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LINDSAY v. KISSINGER

December 12, 1973

Philip LINDSAY et al., Plaintiffs,
v.
Henry A. KISSINGER et al., Defendants


Gesell, District Judge.


The opinion of the court was delivered by: GESELL

GESELL, District Judge.

When officers appointed to the Foreign Service or to the United States Information Agency are found to have failed to meet minimum standards of performance they may be involuntarily retired for the good of the Service pursuant to the Foreign Service Act of 1946. Plaintiffs in this class action sue on behalf of approximately ten such officers still scheduled to be so "selected out" at the end of this year. It is claimed that the procedures and regulations of the Department of State under which such officers are chosen for separation are unduly vague and violate due process. This constitutional claim comes before the Court on the merits following extensive pretrial proceedings. *fn1" The controlling facts are not disputed and the decision hinges on essentially legal considerations.

 The principal claim advanced centers around plaintiffs' contention that officers facing separation under the selection out procedures are denied adequate notice and adequate opportunity to be heard in that they do not always receive adequate notice of the charges against them and may not call favorable witnesses, confront adverse witnesses or employ counsel.

 Defendants have consented to the certification of plaintiffs' class for the purpose of challenging the current selection out regulations. Since the Court finds that plaintiffs can adequately represent the suggested class in an action for injunctive relief and that the other requirements of Rule 23(b) (2) of the Federal Rules of Civil Procedure are satisfied, certification will be granted.

 Congress, by appropriate legislation, determined some time ago that officers, once appointed, should not have permanent tenure but rather should be competitively ranked to the end that those officers failing to maintain minimum standards might be weeded out to promote the overall efficiency of the services in which they serve. Selection out procedures responsive to this legislation have been in effect for more than twenty years and have been constantly refined and improved. There is every indication that the Department has been sensitive to its obligations and has sought to proceed with care. The plaintiffs do not object to a selection out system as such, but they vigorously assert that it is administered unfairly because an officer facing separation is denied those rights to adequate notice and hearing that are guaranteed by the United States Constitution and are essential to a fair and equitable determination of his ultimate status.

 A brief review of the selection out procedures currently followed in the Foreign Service will delineate the setting in which these claims are asserted. These procedures are set forth in written precepts widely publicized throughout the Service and are virtually identical to those followed for officers appointed to the United States Information Agency (USIA).1a

 A Selection Board appointed each year annually reviews the performance of all Foreign Service Officers and ranks them. This is done to identify officers in the very bottom percentile of their classes and hence likely to be separated, as well as those in the top ranks of their grades to be considered eligible for promotion. These rankings are made on the basis of each officer's personnel file, which contains detailed periodic appraisals of his work by superiors. The Selection Board is specifically directed to designate for selection out those officers who fall within a specified low percentile in the rankings. The critical percentile varies from year-to-year, but is never greater than ten percent.

 Those officers so designated are advised in writing that they are subject to forced "involuntary retirement" before the calendar year ends. This notice includes a statement of the deficiencies in performance relied on by the Selection Board as the basis for its decision. The notices vary somewhat in form and content, some being more factual and some more impressionistic than others.

 An officer has complete access to his personnel file that was before the Selection Board. If he wishes to protest the decision, he may appear before a Special Review Panel, composed of a wholly different membership than the Selection Board, and offer mitigating information, including explanations and contravention of the facts specified in the selection out notice. The Special Review Panel may then recommend for or against selection out. *fn2"

 Plaintiffs' constitutional challenge to the adequacy of this procedure revolves around four main contentions:

 
(1) The officer may not see all materials relating to his case that were considered by the Selection Board.
 
(2) The Selection Board's statement of reasons, as provided with the selection out notice, is too general and hence uninformative.
 
(3) The Selection Board's determination is made without adequate standards, complicating the officer's attempt to perform his job in compliance with such standards.
 
(4) The Special Review Panel does not allow supporting or adverse witnesses to be called and ...

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