duty in Bombay, India. Notwithstanding the prohibitory language of section 309, therefore, the Agency interpreted the Board's remedial powers as including grants of extensions beyond the limited five-year period. This court not only agrees with the Agency's interpretation of section 309, but also concludes by analogy, and for the reasons stated above, that the Board can recommend tenure in exceptional cases and the Secretary can implement such recommendations despite the language of section 306 indicating that recommendations are made solely by career member panels.
(4) The Standard -- The scope of review for agency action under the "arbitrary and capricious" standard is narrow. A reviewing court must determine whether the decision was "based on a consideration of the relevant factors and whether there has been a clear error of judgment . . . ." Citizens to Preserve Overton Park, 401 U.S. at 416; see Bowman Transp. v. Ark.-Best Freight System, 419 U.S. 281, 285, 42 L. Ed. 2d 447, 95 S. Ct. 438 (1974). As noted above section 306(b), 22 U.S.C. § 3946(b) does not prohibit implementation of a tenure recommendation by the Grievance Board. The Acting Director of the USIA incorrectly concluded that granting the Board's recommendation of tenure would be contrary to law. Furthermore, his interpretation of his statutory authority in this case is at variance with the State Department's actions in Ehrman, where the Department acknowledged the Board's authority to recommend tenure. Varying interpretations of statutory authority from case to case is a hallmark of arbitrary and capricious conduct. Use of the veto power against implementation of the Board's recommendation of tenure in this case consequently was not in accordance with law and the recommendation should have been implemented. 5 U.S.C. § 706(2)(A) (1982).
If an agency action is invalid or not in accordance with law and must be set aside, the preferred course for a reviewing court is to remand to the agency to allow it to remedy its original action. New England Coalition on Nuclear Poll. v. N.R.C., 234 U.S. App. D.C. 28, 727 F.2d 1127 (D.C. Cir. 1984); Williams v. Washington Metropolitan Area Transit Commission, 134 U.S. App. D.C. 342, 415 F.2d 922, 939-40 (D.C. Cir. 1968) (en banc), cert. denied, 393 U.S. 1081, 21 L. Ed. 2d 773, 89 S. Ct. 860 (1969). Only in unusual circumstances, not warranted here, should a court make a determination on behalf of an agency. Citizens to Preserve Overton Park, 401 U.S. at 416 (court should not substitute its judgment for that of the agency); Henderson v. United States, 580 F. Supp. 1010, 1014 (D.D.C. 1983). This matter is remanded, therefore, to the Acting Director of the USIA for implementation of the Board's recommendation in view of the fact that the recommendation is not contrary to law and would not affect adversely the foreign policy or national security of the United States.
(b) Attorney's Fees. The Grievance Board, in its August 13, 1982 decision, also denied the plaintiff an award of attorney's fees. The Board recognized its authority to pay reasonable attorney fees under section 1107(b)(5) of the Foreign Service Act of 1980, 22 U.S.C. 4137(b)(5) (1982), in accordance with the standards required by the Merit Systems Protection Board ("MSPB") under section 7701(g) of Title 5, but concluded that such an award was not warranted in the "interest of justice." Board Decision at 9-10.
Plaintiff argues that the Board ruled in an untimely manner by issuing its decision on attorney's fees in conjunction with its decision on the merits. Instead, plaintiff contends that the ruling on attorney's fees should be made subsequent to the decision on the merits to enable the prevailing party to make an intelligent argument in support of its request for fees. See Plaintiff's Memorandum at 22; see also Ehrman, C.A. No. 82-1984 at 9. Plaintiff also claims that the Board failed to apply the "interest of justice" standard fully and therefore applied it improperly. Plaintiff's Memorandum at 23.
An award of attorney's fees is a matter of discretion left to the Board considering the request under section 7701(g) and is not appropriate in every case in which a grievant prevails. See e.g., Sterner v. Department of Army, 711 F.2d 1563, 1568 (Fed. Cir. 1983); accord, Bennett v. Department of Navy, 699 F.2d 1140, 1146 (Fed. Cir. 1983). Section 7701(g) of Title 5 specifically states that "the Board . . . may require payment by the agency involved of reasonable attorney fees incurred . . . ." 5 U.S.C. § 7701(g)(1) (1982) (emphasis added). Moreover, the various criteria developed by the MSPB in its case law, see Allen v. U.S. Postal Service, 2 M.S.P.B. 582, 80 FMSR 7015 (1980) is merely illustrative of the "interest of justice" standard, and does not constitute an exclusive or mandatory list of factors to be considered.
Consequently, the Board did not act improperly by applying some but not all of the factors typically considered under the "interest of justice" standard, and the Board did not abuse its discretion or act not in accordance with law by concluding that an award of attorney's fees was not warranted in this case.
Nevertheless, in accordance with MSPB regulations, which the Board follows pursuant to 22 U.S.C. § 4137(b)(5) (1982), a request for attorney's fees is to be made within ten days after a decision on the merits becomes final and a ruling on such motion is made as an addendum to the final decision. 5 C.F.R. 1201.37(a)(2). In this case, the Board's decision on attorney's fees was made concomitant to its decision on the merits. By making these decisions simultaneously the Board deprived plaintiff, the prevailing party, of an opportunity to review the Board's decision and then make an intelligent argument requesting an award based on that decision. A party cannot be expected to argue for attorney's fees before it knows whether it has prevailed and on what basis. Accord, Ehrman, C.A. No. 82-1984, slip op. at 9 and n.9.
The matter of an attorney's fees award is remanded to the Board for reconsideration consistent with this opinion.
(c) The Promotion. In a supplementary motion, the plaintiff also requests that this court vacate the Board's decision to deny her a promotion and order that the defendant grant plaintiff a retroactive promotion. Plaintiff claims that the Board erred in denying her a promotion by failing to make findings of fact and conclusions of law as required by law, see 22 U.S.C. § 4137(a) (1982); 22 C.F.R. § 908.1; 3 F.A.M. (Foreign Affairs Manual) § 666.5a, and by applying an improper standard in determining this question.
In its August 13th decision, the Board stated simply that plaintiff "has not furnished any explanation as to why she considers herself entitled to promotion, and we find no proper basis in the Record for recommending her promotion." Board Decision at 9. Contrary to the Board's conclusion, plaintiff claims that the evidence before the Board provided a prima facie basis for the plaintiff's promotion. Memorandum of Points and Authorities in Support of Plaintiff's Supplementary Motion for Summary Judgment at 4 (hereinafter cited as Plaintiff's Supplementary Memorandum). Plaintiff also relies on the court's reasoning in Ehrman to conclude that the Agency's error was a "substantial factor" in her failure to be promoted because the same Agency errors responsible for plaintiff's lack of tenure also were responsible for her lack of promotion. Id. at 4-5. In Ehrman, the court concluded that "the nub of the Board's error was its failure to see that if plaintiff made out a case entitling him to tenure, his proof also entitled him to a promotion. Ehrman, C.A. No. 82-1984, slip op. at 5.
In response, defendants submit that the court in Ehrman is incorrect in fact and law. Supplemental Memorandum of Points and Authorities and Note of Argument in Support of Defendants' Supplemental Motion for Affirmance, and in Opposition to Plaintiff's Supplementary Motion for Summary Judgment at 5 (hereinafter cited as Defendants' Supplemental Memorandum). Defendants argue that here the Board's decision amounted to a finding that the plaintiff failed to sustain her burden of proof. Id. at 4. Furthermore, defendants note that decisions to promote or award tenure are substantially different. While promotions are made on a comparative basis by ranking officers according to their actual performance in comparison with others, tenure is awarded on the basis of individual fitness and aptitude. Id. at 6. Defendants therefore note that no one is "entitled" to a promotion; even after one is comparatively ranked, promotions depend on the number of available vacancies. Although this court agrees with the defendants' contention that decisions regarding promotion and tenure differ substantially, it disagrees with the claim that the Board's denial of a promotion was tantamount to a finding that plaintiff did not meet her burden of proof.
The Board's conclusory statement denying the plaintiff a promotion because of the plaintiff's alleged failure to explain why she is entitled to such relief is flawed in two respects. First, it contravenes 3 F.A.M. § 666.5a, which requires the Board to include findings of fact and the reasons for its decision. See Henderson, 580 F. Supp. at 1014. Second, if the Board did not apply the proper standard of proof to this issue its action is not in accordance with law. 5 U.S.C. § 706(2)(A) (1982). Promotion decisions ordinarily involve two burdens of proof. Here the Board failed to explain whether the plaintiff had met the initial burden of showing that the Agency's action "was a substantial factor in her failure to be promoted." Reiner v. United States, 222 U.S. App. D.C. 391, 686 F.2d 1017, 1021 (C.A.D.C. 1982) (quoting Reiner v. United States, C.A. No. 78-0616 (D.D.C. 1979), slip op. at 7). If the plaintiff had made such a showing, the burden should have shifted to the Agency to establish "by a preponderance of the evidence that, even in the absence of the . . . error, plaintiff would not have been promoted." Id.
It is unclear from the Board's conclusory statement whether it applied the appropriate standards of proof to the issue of promotion in accordance with law, 5 U.S.C. § 706(2)(A), and plaintiff failed to meet her burden, or whether the Board failed to apply the proper standards. If the Board concluded that plaintiff failed to meet her burden, then the burden did not shift to the defendant, and the Board properly denied plaintiff a promotion. Regardless whether the Board acted properly in this instance, its failure to include findings of fact and reasons for its decision to deny the promotion violates 3 F.A.M. § 666.5a, 22 C.F.R. 908.1, and 22 U.S.C. 4137(a).
Plaintiff requests that this court grant her relief by ordering that the defendant promote her retroactively to May 26, 1982. Rather than substitute our judgment for that of the Board, or second guess whether the Board applied the proper standards, the more appropriate remedy is to remand to allow the Board an opportunity to remedy its initial decision consistent with this opinion and in accordance with 3 F.A.M. § 666.5a and the Reiner standards. See Henderson, 580 F. Supp. at 1014.
Upon consideration of the papers submitted by both parties, the entire record herein, and for the reasons stated in the accompanying memorandum, it is hereby
ORDERED that plaintiff's motion for summary judgment is granted in part; and further
ORDERED that this case be remanded to the defendant Acting Director of the United States Information Agency in order that he shall implement the Foreign Service Grievance Board's August 13, 1982 recommendation to grant the plaintiff tenure; and further
ORDERED that this case be remanded to the defendant in order that he shall allow the Foreign Service Grievance Board to resolve the questions of attorney's fees and promotion, in a manner consistent with this opinion.