showing, the Court will address defendants' remaining contention as to why plaintiffs lack standing, namely, that the alleged harms plaintiffs recite are too conjectural or speculative to confer standing upon excepted service employees. While it is true that plaintiffs have not identified any excepted service employees who have been RIFed, demoted or removed, and thereby suffered the consequences of Schedule B's inferior status, as plaintiffs note, a sufficiently immediate threat of injury is enough to confer standing. Valley Forge Christian College v. Americans For Separation of Church and State, 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982). Here, the threats facing plaintiffs are several: a lack of procedural protections in the event of an adverse performance appraisal, inferior job retention rights in the event of a RIF, and increased competition for promotions within career ladders, to name the most significant. While defendants attempt to dismiss these as conjectural or speculative threats, this Circuit has concluded that parties alleging similar harms had standing to seek redress. In International Union of Bricklayers v. Meese, 245 U.S. App. D.C. 395, 761 F.2d 798 (D.C. Cir. 1985), for example, the Court of Appeals found that a union had standing to challenge government guidelines allowing aliens to enter the country and perform certain types of work which "would otherwise likely go to union members." Id. at 802 (emphasis supplied). Appellants in that case claimed that the alien workers "represent competition which [the union members] would not face if the Government followed the procedures required by law." Id.; see also Autolog Corp. v. Regan, 235 U.S. App. D.C. 178, 731 F.2d 25, 31 (D.C. Cir. 1984) (loss of employment opportunities sufficient to confer standing). So too here, the excepted service employees contend they would not face outside competition for promotion to the GS-9 level but for OPM's action. Even more to the point is National Treasury Employees Union v. Devine, 577 F. Supp. 738 (D.D.C. 1983), aff'd, 236 U.S. App. D.C. 22, 733 F.2d 114 (D.C. Cir. 1984), a case in which OPM also raised objections to this union's standing to challenge implementation of new agency personnel rules. There, as here, NTEU challenged changes affecting the performance management system and rules governing RIFs, and OPM argued that the union lacked standing since none of its members had in fact been adversely affected by the new rules. The district court concluded, however, that because the challenged regulations had a "far reaching impact on day-to-day working situations and an employee's career, dealing with job retention rights, performance appraisals, [and] promotions," the union had standing to bring suit. Id. at 744. Plaintiffs allege precisely the same harms here, and this Court concludes, as did the district court in NTEU v. Devine, that the threat of such harms is sufficiently immediate to confer standing on plaintiffs, without the necessity of waiting until a given plaintiff is demoted, fired, RIFed or denied a promotion.
Accordingly, for the reasons set forth above, plaintiffs are hereby directed to file within thirty days from the date of this opinion an amended complaint naming as plaintiff or plaintiffs one or more members of NTEU who are employed in positions currently classified as excepted service positions under Schedule B which, prior to the abolition of the PACE, were in the competitive service. In the event that plaintiffs fail to timely make such a filing, the case will be dismissed for lack of standing. Otherwise, the Court will proceed to address the remaining issues raised by the cross-motions, without further briefing by the parties.