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COLM v. KISSINGER

December 17, 1975

PETER W. COLM, ET AL., Plaintiffs,
v.
HENRY KISSINGER, Defendant



The opinion of the court was delivered by: GASCH

 In this action, two former Foreign Service officers challenge their involuntary retirements from the Service. The plaintiffs, Peter Colm and John McIntyre, were selected out of the Foreign Service when they failed to be promoted within the period of time then prescribed by State Department regulations for officers of their class. They allege that the personnel files relied upon by the selection boards determining whether they would be promoted contained adverse and improper material to which they were denied access and to which, therefore, they could not respond. This procedure, they claim, has deprived them of property without due process of law in violation of the Fifth Amendment of the Constitution. Plaintiffs seek: (1) a declaratory judgment that their involuntary retirements were contrary to law; (2) reinstatement in the Foreign Service; and (3) an impartial administrative hearing to determine the propriety of their involuntary retirements.

 The defendant, the Secretary of State, interposes the equitable defense of laches and alternatively argues on the merits that plaintiffs were not denied due process of law, because they were not deprived of any property interest. Before the Court at this stage of the litigation is plaintiffs' motion for summary judgment and defendant's motion to dismiss or in the alternative for summary judgment. On the basis of the pleadings, memoranda, affidavits, exhibits and oral argument of the parties, and for the reasons to be outlined in this Memorandum, the Court finds that on the merits the defendant is entitled to summary judgment. *fn1"

 Background

 The Foreign Service Act of 1946, as amended, *fn2" provides for selection-out of the Service on time-in-class grounds and on substandard performance grounds:

 
Sec. 633(a). The Secretary shall prescribe regulations concerning --
 
(1) the maximum period during which any Foreign Service officer below the class of career minister shall be permitted to remain in class without promotion; and
 
(2) the standard of performance which any such officer must maintain to remain in the Service.
 
(b) Any Foreign Service officer below the class of career minister who does not receive a promotion to a higher class within the specified period or who fails to meet the standard of performance required of officers of his class shall be retired from the Service and receive benefits in accordance with the provisions of section 634 [ 22 U.S.C. § 1004] of this title. *fn3"

 The selection-out for time-in-class, § 633(a)(1) of the Act *fn4" is in essence an "up or out" system. Either the Foreign Service officer is promoted to the next class within the specified time period or he is involuntarily retired. The Congressional purpose behind this system is to develop an "elite corps" of men and women capable of serving at the highest levels of the Foreign Service. An officer who has reached his highest level of performance in the middle grades does not belong in this group. When it is determined that he is unable to further develop or assume greater responsibilities, there is no place for the officer in the Service. His separation is accomplished by the "promotion-up or selection-out" system. *fn5"

 Plaintiff Colm entered the Foreign Service on September 19, 1960, as a Class 4 officer. Plaintiff McIntyre entered as a Class 6 officer on August 14, 1955, was promoted to Class 5 on January 29, 1957, and to Class 4 on April 7, 1962. The maximum time-in-class for Class 4 officers was eight years during plaintiffs' service. Not having been promoted in that time, Colm was involuntarily retired on September 20, 1968, and McIntyre on November 15, 1970.

 Promotion of a Foreign Service officer is determined by his comparative ranking against all other officers in his class. The performance of each Foreign Service officer is evaluated annually by his supervisors according to precise and clear criteria established by the Department of State and generally made known to the members of the Foreign Service. *fn6" These reports plus other documentation relating to an officer's performance constitute his "performance file." In accordance with the Foreign Service Act, § 623, *fn7" Selection Boards are convened annually to review each officer's performance file and to rank that officer in comparison with his peers on the basis of relative merit.

 It is the administrative management of the Department of State, however, that determines the number of officers in each class to be promoted. When compiling rank-order lists of officers, the Selection Boards do not know the cut-off point above which all officers so ranked will be nominated for promotion.

 The fact, then, that an officer is selected out on time-in-class grounds does not mean that his performance has been unsatisfactory, nor even that it has not been above average. Rather, it reflects the fact that during the years in his class ...


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