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OCONUS DOD EMPLOYEE ROTATION ACTION GROUP v. COHEN
March 27, 2001
OCONUS DOD EMPLOYEE ROTATION ACTION GROUP, ET AL., PLAINTIFFS,
WILLIAM S. COHEN, SECRETARY, DEPARTMENT OF DEFENSE, DEFENDANT.
The opinion of the court was delivered by: Kessler, District Judge.
Plaintiffs are OCONUS DOD Employee Rotation Action Group
("ODERAG") — an association of approximately 250 career civil
servants assigned to overseas positions with the Department of
Defense — and two ODERAG members, Daniel Gasparino and Edward
Vierheller. Plaintiffs bring this action to invalidate a draft
of the Department of Defense Civilian Personnel Manual
Subchapter 1230 ("Draft Subchapter 1230" or "Draft"), which they
allege has changed the policy with respect to extensions of
overseas work assignments for civilian employees. The matter is
before the Court on Plaintiffs' Motion for Summary Judgment
("Plaintiffs' Motion") and Defendant's Cross Motion to Dismiss,
or in the Alternative, for Summary Judgment ("Defendant's
Motion"). Upon consideration of the motions, oppositions,
replies, and the entire record herein, for the reasons stated
below, Plaintiffs' Motion for Summary Judgment is denied and
Defendant's Motion to Dismiss, or in the Alternative, for
Summary Judgment, is granted.
In 1966, the Department of Defense ("DOD" or "Department")
established a policy pursuant to 10 U.S.C. § 1586(a)-(b)
that limited overseas work assignments for civilian employees to
five years.*fn2 The fiveyear policy has since been revised on
several occasions, most recently in 1988. The current version is
contained in Civilian Personnel Manual Subchapter 301.4-2a(1)
("CPM Subchapter 301.4"). In addition to establishing a
five-year limit on overseas positions, CPM Subchapter 301.4
permits local military commands to grant civilian employees
extensions beyond five years to continue working overseas on a
case-bycase basis, provided that an employee continues to be
rated fully successful.*fn3 The authority to grant extensions
under CPM Subchapter 301.4 is discretionary and is designed to
be exercised flexibly, in order to meet the evolving staffing
needs of DOD overseas. In practice, the number of extensions
granted pursuant to the fiveyear policy has varied over the
years, often fluctuating in response to the changes in active
duty military forces overseas. See Declaration of Deputy
Assistant Secretary of Defense for Civilian Personnel Policy
Diane Disney ("Disney Decl.") ¶ 7.
Draft Subchapter 1230 is intended to be the latest revision of
the five-year policy, and will replace CPM Subchapter 301.4,
once it is promulgated. Among other things, Draft Subchapter
1230 proposes changing CPM Subchapter 301.4 by limiting
extensions beyond the five-year limit to one renewal tour of
duty*fn4 and by transferring authority to grant extensions
from the local level to the major command level.
The particulars of Draft Subchapter 1230 are still being
On March 26, 1997, DOD Deputy Assistant Secretary of Defense
for Civilian Personnel Policy ("DASD(CPP)"), Diane M. Disney,
issued a memorandum as interim guidance on overseas extensions
pending the promulgation of Subchapter 1230 ("Interim
Guidance"). The Interim Guidance reaffirmed that CPM Subchapter
301.4 continued to set forth the current policy on tour
extensions and would remain in effect until finalization of
Draft Subchapter 1230. The Interim Guidance also explained that
extensions would be granted in "extremely rare situations."
See Defendant's Memorandum of Points in Opposition to
Plaintiffs' Motion for Summary Judgment and In Support of
Defendant's Cross Motion to Dismiss, or in the Alternative, for
Summary Judgment ("Def.'s Mot.") at Ex. 5.
Plaintiffs allege that, in response to the Interim Guidance,
several military commands, including U.S. Army Europe
("USAREUR") and U.S. Air Force Europe ("USAFE"), have begun
implementing Draft Subchapter 1230. In particular, they claim
that military commands have reduced the number of civilian
employees remaining overseas more than five years and have
granted extensions beyond five years only in increasingly rare
circumstances. See Compl. Exs. G-I; Plaintiffs' Memorandum of
Points and Authorities in Opposition to Defendant's Cross Motion
to Dismiss, or in the Alternative, for Summary Judgment ("Pls.'
Opp'n") at 21-25.
Plaintiffs move for summary judgment, and ask the Court to
find as a matter of law that Draft Subchapter 1230 is "arbitrary
and capricious" in violation of the Administrative Procedure Act
("APA"), 5 U.S.C. § 706(2)(A). Defendant cross-moves to dismiss
Plaintiffs' challenge due to lack of finality, ripeness and
standing, and for summary judgment on the ground that Draft
Subchapter 1230 is not arbitrary and capricious.
Both parties have moved for summary judgement. Defendant,
however, has styled its motion as a Motion to Dismiss or, in the
Alternative, for Summary Judgment. In support of its motion,
Defendant submitted and relied upon several documents outside
the pleadings. Accordingly, Defendant's Motion will be treated
as a Motion for Summary Judgment. Fed.R.Civ.P. 12(b).
Summary judgment will be granted when the pleadings,
depositions, answers to interrogatories and admissions on file,
together with any affidavits or declarations, show that there is
no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. Fed.R.Civ.P.
A. The Court Lacks Jurisdiction*fn6
As a preliminary matter, the Court denies Plaintiffs' request
for jurisdictional discovery. Plaintiffs seek information that
is entirely unrelated to the jurisdictional issues raised by
Defendant. Plaintiffs' request provides in full:
If permitted discovery, plaintiffs would obtain
documents which include, among others, the adverse
and other comments received by the DOD in the course
of the two years since the Rule was implemented;
statistical documentation of the disparate age impact
of the Rule, the inability of the DOD to fill vacated
positions with either new hires or military spouses,
the lack of statistical showing that new hires for
"future leaders" of DOD or military spouses are going
unfulfilled; and documents which show that DOD has
been obligated to offer cash bounties to fill
positions abroad and has otherwise not been able to
fill the positions vacated by Plaintiffs and
career-civil servants similar to them who have been
involuntarily rotated by the Rule. I would also seek
information that refutes the notion that "over 5'ers"
do not maintain currency in skills, are assisted in
this respect by forced rotation, as well as data
showing that the Priority Placement Program often
discriminates against these employees.
Plaintiffs' Rule 56(f) Affidavit at ¶ 5. All of the requested
information appears to be directed at the substantive merits of
the five-year policy (i.e., whether the policy satisfies DOD's
objectives). None of this information relates to the
jurisdictional issues of the finality of the agency action,
ripeness or standing. Accordingly, Plaintiffs' jurisdictional
discovery request is denied.
1. Draft Subchapter 1230 is not "Final Agency Action"
Judicial review under the APA is limited to review of final
agency action. 5 U.S.C. § 704. For agency action to be final, it
"must mark the consummation of the agency's decisionmaking
process," and "must be one by which rights or obligations have
been determined, or from which legal consequences will flow."
Bennett v. Spear, 520 U.S. 154, 178, ...