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NATIONAL TREASURY EMPLES. UNION v. HORNER

February 27, 1987

NATIONAL TREASURY EMPLOYEES UNION, et al., Plaintiffs,
v.
CONSTANCE HORNER, Director, Office of Personnel Management, et al., Defendants


Joyce Hens Green, United States District Judge.


The opinion of the court was delivered by: GREEN

This opinion is the second concerning plaintiffs' challenge to the government's August 31, 1982 abolition of the Professional and Career Examination (the PACE) and its decision to except from the competitive service the 118 federal jobs formerly governed by that examination. In an earlier decision, National Treasury Employees Union v. Horner, 659 F. Supp. 8 (D.D.C. 1986) (the "October 15, 1986 Opinion"), this court addressed defendants' contention that plaintiffs lacked standing to bring this action, and directed plaintiffs to file an amended complaint naming as plaintiffs persons hired since August 31, 1982 under the challenged Schedule B hiring authority who had not yet been converted to competitive service status. Plaintiffs filed such a complaint on November 15, 1986. The facts and background relevant to this litigation were set out at length in the October 15, 1986 Opinion and will not be reiterated here. The court turns directly, therefore, to the issues addressed by the parties in their pending cross-motions for summary judgment.

 I. Judicial Review

 Defendants contend that defendant Office of Personnel Management's (OPM's) decision to place the former PACE positions in the excepted service is an action committed to agency discretion and therefore not subject to judicial review. Under the Administrative Procedure Act (APA), agency action is subject to review except where precluded by statute, 5 U.S.C. § 701(a)(1), or where that action "is committed to agency discretion by law." Id. at § 701(a)(2). This latter exception applies "where 'statutes are drawn in such broad terms that in a given case there is no law to apply.'" Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971) (quoting S. Rep. No. 752, 79th Cong., 1st Sess. 26 (1945)). The relevant statute in question here, 5 U.S.C. § 3302, provides:

 
The President may prescribe rules governing the competitive service. The rules shall provide, as nearly as conditions of good administration warrant, for --
 
(1) necessary exceptions of positions from the competitive service.

 The only limitations placed on OPM's authority to except positions from the competitive service are the requirements that exceptions be consistent with "good administration," and "necessary." Characterizing these criteria as amorphous and open-ended, defendants argue that the statute provides "no meaningful standard against which to judge the agency's exercise of discretion," Heckler v. Chaney, 470 U.S. 821, 105 S. Ct. 1649, 1655, 84 L. Ed. 2d 714 (1985), and thus renders any such decision unreviewable.

 The exception for action "committed to agency discretion," however, it is a very narrow one, Overton Park, 401 U.S. at 410, and as defendants recognize, the question of reviewability ultimately turns on congressional intent. Southern Railway v. Seaboard Allied Milling Corp., 442 U.S. 444, 454, 60 L. Ed. 2d 1017, 99 S. Ct. 2388 (1979). The structure and purpose of the civil service laws at issue here demonstrate that Congress intended appointment to the civil service through competitive examination to be the norm, and that placement of positions in the excepted service is, as the name itself indicates, an exception to that norm, to be undertaken only upon a finding of necessity.

 Today's civil service laws trace their origin to the Pendleton Civil Service Act of 1883, 22 Stat. 403, which "provided for the creation of a classified civil service and required competitive examination for entry into that service." Arnett v. Kennedy, 416 U.S. 134, 149, 40 L. Ed. 2d 15, 94 S. Ct. 1633 (1974). As the Supreme Court has observed, the Act was "designed to eliminate the abuses associated with the patronage system from much of the federal service," Hampton v. Mow Sun Wong, 426 U.S. 88, 106, 48 L. Ed. 2d 495, 96 S. Ct. 1895 (1976) (footnote omitted), and instituted a "system of merit appointment, based on competitive examination, . . . replacing a patronage system in which appointment had often been treated as a method of rewarding support at the polls." Id. at 107. The Senate Report on the bill made this purpose unmistakably clear:

 
The single, simple, fundamental, pivotal idea of the whole bill is, that whenever, hereafter, a new appointment or a promotion shall be made in the subordinate civil service in the departments or larger offices, such appointment or promotion shall be given to the man who is best fitted to discharge the duties of the position, and that such fitness shall be ascertained by open, fair, honest, impartial competitive examination. The impartiality of those examinations is to be secured by every possible safeguard. They are to be open to all who choose to present themselves. There will be tests of fitness of the applicant for the particular place to which he aspires.

 Congress has retained the principle of appointment by merit throughout its various amendments and compilations of civil service law. In enacting a set of merit system principles to govern federal personnel management, congress reiterated that the "selection and advancement [of such personnel] shall be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition." 5 U.S.C. § 2301(b)(1) (emphasis supplied). Section 3304 confers upon the President the authority to prescribe rules "which shall provide, as nearly as conditions of good administration warrant, for . . . open, competitive examinations for testing applicants for appointment in the competitive service . . . ." 5 U.S.C. § 3304(a)(1) (emphasis supplied). Congress has defined the competitive service as " all civil service positions in the executive branch, except . . . positions which are specifically excepted." 5 U.S.C. § 2102(a)(1)(A) (emphasis supplied). And in granting the President the authority to except positions from the competitive service, Congress required that the exceptions be "necessary," 5 U.S.C. § 2303, not merely convenient or desirable.

 Viewed against this backdrop, OPM's discretion to except positions is not so broad as to render its exercise unreviewable. Certainly the requirement that such exceptions be "necessary" is not so amorphous or vague that this court lacks any meaningful standard with which to judge the agency's decision. Courts have reviewed agency action taken under far more general statutory requirements than that involved here. Thus, in National Treasury Employees Union v. Campbell, 191 U.S. App. D.C. 146, 589 F.2d 669 (D.C. Cir. 1978), the Court of Appeals undertook review of the Civil Service Commission's negotiation of insurance rates, where the statute simply required that the rates "reasonably and equitably reflect the cost of the benefits provided." Id. at 678. And in Arizona Power Pooling Ass'n v. Morton, 527 F.2d 721 (9th Cir. 1975), cert. denied, 425 U.S. 911, 47 L. Ed. 2d 761, 96 S. Ct. 1506 (1976), the Ninth Circuit held that a statute that simply required an agency to recommend the "most feasible" plan for seeking hydroelectric power was subject to judicial review. Id. at 726-28. A requirement of necessity provides a standard at least as definite as, if not more definite than, criteria such as "fairness and equity" or "most ...


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