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OCONUS DOD EMPLOYEE ROTATION ACTION GROUP v. COHEN

March 27, 2001

OCONUS DOD EMPLOYEE ROTATION ACTION GROUP, ET AL., PLAINTIFFS,
V.
WILLIAM S. COHEN, SECRETARY, DEPARTMENT OF DEFENSE, DEFENDANT.



The opinion of the court was delivered by: Kessler, District Judge.

    MEMORANDUM OPINION

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.

I. BACKGROUND*fn1

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 developed.*fn5

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.

II. STANDARD OF REVIEW

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. 56(c).

III. ANALYSIS

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. ยง 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, ...


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