565 F. Supp. 200 | D.D.C. | 1982
MEMORANDUM
Plaintiff, a lawyer employed by the Division of Advice in the National Labor Relations Board’s Office of General Counsel, brought this action to set aside decisions of the Office of Personnel Management (“OPM”) that have precluded him from eligibility for appointment as an administrative law judge (“ALJ”) by various federal agencies. See 5 U.S.C. § 3105, 5 C.F.R. § 930.203(a) (1981). On August 17, 1979, plaintiff had filed an application with OPM’s Office of Administrative Law Judges for eligibility certification and placement on the ALJ register. By letter dated September 4, 1980, the Office of Administrative Law Judges advised plaintiff he had been rated ineligible. After unsuccessful appeal of the determination of the Office of Administrative Law Judges to OPM’s Administrative Law Judge Rating Appeals Panel, plaintiff commenced this action for review of final agency action under the Administrative Procedure Act, 5 U.S.C. §§ 701-06. Invoking the Court’s jurisdiction inter alia under 28 U.S.C. §§ 1331, 1361, he seeks an order declaring the decisions adverse to his application to be unlawful and compelling OPM to allow him to take the final examination required for certification of eligibility for appointment as an ALJ.
The matter is now before the Court on cross-motions for summary judgment. Subject-matter jurisdiction is not contested by defendants, and it appears the
Announcement No. 318 issued by OPM in October 1979
Those facts, basic to the administrative decision and its rationale, are not disputed. Plaintiff claims, however, that at least two persons previously certified as eligible for placement on the ALJ register received credit for their time in the Advice Division of the Office of General Counsel. Defendants vigorously dispute this claim and argue that it is not supported by evidence in the administrative record. In papers filed September 25, 1981, plaintiff sought “leave to vertify assertions of fact” respecting this “historical” practice of OPM in granting full credit for Advice-Division work.
The record does contain a memorandum from two Administrative Law Judges urging OPM to consider Advice Division experience to be qualifying litigation experience. But the letter does not question the wisdom of a particular decision, in a case like the present one, that experience limited to work like that done by plaintiff would not alone suffice under Announcement No. 318. See A.R. 80-83. OPM would be entitled in any event to weigh that memorandum with the rest of the evidence, and the Court cannot say that rejection of the memorandum’s position by OPM, in the exercise of its expertise, would be arbitrary or capricious. Certainly, the Court could not, with this record, overturn OPM’s refusal to employ a mechanical rule that would grant, or deny, full credit for any work done in the Advice Division. See A.R. 85. Plaintiff suggests no evidence of invidious discrimination against him, only a refusal to grant him full credit for his Advice-Division work. Review of the full administrative record discloses no manipulation of OPM’s evaluation procedure by any participant in the decisions. All the record discloses is that plaintiff believes his interpretation of Announcement No. 318’s criteria to be superior to that of OPM. He can therefore obtain no relief here.
. The practice of OPM is to exclude from the final stages of evaluation persons who do not meet the minimum criteria of experience and past professional attainment. See Administra
. Filed in the Administrative Record at A.R. 504.
. The Court deems that filing to be a motion under Rule 56(f), Fed.R.Civ.P., for purposes of this disposition of defendants’ motion for summary judgment.
. No agency records pertinent to plaintiffs claims relating to the two individuals had been located by OPM or produced by plaintiff or the Labor Board at the time the Administrative Record was filed in this action.
. Defendants argue that plaintiffs “points” deficiency would be an independent basis for denying him the opportunity to take the final examinations. The Court, however, rests its disposition of the summary judgment motions directly on the rationality of the OPM determinations respecting litigation experience and the substantiality of the evidence supporting those determinations.