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May 26, 1995

SHIRLEY CHATER, Commissioner of the Social Security Administration, Defendant.

The opinion of the court was delivered by: EDWARD A. INFANTE

 I. Introduction and Background

 This is an employment discrimination lawsuit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). Plaintiff T. Patrick Hannon *fn1" complains that he was passed over for an administrative law judge ("ALJ") position in the Social Security Administration ("SSA") because he is a white male.

 Presently before the Court are the parties' cross-motions for summary judgment, and Hannon's motion for leave to amend his Complaint so as to assert a claim for violation of the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq. Having considered all matters of record, *fn2" the cross-motions for summary judgment are granted in part and denied in part, and Hannon's motion for leave to amend is denied.

 II. Undisputed Facts

 A. Application for ALJ Position

 Plaintiff Hannon is a white male *fn3" who sought an administrative law judge position with the SSA. *fn4" In March 1993 the Office of Hearing and Appeals ("OHA"), within the SSA, submitted a request for ALJ candidates to the Office of personnel Management ("OPM"). *fn5" OPM produced a list of 135 ALJ candidates, designated as "Amended Certificate AJ-93-05". *fn6" By regulation, in filling a given ALJ position, OHA must select from the top three candidates on the OPM list for each such position. *fn7" After an individual listed on an OPM certificate is passed over for three ALJ positions, the applicant is not eligible to be considered for another ALJ position. *fn8" Hannon was ranked, or "rated" in the Government's terminology, 48th of the 135 candidates considered by OHA for ALJ positions nation-wide; Hannon's aggregate score was 88.75, compared with a top score of 97.92 (rated 1/135) and a bottom score of 85.94 (rated 135/135). *fn9" The ratings broadly comprise four components:

"[1] [a] supplemental qualification statement where [the applicant] describe[s] [his or her] experience, [2] [a] written demonstration exercise where [the applicant] analyze[s] a case, [3] . . . a reference check that's sent out to people familiar with the applicant's work, and [4] . . . a panel interview with a judge and an attorney and an OPM official usually moderates that panel." *fn10"

 The criteria for OPM's ratings are not otherwise established by the parties. *fn11"

 Hannon sought a position in California, within which ALJ positions were available in Downey, Los Angeles, Oakland, Pasadena, San Bernadino, San Jose, and San Rafael. *fn12" Consistent with the regulations, and within OPM's discretion, Hannon was considered for three positions: (1) position seven in Los Angeles, for which he was the second-rated candidate; (2) position twelve in Los Angeles, for which he was the top-rated candidate; and (3) position sixteen in San Bernadino, for which he was the second-rated candidate. *fn13"

 In or about June 1993, OHA announced its selections. Hannon was not selected for any of these three positions. *fn14" "Higher-rated" white males were chosen for positions number seven and sixteen. *fn15" A lower-rated white female, who scored 88.48 (rated 54/135), was chosen for position number twelve in Los Angeles. *fn16"

 Jose Anglada, OHA's Deputy Chief ALJ, attests that he recommended the female candidate for selection because of her superior qualifications:

"[She] was selected for the position based on [her] wealth of judicial experience . . . [Her] work as a temporary judge was extensive and varied. Her ability to work in a high volume adjudicatory setting was especially valued because OHA is the system of federal administrative adjudication with the largest volume cases. [P] In addition to her judicial experience, which I considered to be a valuable and significant factor to her selection to the position, [she] had other legal experience which I considered favorably. While serving as a temporary judge, [she] was also an adjunct law professor and taught a juvenile law course at Southwestern University School of Law in Los Angeles. She had prior work experience as a senior judicial attorney for the California Court of Appeals, as a deputy city prosecutor in Pasadena, an associate editor for the Lawyers Co-operative Publishing Co., and an author of a number of articles in bar association publications. In sum, [she] presented to us a candidate with a rich and varied combination of demonstrated judicial skills, academic and scholarly credentials and practical experience . . . [P] While I did not personally interview [her], prior to making my recommendations for selections, I discussed her interview with [the ALJs] who conducted the interview. [One ALJ] advised that [she] presented herself extremely well during the interview and showed that she is a person well equipped to handle the administrative law judge position. . . . We were also informed from our check of her references that the people that she worked with thought she was 'great'. . . . Her interview and her experience and background made her a very attractive candidate." *fn17"

 The unstated implication is that these qualities were not measured in her "rating", which, as noted, fell below Hannon's top rating. *fn18" Indeed, Anglada concedes in his declaration:

"While her experience and interview were the most important factors in my recommending her for the position, the fact that she was a women [sic] was a factor in her favor as well. While the numbers and percentages have fluctuated over the years, our corps of ALJs has been, and is now, predominately white males. Our latest statistics show we have 1034 ALJs; of that total, 84.14 [percent] are white males. We are interested in attracting qualified women and other unrepresented minorities to the OHA so that our ALJ corps represents the widest range of life experiences that truly reflect the society we live in. . . . Regardless of gender, it is my opinion that she was an excellent candidate based on her experience and personal skills as reflected in her interview. The fact that she is a female only heightened our interest in her."19

 The female applicant declined the offer of position twelve in Los Angeles, and the OHA, within its discretion, "did not choose anyone else for that position from Certificate AJ-93-05". *fn20"

 B. OHA's Affirmative Action Plan

 In September 1988, the OHA adopted an "Affirmative Employment Program Plan" for recruiting minority and women employees, including ALJs. *fn21" There is no evidence that OHA's Affirmative Action Plan, a sixty-five page written document, was implemented to remedy past discrimination against women or minorities. *fn22" According to the plan, however, an "analysis" of the OHA's workforce pertinently revealed a "manifest imbalance" disfavoring white and black females among OHA's "professional" employees. *fn23" Further, the analysis showed a "conspicuous absence" of white, black, Asian and American Indian females and Asian males among the ALJ corps. *fn24"

 The Affirmative Action Plan states its "objective" to increase over a five-year period the numbers of black, Asian and American Indian women, and Asian men, who are ALJs by varying specified percentages. *fn25" The plan was amended in 1990 to provide for an objective of increasing the percentage of white women by five percent over the ensuing three years. *fn26" The plan also indicates a "desire" to increase the "low application rate for all minority and female EEO groups for the position of Administrative Law Judge". *fn27" Finally, in its "program evaluation", the Affirmative Action Plan concludes:

"OHA has an affirmative action plan in place to increase the representation of women, minorities, and handicapped among our ALJ corps. That plan consists of identifying women, minority and handicapped attorney organizations, and distributing recruitment information at meetings and conferences sponsored by these groups. Our plan also includes a cooperative effort with the Office of Personnel Management (OPM) to improve opportunities for OHA supervisory staff attorneys who are interested in applying for Administrative Law Judge positions. Because OPM and not OHA controls the qualifications and ranking process for ALJ positions, our role is limited to reaching out to inform potential applicants about ALJ employment opportunities at OHA and OPM's application process."28

 The Affirmative Action Plan lacks an express termination date, and it is not certain whether it remained in effect in 1993. *fn29" The Government admits, however, that the OHA did not rely on the Affirmative Action Plan in bypassing Hannon for ALJ position twelve in favor of a female candidate. *fn30"

 C. Exhaustion of Administrative Remedies

 On August 13, 1993, Hannon filed an informal complaint with OHA's Equal Employment Opportunity ("EEO") counselor. *fn31" "The informal complaint failed to redress plaintiff's grievances", *fn32" and so, on November 20, 1993, Hannon filed a formal administrative complaint with the Department of Health and Human Services ("HHS"). *fn33" The administrative complaint avers, inter alia, that Hannon was discriminated against on the basis of gender:

". . . I was discriminated against because I am a male. I was not chosen so that one female would be among the . . . successful ALJ candidates even though I was ranked first and the woman was ranker [sic] third. If OHA had not selected this one token woman at my expense, there would have been no women chosen. I was a victim of OHA's window dressing." *fn34"

  Hannon also filed a "Form HHS 652 Final EEO Counseling Report", dated November 12, 1993, together with his administrative complaint. *fn35" The Form HHS 652 contains a "description" of the administrative complaint prepared by the EEO counselor, which pertinently states:

"Mr. Hannon feels he is being discriminated against because he is a White Male. He has heard the [unspecified] agency is out to hire women and minorities, although no one will officially admit this or say it on record. . . ." *fn36"

 On January 21, 1994, HHS acknowledged receipt of the administrative complaint. *fn37" On some indeterminate date, a summary administrative investigation report was prepared. *fn38" The summary report specifically notes: "Complainant's 'point score' on the register was 88.75. The [competing] female's was 88.48." *fn39" Nonetheless, the summary report states that the investigation had "adduced no evidence which would sustain Complainant's allegations". *fn40" The summary report is silent regarding the impact of OHA's Affirmative Action Plan.

 III. Discussion

 A. Summary Judgment Standard

 Summary judgment shall be entered if "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). The substantive law determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510 91 L. Ed. 2d 202 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.

 The test used to determine whether the summary judgment motion should be granted mirrors the standard for a directed verdict: "the trial judge must direct a verdict, if under the governing law, there can be but one reasonable conclusion as to the verdict." Id. at 2511. Thus, "where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial' under Rule 56(c)." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). However, "credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts, are jury functions, not those of a judge [when] he is ruling on a motion for summary judgment." Anderson, supra, 106 S. Ct. at 2513.

 "Rule 56(c) mandates the entry of summary judgment . . . against a party who 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, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986) (emphasis added). Here, the adverse parties have brought directly competing motions for summary judgment, but they do not stand on identical footing. Hannon will bear ...

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