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NATIONAL TREASURY EMPLES. UNION v. NEWMAN

July 22, 1991

NATIONAL TREASURY EMPLOYEES UNION, Plaintiff,
v.
CONSTANCE NEWMAN, Director, Office of Personnel Management, Defendant


Joyce Hens Green, United States District Judge.


The opinion of the court was delivered by: GREEN

JOYCE HENS GREEN, UNITED STATES DISTRICT JUDGE

 I

 Plaintiff, a union of federal employees, brought this action to challenge the promulgation by defendant Office of Personnel Management ("OPM") of a new program of examinations governing hiring for 112 career positions with the federal government. *fn1" This program, named "Administrative Careers with America" ("ACWA"), consists of a competitive procedure in which examination scores are combined with an applicant's score on an "Individual Achievement Record," ("IAR"), a questionnaire purporting to measure an applicant's character. *fn2" ACWA was created to replace the "Schedule B" hiring process that in turn had been implemented to replace the former Professional and Administrative Career Examination ("PACE") suspended under this Court's direction in the Luevano decree. See Luevano v. Campbell, 93 F.R.D. 68 (D.D.C. 1981); see also National Treasury Employees Union v. Horner, 854 F.2d 490 (D.C. Cir. 1988) ("NTEU I"). Plaintiff alleges OPM promulgated ACWA unlawfully because it failed to follow the procedures mandated by the Administrative Procedure Act ("APA"), 5 U.S.C. ยง 551 et seq.

 Pending before the Court are the defendant's motion to dismiss and the plaintiff's motion for summary judgment. After full consideration of the pleadings and a hearing on the record, and for the reasons set forth below, defendant's motion is denied and plaintiff's motion is granted.

 II

 A. Standing

 Defendant contends that plaintiff lacks standing to bring this action. To maintain a case in federal court, a plaintiff must show that it has "suffered (1) some actual or threatened injury that (2) fairly can be traced to the challenged action and (3) is likely to be redressed by a favorable decision." City of Los Angeles v. National Highway Traffic Safety Administration, 286 U.S. App. D.C. 78, 912 F.2d 478, 483 (D.C. Cir. 1990) (quotations and citation omitted).

 OPM maintains that plaintiff fails to demonstrate a cognizable injury to itself to pursue the claim on its own behalf or on behalf of its members. OPM argues that depriving NTEU of the opportunity to comment does not constitute real, immediate, and objective harm. Furthermore, OPM notes that NTEU failed to assert that any of its members wished to comment on ACWA nor did it identify any concrete or immediate harm to its members caused by the inability to comment on the program.

 Defendant's arguments are not convincing. Plaintiff clearly alleges a cognizable injury in paragraph 18 of its complaint: deprivation of its right (and its members' right) to an opportunity to comment on ACWA. "It is well established that the harm suffered by those who would otherwise participate in agency rulemaking under the APA is to be considered irreparable when the agency fails to afford them their rights to such participation." Community Nutrition Institute v. Butz, 420 F. Supp. 751, 757 (D.D.C. 1976). Plaintiff, as the exclusive bargaining representative of approximately 140,000 federal employees, is unquestionably an interested party in OPM rulemaking proceedings and would undoubtedly participate in any such proceedings, as it often has in the past. Indeed, real harm may be assumed where there is a failure of the government to follow the APA. This injury--denial of the opportunity to participate--is more than fairly traceable to OPM's alleged inaction (failure to publish for notice and comment), and would be redressed by allowing plaintiff that opportunity. See also National Treasury Employees Union v. Cornelius, 617 F. Supp. 365, 366-67 (D.D.C. 1985) (finding no merit in defendant OPM's contention that plaintiff lacked standing where plaintiff alleged substantive and procedural flaws in OPM's rulemaking).

 B. Administrative Procedure Act Requirements

 1. The Civil Service Reform Act of 1978 provides that the Director of OPM

 
shall publish in the Federal Register general notice of any rule or regulation which is proposed by the Office and the application of which does not apply solely to the Office or its employees. Any notice shall include the matter ...

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