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KLEIN v. OFFICE OF PERSONNEL MGMT.

November 2, 1983

ARTHUR KLEIN, Plaintiff,
v.
OFFICE OF PERSONNEL MANAGEMENT, DONALD J. DEVINE, DIRECTOR, OFFICE OF PERSONNEL MANAGEMENT AND UNITED STATES OF AMERICA, Defendants



The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

 McLAUGHLIN, District Judge

 Plaintiff has moved for an order directing defendants to answer interrogatories. Fed. R. Civ. P. 37. Defendant has cross-moved to stay discovery and to dismiss the complaint. Fed. R. Civ. P. 12(b)(1), (6). Because I find that the complaint should be dismissed, I need not reach the discovery question.

 FACTS

 Plaintiff is a lawyer employed as an attorney-advisor with the Social Security Administration ("SSA"). In November, 1981, plaintiff applied for certification to the register of qualified Administrative Law Judges ("ALJ") from which federal agencies select individuals to fill ALJ vacancies. The procedures governing certification as an ALJ are enumerated in Civil Service Commission Announcement No. 318 (Complaint, Ex. C). Announcement No. 318 states that only experience within the seven years immediately preceding the application is relevant to the determination whether an applicant is qualified to be placed on the register. During this seven-year period, the applicant must have at least one year of qualifying experience equivalent to work at civil service grade level GS-14.

 From September, 1973 to July, 1975, plaintiff was employed as a Hearing Officer at the New York City Rent Control Commission. Plaintiff worked from August, 1975 to the date of his application as an attorney-advisor at SSA, in civil service grade levels GS-11 and GS-12. Plaintiff submitted with his application numerous letters of recommendation and an affidavit of Hon. Philip T. Brown, Chief Administrative Law Judge, detailing the duties and responsibilities of attorney-advisors in plaintiff's position.

 The Office of Administrative Law Judges ("OALJ") of the Office of Personnel Management ("OPM") found that plaintiff had not satisfied the qualifying experience requirement for placement on the register of qualified ALJs. Neither of the positions held by plaintiff during the seven-year qualification period was deemed sufficient to meet the requirement of experience at GS-14 or its equivalent. Furthermore, plaintiff failed in several respects to comply with the application requirements. First, he did not include with his application a complete list of cases proving two full years of administrative law or trial experience within the seven-year qualification period. Second, plaintiff failed to submit the detailed information required for his two most important cases. (Letter of Edward T. Rhodes to Arthur Klein, Dec. 27, 1982, Complaint Ex. K).

 The decision of the OALJ was affirmed by the ALJ Rating Appeals Panel ("Appeals Panel"). Plaintiff then filed this action.

 DISCUSSION

 Plaintiff is not entitled to judicial review of an agency's decision unless he has exhausted available administrative remedies. Weinberger v. Salfi, 422 U.S. 749, 765, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975). The Merit System Protections Board ("MSPB") is the body charged with reviewing decisions of OPM, 5 U.S.C. §§ 1205, 2301, and review by MSPB of an OALJ decision would normally be required before instituting an action in district court. Accordingly, defendant argues that this court lacks jurisdiction over the action.

 In this instance, however, administrative review was not available to plaintiff. MSPB has no jurisdiction over plaintiff's complaint because plaintiff is not an employee of OPM and his challenge to the Appeals Panel's ruling does not fall within the ambit of 5 C.F.R. Part 300. Thus, plaintiff exhausted his administrative remedies when the Appeals Panel affirmed the OALJ's denial of his application. This court, therefore, has jurisdiction over the action.

 Plaintiff seeks of a writ of mandamus, 28 U.S.C. § 1361, directing his certification as an ALJ. Mandamus, however, may issue only when there is a plainly defined and peremptory duty on defendant's part to do the act in question; and the act must be ministerial, devoid of the exercise of judgment or discretion. Corace v. Butterfield, 387 F. Supp. 446, 448 (E.D.N.Y. 1975).

 OPM has the authority "to establish standards with respect to citizenship, age, education, training and experience . . . which applicants must meet to be admitted to or rated in examinations." 5 C.F.R. § 2.1(a). As the Supreme Court recognized in Ramspeck v. Federal Trial Examiners Conf., 345 U.S. 128, 97 L. Ed. 872, 73 S. Ct. 570 (1953), application of these criteria to specific cases involves judgment and subjective determinations:

 
These specifications of necessity must be subjective. They are not based so much on evidence as on judgment. It is a discriminating judgment and one Congress committed to the experience and ...

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