The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Plaintiffs filed a Third Amended Complaint against the U.S. Office of Personnel Management and its director, John Berry*fn1 (collectively "OPM"). In Count IV, Plaintiffs challenge as arbitrary and capricious under § 706 of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, OPM's issuance of a Qualification Standard for applicants for positions as administrative law judges ("ALJs"), OPM's notice to federal agencies that a vacancy announcement for ALJ positions would be posted soon, and OPM's imposition of a numerical cutoff for ALJ applications.*fn2 As explained below, summary judgment will be granted in favor of OPM. Plaintiffs lack standing to bring their claims challenging the Qualification Standard. Also, OPM's notice that a vacancy announcement would be posted soon was not final agency action subject to judicial review. Finally, the numerical cutoff was not arbitrary and capricious.
OPM has the authority to regulate the appointment of ALJs, including the authority to set qualification standards, to establish rules and procedures for hiring through competitive examination, and to create a register of qualified applicants from which other agencies can make appointments. 5 U.S.C. § 3301. Formerly, OPM managed the applicant pool for ALJ positions via ALJ Announcement 318, which set out the qualification standards for ALJs and described various aspects of the ALJ program including the testing process. OPM promulgated a Final Rule, effective April 19, 2007, which set out a new Qualification Standard for ALJs. See 72 Fed Reg. 12,947. The new Qualification Standard describes the ALJ application process as follows: (1) OPM screens applicants for meeting minimum qualifications; (2) OPM then invites those meeting the minimum qualifications to take a written exam and undergo an in-person evaluation; (3) OPM assigns each applicant a composite score and places those who meet or exceed a certain minimum score on a register (the "new register") for qualified applicants; and (4) agencies needing ALJs interview applicants from the new register. The Final Rule removed references to ALJ Announcement 318 and to the testing process, because, as OPM explained when the Rule was proposed, OPM sought greater flexibility to amend the process whenever appropriate without new rule-making. Id.; see also 70 Fed. Reg. 75,745, 75746 (Proposed Rule).
On May 4, 2007, OPM posted an ALJ Vacancy Announcement and Notice of Examination ("Vacancy Announcement") on its website to solicit individuals to apply to take the new ALJ examination so that OPM could create the new register. See Administrative Record ("AR")*fn3 at AALJ000005-29. Until OPM created the new register around November 2007, federal agencies could continue to hire from the old register. Id. at AALJ000002-3. The Vacancy Announcement stated that applications would be accepted until the earlier of May 18, 2007, or 11:59 p.m. on the date that OPM received 1250 applications. Id. at AALJ000005-6. OPM received 1250 applications on May 8, 2007, and closed the Vacancy Announcement at the end of that day. Id. at 000002-3.
Plaintiffs are the Association of Administrative Law Judges ("AALJ"), seven administrative law judges, and three private practice attorneys - Mary Rita Luecke, Russell Doty, and Ned Richardson. The private practice attorneys allege that they did not receive advance notice of the May 4, 2007 Vacancy Announcement. Third Am. Compl. [Dkt. # 20] ¶¶ 29-34. They assert that they were qualified to be applicants for the ALJ position, that they were unable to submit an application, and that if the application period were reopened, they would apply for the position. Id. They allege that they were not able to apply "due to the early closing of the application submission period." Id. ¶¶ 29, 31, & 33.
Plaintiffs make four distinct claims, two regarding the Qualification Standard and two regarding the Vacancy Announcement. First, Plaintiffs allege that the Qualification Standard created an ad hoc "notice-based" process which replaced the "rule-based" process under ALJ Announcement 318. Id. ¶ 95. Second, Plaintiffs contend that OPM should have "professionally developed" the Qualification Standard, as required by 5 C.F.R. § 300.103. Id. ¶ 99. Third, Plaintiffs allege that OPM gave advance notice to federal agencies that it would be issuing the ALJ Vacancy Announcement and that such advance notice gave preferential treatment to agency lawyers because they were able to take leave time from work to undertake the time-consuming application process whereas private practice attorneys were not. Id. ¶¶ 102-104, 106-109. Finally, Plaintiffs allege that the numerical cutoff and the short time frame for acceptance of applications set forth in the Vacancy Announcement was arbitrary and capricious.
Plaintiffs challenge both the Qualification Standard and the Vacancy Announcement under § 706 of the APA. Plaintiffs seek an order of the Court: (1) declaring the Vacancy Announcement void; (2) requiring OPM to undertake notice and comment rule-making for the purpose of creating a new ALJ vacancy announcement; and (3) enjoining OPM from providing advance notice to agencies of future ALJ vacancy announcements. OPM moves for summary judgment, contending that Plaintiffs lack standing to bring certain of their claims and that all of the claims fail on the merits. Plaintiffs filed a cross motion for summary judgment.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); see also Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
A. Plaintiffs Lack Standing to Bring Claims Challenging the Qualification Standard
Plaintiffs allege that OPM acted arbitrarily and capriciously by promulgating the new ALJ Qualification Standard. Prior to the new Qualification Standard, OPM regulations described the internal examining process and procedures for ALJ selection. OPM removed the detailed information from the regulation to give itself the flexibility to update the selection process "based on new technology and advances in the state of the art of examination methodology" without having to amend its regulations. 72 Fed. Reg. at 12951. Under the new ...