legality of a Draft policy which is subject to ongoing revision.
See Continental Air Lines, Inc. v. Civil Aeronautics Board,
522 F.2d 107, 125 (D.C.Cir. 1974); see also Cronin v. Federal
Aviation Admin., 73 F.3d 1126, 1131 (D.C.Cir. 1996) (factors in
determining fitness include whether the question is purely
legal, whether the court would benefit from a more concrete
setting and whether the decision is final).
Second, Plaintiffs suffer no hardship from the existence of
Draft Subchapter 1230. Plaintiffs argue that Draft Subchapter
1230 has resulted in denials of many extensions of overseas
tours of duty, causing significant hardship to the professional
and personal lives of those affected. While Plaintiffs' claims
of hardship are by no means insignificant, all changes in the
practice of granting extensions of overseas tours of duty have
been made pursuant to CPM Subchapter 301.4, not Draft Subchapter
1230. Thus, Plaintiffs' hardship derives from application of CPM
Subchapter 301.4, not Draft Subchapter 1230.
Accordingly, given that Draft Subchapter 1230 is not "fit for
review" and that there is no "hardship" deriving from a delay in
review, the Court concludes that Draft Subchapter 1230 is not
ripe for review.
3. Plaintiffs Lack Constitutional Standing
Defendant argues that Plaintiffs lack standing to challenge
Draft Subchapter 1230. To have standing, Plaintiffs must allege:
(1) an injury in fact that is concrete and particularized and
"actual or imminent, not conjectural or hypothetical," (2) "a
causal connection between the injury and the conduct complained
of" and (3) that it is "likely" rather than merely speculative
that the injury will be redressed by the relief requested. See
e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561,
112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotations
omitted). Plaintiffs fail to establish standing in this instance
because their injury is "conjectural or hypothetical."
As explained in the foregoing sections, Draft Subchapter 1230
has not yet been fully formulated, finalized or implemented. Any
injury Plaintiffs currently claim derives from CPM Subchapter
301.4 and local command interpretations thereof. Thus, the only
injury traceable to Draft Subchapter 1230 is the possibility
that Plaintiffs will be unlawfully denied extensions of tours of
duty sometime in the future based on Draft Subchapter 1230 once
it is revised and promulgated. This injury is purely
"conjectural and hypothetical." Accordingly, Plaintiffs lack
standing to challenge Draft Subchapter 1230.
In sum, because the undisputed facts show that Draft
Subchapter 1230 is not final agency action and not ripe for
review, and that Plaintiffs lack standing, the Court concludes
that it lacks subject matter jurisdiction over Plaintiffs'
B. Draft Subchapter 1230 is not Arbitrary and
Even assuming subject matter jurisdiction, the record
Plaintiffs' challenge to Draft Subchapter 1230 fails as a matter
An agency's action may be set aside only if it is "arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law." 5 U.S.C. § 706(2)(A). In making this
finding, the Court "must consider whether the decision was based
on a consideration of the relevant factors and whether there has
been a clear error of judgment." Citizens to Preserve Overton
Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28
L.Ed.2d 136 (1971). If the "agency's reasons and policy choices
. . . conform to `certain minimal standards of rationality'
. . . the rule is reasonable and must be upheld", Small Refiner
Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 521 (D.C.Cir.
1983) (citation omitted), even though the Court itself might
have made different choices.
Applying these standards, it is clear that Draft Subchapter
1230 withstands APA review. Draft Subchapter 1230 would effect
two changes in the current policy: it would eliminate the
authority of local supervisors to grant extensions, authorizing
only the major command level to grant extensions beyond five
years; it would also allow only one extension to be granted
beyond five years. See Disney Decl. ¶ 12. Both of these
changes have a rational basis.
The first change is designed to minimize personal influence
and maximize objectivity in personnel staffing matters.
Currently, local management officials have the authority to rule
on the extensions of their friends and close associates. DOD
believes that keeping the authority at a higher level ensures
that extensions are made based on DOD mission requirements.
See Disney Decl. ¶ 13.
The second proposed change — prohibiting extensions beyond one
renewal tour of duty — is related to the downsizing or
"drawdown" of active duty forces abroad and the concomitant
decline in the number of available overseas positions for
civilians. Overseas experience is critical to the career
development of DOD employees. Id. ¶¶ 15-16. With fewer
positions available overseas, DOD believes that it is necessary
to rotate personnel in such positions more frequently so that a
greater number of DOD employees have the opportunity to work
overseas, as is contemplated by 10 U.S.C. § 1586.
Opening up overseas positions also ensures that employment
opportunities are available to the increasing number of spouses
of servicemembers who are stationed abroad. Providing employment
opportunities to them is essential to the recruitment and
retention of active duty personnel, as military spouses are
increasingly entering the workforce. Id.
Moreover, DOD believes that limiting extensions to one renewal
tour of duty will ensure that its employees abroad do not lose
their skills, especially in the technology area. Id.
Plaintiffs respond to Defendant's arguments with a litany of
criticisms of Draft Subchapter 1230. As a preliminary matter, it
should be noted that most of Plaintiffs arguments are directed
at the substantive basis for the proposed fiveyear policy,
rather than the legality of DOD's reasoning or decision-making
process. The role of the Court, however, is not to undertake a
de novo scrutiny of the substantive merits of a civilian
personnel policy. The expertise for that task lies exclusively
with DOD and the executive branch. The role of the reviewing
court is merely to assess whether DOD:
relied on factors which Congress has not intended it
to consider, entirely failed to consider an important
aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the
agency, or is so implausible that it could not be
ascribed to a difference in view or the product of
See Motor Vehicle Mfrs. Ass'n of United States, Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77
L.Ed.2d 443 (1983). Furthermore, the Court exercises a special
deference in cases involving matters of military management.
See Doe v. Sullivan, 938 F.2d 1370, 1380 (D.C.Cir. 1991);
Dilley v. Alexander, 603 F.2d 914, 919-920 (D.C.Cir. 1979).
With these principles in mind, the Court turns to the
particulars of Plaintiffs' arguments.
First, Plaintiffs dispute that overseas employees will lose
currency in skills if they remain abroad indefinitely. They also
disagree that overseas positions foster professional development
or improve opportunities for spouses of servicemembers. See
Pls. Opp'n at 25-27. Plaintiffs, however, have offered no
evidence to substantiate their bald factual assertions.
Second, Plaintiffs argue that the positions vacated pursuant
to Draft Subchapter 1230 will remain vacant, thereby defeating
DOD's goal of rotating a wider range of civilian employees into
overseas positions. In particular, Plaintiffs assert that: (1)
the five-year policy applies only to GS-12 positions or higher,
and thus, qualified and experienced replacements are difficult
to find; (2) the lengthy security clearance process and the
five-year limit deter candidates from applying; and (3) military
spouses — the group of employees DOD hopes to assist — lack the
credentials for the positions that will be made available.
Plaintiffs claim that as a result, DOD has already been forced
to consider signing bonuses to attract candidates to overseas
assignments and that those assignments will remain unfilled.
Again, the record reveals no evidence supporting Plaintiffs'
factual assertions. Furthermore, Defendant has offered evidence,
which Plaintiffs have not disputed, showing that Draft
Subchapter 1230 applies to a wide range of grade levels,
including those positions lower than GS-12; that military
spouses are competitive for these positions; that overseas tours
of duty assist in career development; and that on the whole,
U.S.-based civilian employees have better access to training
than their counterparts stationed overseas. See Disney Decl. ¶¶
Third, Plaintiffs argue that Draft Subchapter 1230 constitutes
a form of age-discrimination because it will have a
disproportionate impact on older employees. Again, Plaintiffs
present no competent
evidence substantiating this claim.*fn8 Furthermore, Draft
Subchapter 1230 applies equally to all non-exempt employees
regardless of age, applies to all positions below the GS-6
level, not only to higher level positions likely to be held by
senior employees, and was drafted by DOD for reasons entirely
unrelated to age. See id. ¶¶ 12-16; Def.'s Mot. at Exs. 5, 8.
Fourth, Plaintiffs complain that the draft policy is arbitrary
and capricious because employees forfeited their rights to
return to their previous positions in the United States with the
understanding that their tours abroad would be indefinitely
extended. However, since 1966, DOD has consistently required all
persons recruited for career status positions overseas to sign a
rotation agreement providing that if employees wish to continue
working for DOD, they must either exercise their right to return
within five years or enroll in the Priority Placement Program
thereafter ("PPP").*fn9 See Compl. ¶ 13 & Ex. A; Answer ¶
Finally, Plaintiffs argue that Draft Subchapter 1230 is
arbitrary and capricious because it is not in compliance with
various laws and DOD Directives. Defendant, however, offers
uncontroverted evidence showing that Draft Subchapter 1230 was
developed in compliance with all applicable laws and DOD
First, contrary to Plaintiffs' assertion, the draft policy was
developed after consultation with the Civilian Personnel Policy
Council, as required by DOD Directive 1400.24 § 3.1 and DOD
1400.25-M Chapter 100 § B. 1.a. See Disney Decl. ¶ 9. Second,
the Draft Subchapter 1230 does not violate DOD's requirement
that civilian management authorities be delegated to the "lowest
practical level." See DOD 1400.24 § 3.8. Draft Subchapter 1230
reflects DOD's considered judgment that the major command level
is the lowest practical level at which objectivity in tour
extensions can be assured. See Disney Decl. ¶ 13.
Third, Plaintiffs have offered no evidence showing how Draft
Subchapter 1230 might violate DOD 1400.24 § 3.10, which concerns
"merit systems principles, equal compensation and employment
opportunities, and workforce diversity goals and objectives."
The policy does not discriminate against any particular group,
but rather, is aimed at ensuring that overseas rotations are
broadly available to a wider range of DOD employees. See
Disney Decl. ¶ 15.
Fourth, the policy is not an improper reduction in workforce
("Reduction in Force" or "RIF"). RIF occurs where an agency
terminates its employees to reduce the size of its work force.
See Tiltti v. Weise, 155 F.3d 596, 601 (2d Cir. 1998). Draft
Subchapter 1230 facilitates the rotation of personnel in
overseas positions; it does not eliminate positions nor reduce
the size of the workforce, and consequently, compliance with RIF
regulations is not required.
Finally, contrary to Plaintiffs' assertions, DASD (CPP) and
the Deputy Assistant Secretary of Defense for Force Management
Policy are vested with policy-making authority related to
personnel matters, and acted within the sphere of their
authority in developing Draft Subchapter 1230. See DOD
1400.25-M Chapter 100 § C.1.a & c.; DOD Directive 1400.25 § 4.1.
Given that the uncontroverted evidence establishes that DOD
acted reasonably in formulating Draft Subchapter 1230, and that
the Draft has a rational basis, the Court concludes that Draft
Subchapter 1230 is not arbitrary and capricious.
C. The Interim Guidance is Not Arbitrary and Capricious
Plaintiffs argue for the first time — in a footnote in their
Opposition to Defendant's Motion — that they are also
challenging the Interim Guidance, in addition to Draft
Subchapter 1230, as arbitrary and capricious. See Pls.' Opp'n
at 22 n. 7. Specifically, they contend that the Interim Guidance
changed the five-year policy because it provided that extensions
beyond the five-year limit would be granted only in "extremely
Plaintiffs' challenge to the Interim Guidance fails for
several reasons. First, the challenge is outside the scope of
this suit, as Plaintiffs have repeatedly represented that the
relief they seek is invalidation of Draft Subchapter 1230. See
Pls.' Notice of Mot. for Sum. J.; Pls.' Mot. at 1.
Second, because the Interim Guidance is DOD's interpretation
of its own rule, namely CPM Subchapter 301.4, it cannot be set
aside unless it is plainly erroneous or inconsistent with the
terms of the rule. See e.g., Davis v. Latschar, 202 F.3d 359,
365 (D.C.Cir. 2000). The Interim Guidance is clearly not
inconsistent with CPM 301.4. In fact, the Interim Guidance
expressly reaffirmed that CPM Subchapter 301.4 set forth the
criteria for granting extensions. See Def.'s Mot. at Ex. 5.
Moreover, even though the Interim Guidance states that
extensions should be "extremely rare," this language is
consistent with CPM Subchapter 301.4, which provides for the
discretionary grant of extensions based on evolving staffing
needs. See Disney Decl. ¶¶ 4, 7-8. Indeed, the number of
extensions granted pursuant to the five-year policy has always
fluctuated depending on mission needs, and the liberal grant of
extensions Plaintiffs urge has never been the policy or the
Finally, even if the "extremely rare" language were to
constitute a change in the long-term policy with respect to
extensions, the Interim Guidance is not arbitrary or capricious
for the reasons articulated in section III. B supra. That is,
the Interim Guidance is a reasonable response to: (1) the
decline in the number of overseas positions as a result of the
drawdown of active duty forces; and (2) DOD's goals to provide
overseas employment opportunities and career development for
civilian employees based in the United States; to increase
employment opportunities for spouses of military members; and to
ensure that civilian employees maintain their professional
skills, especially technology skills. In view of these
the Interim Guidance cannot be considered arbitrary and
For all the foregoing reasons, Plaintiffs' Motion for Summary
Judgment is defied, and Defendant's Cross-Motion for Summary
Judgment is granted. An Order will issue with this Opinion.
The matter is before the Court on Plaintiffs' Motion for
Summary Judgment and Defendant's Cross Motion to Dismiss, or in
the Alternative, for Summary Judgment. Upon consideration of the
motions, oppositions, replies, and the entire record herein, for
the reasons stated in the accompanying Memorandum Opinion, it is
ORDERED, that Plaintiffs' request for jurisdictional discovery
is denied; it is further
ORDERED, that Plaintiffs' Motion for Summary Judgment is
denied [# 26]; it is further
ORDERED, that Defendant's Cross Motion to Dismiss, or in the
Alternative, for Summary Judgment [# 34], is granted