The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
The Association of Administrative Law Judges ("AALJ"), seven administrative law judges, and three attorneys (collectively "Plaintiffs") filed a five count Second Amended Complaint*fn1 against the U.S. Office of Personnel Management and its director, Linda Springer (collectively "OPM"). OPM moves to dismiss alleging that the claims are not justiciable due to lack of standing and ripeness. As explained below, the motion to dismiss will be granted in part and denied in part.
In Counts I, II, and III of the Second Amended Complaint, Plaintiffs challenge a Final Rule, 5 C.F.R. § 930.204(b), which requires sitting administrative law judges ("ALJs") to maintain in at least one jurisdiction an "active"*fn2 bar membership. Count IV sets forth a challenge to 5 C.F.R. § 930.201(f)(2), the new regulation authorizing federal agencies that employ ALJs to assign cases "in rotation so far as practicable." Count V challenges OPM's issuance of a Vacancy Announcement and Notice of Examination as arbitrary and capricious under § 706 of the Administrative Procedure Act ("APA").
OPM seeks dismissal of this case, asserting that Plaintiffs lack standing to bring Counts I, II, III, and V and that Count IV is not ripe. Plaintiffs oppose.
A. Federal Rule of Civil Procedure 12(b)(1)
Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938). No action of the parties can confer subject matter jurisdiction upon a federal court because subject matter jurisdiction is an Article III as well as a statutory requirement. Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003). Because subject matter jurisdiction focuses on the court's power to hear the claim, however, the court must give the plaintiff's factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state a claim. Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003). Moreover, a court is not limited to the allegations contained in the complaint. Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). To determine whether it has jurisdiction over the claim, a court may consider materials outside the pleadings. Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).
A plaintiff's standing under Article III of the United States Constitution must be determined in order to establish the jurisdiction of the Court to hear the case and reach the merits. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101 (1998); Grand Council of the Crees v. FERC, 198 F.3d 950, 954 (D.C. Cir. 2000). "Standing focuses on the complaining party to determine 'whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.'" Am. Legal Found. v. FCC, 808 F.2d 84, 88 (D.C. Cir. 1987) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). To have Article III standing, a plaintiff must establish: "(1) [he] has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). The injury alleged cannot be conjectural, hypothetical, remote, speculative or abstract; it must have occurred or be certainly impending. Nat'l Treasury Employees Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996).
In addition to the standing requirement, jurisdiction requires that a claim be ripe for decision. Under the Constitution, federal courts are limited to deciding "actual, ongoing controversies." Honig v. Doe, 484 U.S. 305, 317 (1988). To show that a claim is ripe, a plaintiff must demonstrate (1) the fitness of the issues for judicial decision, and (2) the hardship to the parties caused by withholding court consideration. Nat'l Treasury Employees Union v. Chertoff, 452 F.3d 839, 854 (D.C. Cir. 2006) (citing Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)). A claim "is not ripe for adjudication if it rests upon 'contingent future events that may not occur as anticipated, or indeed may not occur at all.'" Texas v. United States, 523 U.S. 296, 300 (1998) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985)). By requiring that claims be ripe before adjudicating them, courts promote judicial economy, avoid becoming entangled in abstract disputes, and ensure a record adequate to support an informed decision when a case is heard. Abbott Labs., 387 U.S. at 149.