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NATIONAL TREASURY EMPLES. UNION v. HOVE

January 11, 1994

NATIONAL TREASURY EMPLOYEES UNION, CARL DECK, BELINDA A. GENTRY, LYNN HARRIS, AND RAMON E. HERNANDEZ, Plaintiffs,
v.
ANDREW C. HOVE, JR., Acting Chairman, Federal Deposit Insurance Corporation, and CONSTANCE B. NEWMAN, Director, Office of Personnel Management, Defendants.



The opinion of the court was delivered by: STANLEY S. HARRIS

 This case is before the Court on plaintiff's recent application for a preliminary injunction and on the cross-motions for summary judgment, which have been at issue for some time. Also before the Court are defendants' motion to exclude from consideration material outside of the administrative record, plaintiffs' motion to compel, and defendants' renewed motion to strike. Upon consideration of the entire record, including the arguments of counsel at the hearing held on January 8, 1994, the Court grants defendants' motion for summary judgment, and defendants' motion to exclude. Therefore, the Court denies as moot plaintiffs' application for a preliminary injunction, plaintiffs' motion to compel, and defendants' renewed motion to strike. Although "findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56," the court nonetheless sets forth its analysis. See Fed. R. Civ. P. 52(a).

 Background

 Plaintiffs are the NTEU, a union that represents over 100,000 government workers, and four individually named FDIC employees. *fn1" These named plaintiffs hold "liquidation graded" (LG) positions: they assist in liquidating the assets or paying the depositors of failed banks or closed savings and loan institutions. Although applicants for most federal civil service jobs are required to take a competitive examination before being considered for a position, since 1939, LG positions have been exempt from this requirement. *fn2" Plaintiffs claim that as a result of being improperly placed in the "excepted service," employees in LG positions suffer poor benefits and lack job security.

 Congress granted the President the authority to make "necessary exceptions of positions from the competitive service." 5 U.S.C. § 3302. Subsequently, the President delegated to the OPM the authority to "except positions from the competitive service when it determines that appointments thereto through competitive examinations are not practicable." Exec. Order No. 10,577, 5 C.R.R. § 6.1(a). Pursuant to this delegated authority, the OPM promulgated a regulation permitting the FDIC to dispense with the competitive examination procedure when hiring LG employees. *fn3" The 1989 regulation excepts from competitive service:

 
all Liquidation Graded, temporary field positions concerned with the work of liquidating the assets of closed banks or savings and loan institutions, of liquidating loans to banks or savings and loan institutions, or of paying the depositors of closed insured banks or savings and loan institutions. New appointments may be made under this authority only during the 5-year period following a bank or savings and loan institution closing and/or establishment of a consolidated liquidation site.

 5 C.F.R. § 213.3133(a). *fn4"

 Plaintiffs challenge the legality of this hiring regulation excluding LG positions from the competitive service. Specifically, they allege that it is not impracticable to require a competitive examination for LG positions and that the OPM arbitrarily relied on invalid justifications in concluding that an examination would not be feasible. Therefore, they claim that the OPM regulation granting the FDIC authority to exempt LG employees violates the Administrative Procedure Act because it is arbitrary, capricious, and contrary to civil service law. See 5 U.S.C. § 706(2)(A). *fn5"

 Cross-motions for summary judgment were fully briefed on December 1, 1992. Before the Court could issue an Opinion resolving the case, plaintiffs informed the Court that the OPM had undertaken a review of all Schedule A authorities for temporary and seasonal employment. See Pl.s' Application for Prelim. Inj. at Ex. 9. On December 2, 1993, the OPM amended the FDIC's Schedule A authority to except from competitive service:

 
until June 1, 1996, all Liquidation Graded, temporary field positions concerned with the work of liquidating the assets of closed banks or savings and loan institutions, of liquidating loans to banks or savings and loan institutions, or of paying the depositors of closed insured banks or savings and loan institutions. No new appointments may be made under this authority after December 31, 1993.

 Id. at Ex. 11. On December 10, 1993, plaintiffs filed an application for a preliminary injunction to enjoin the FDIC from reorganizing its operations and terminating LG employees pending the Court's ruling on the cross-motions for summary judgment.

 Because the Court grants defendants' motion for summary judgment, it denies plaintiffs' motion for a preliminary injunction as moot. In addition, the Court finds that because plaintiffs do not appear to be challenging the OPM's December 2, 1993, action as arbitrary and capricious or otherwise contrary to law, the motion to compel is not properly before the Court and also is denied as moot. *fn6"

 Discussion

 Motion To ...


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