case, however, the plaintiffs merely assert that the OPM implementing regulations violated some subliminal and inchoate congressional intent.
Because neither Congress nor the OPM has promulgated substantive guidelines for the OPM to follow when adopting the FEPCA-implementing regulations, there is no law for the court to apply. FEPCA, the governing statute, is so broadly drawn that the court has no standard against which to measure the OPM's exercise of discretion. See Slyper v. Attorney General, 264 U.S. App. D.C. 170, 827 F.2d 821, 824 (D.C. Cir. 1987), cert. denied, 485 U.S. 941, 108 S. Ct. 1121, 99 L. Ed. 2d 281 (1988). Without reasonable precepts by which to judge the OPM's exercise of discretion, review of the OPM's actions would be a mere improvisational assessment of the fairness of the agency's action; Congress has not empowered the court to determine the wisdom of the OPM's decisions in the absence of controlling guidelines. See Kuhl v. Hampton, 451 F.2d 340, 342 (8th Cir. 1971) ("The federal courts . . . were not established to operate the administrative agencies of government").
Even if the OPM regulations were reviewable under the APA, the OPM asserts that they are not arbitrary, capricious, or contrary to law. In response to the OPM's argument, the plaintiffs claim that the merits of this position cannot be determined absent review of the full administrative record, which includes all documents and materials, including internal agency memoranda, guidelines or hearing transcripts, which were directly or indirectly considered by the OPM's decision makers. As a general rule, if an agency's actions are at all times governed by comprehensive and regulatory provisions that do not vest such action to the agency's discretion, the court must review the entire administrative record to ensure that the agency considered all relevant factors and demonstrated a rational connection between the facts found and the choices made. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416-417, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971); Lloyd v. Illinois Regional Transportation Authority, 548 F. Supp. 575, 589-90 (N.D. Ill. 1982). FEPCA, however, does not require the OPM to make any adjudication of factual issues prior to its enactment of the conversion regulations; instead, FEPCA simply required the OPM to determine, in accordance with OPM procedures, the appointment of incumbent ALJs to one of the newly-created pay levels. Therefore, if the administrative record explicates a rational basis for the OPM's decision, the record should be sufficient to permit a ruling under § 706 of the APA. Furthermore, a factual record is not necessary to resolve what is largely a legal issue raised by the plaintiffs. Knox County Hosp., 965 F.2d at 564.
Under § 706 of the APA, the court shall "hold unlawful and set aside agency actions, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The scope of review under the arbitrary and capricious standard is narrow, and the judgment of the court cannot be used as a substitute for that of the OPM. St. James Hosp. v. Heckler, 760 F.2d 1460, 1465 (7th Cir.), cert. denied, 474 U.S. 902, 106 S. Ct. 229, 88 L. Ed. 2d 228 (1985). Although deference is accorded to agency decisions, this deference will not shield an agency's action "from a thorough, probing, in-depth review." Overton Park, 401 U.S. at 415.
In accordance with the arbitrary and capricious standard, the court will uphold agency actions that are "rational, based on consideration of the relevant factors, and within the scope of the authority delegated to the agency by the statute." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 42, 77 L. Ed. 2d 443, 103 S. Ct. 2856 (1983). Because § 5372 specifically delegated to the OPM the authority to appoint ALJs to the new FEPCA-amended pay system, the only inquiry to be made in the instant case is whether the OPM's decision to base its conversion regulations on ALJs' level of pay under the General Schedule was "rational and consistent with the statute." Sullivan v. Everhart, 494 U.S. 83, 87, 108 L. Ed. 2d 72, 110 S. Ct. 960 (1990).
Aside from charging the OPM with the responsibility of appointing incumbent ALJs to their new positions under the FEPCA-amended pay system, § 7352 provides little guidance as to how to convert the twenty-five pay levels
under the General Schedule to the eight pay rates at three levels under FEPCA. The only restriction placed on the OPM was the requirement that the pay for each ALJ upon conversion be at least equal to the General Schedule rate payable to such ALJ immediately before the conversion.
Prior to adopting the final conversion regulations, the OPM solicited and received comments from eighteen ALJs, one chief ALJ, two members of Congress, and representatives of four ALJ associations. 57 Fed. Reg. 1367 (1992). Out of over 1,110 individual ALJs the OPM received comments from only eighteen, and most of these comments were objections to the single effective date of conversion. Although there was very little agreement among the commenting ALJs as to how to implement the conversion from the General Schedule to the new administrative law system, none of comments seemed to suggest the OPM use the individual ALJ's length of service as the implementing criterion. The National Conference of Administrative Law Judges ("NCALJ"), however, expressed the concerns espoused by the plaintiffs in the instant case: that Congress, by passing FEPCA, intended to eliminate pay disparity between GS-15 and GS-16 ALJs. Accordingly, the NCALJ recommended that OPM change the interim regulations to provide for conversion of all judges based on years of service as an ALJ rather than on the basis of their grade and step under the General Schedule.
According to the OPM's response to the interim regulation comments, it attempted to follow congressional intent as much as possible by "establishing a new pay system for administrative law judges that would be fair and equitable to the largest number of judges at the earliest practicable date and still be consistent with FEPCA provisions and long-standing personnel management practices regarding advancement." In explaining its rationale for adopting the interim conversion regulations without modification, the OPM remarked:
No one lost money under the conversion plan. . . . The new schedule ensured that each administrative law judge received a minimum increase of at least [eight] percent above the scheduled rate in effect in 1990. . . . The final plan converted judges at certain steps of GS-15 and GS-16 to one rate higher than previously allowed. It was not possible to provide equal pay increases to all administrative law judges. . . . Some judges of necessity fared better than others as a result of the pay conversion being made effective on the earliest possible date benefitting, overall, the most judges.