The opinion of the court was delivered by: BRYANT
WILLIAM B. BRYANT, SENIOR UNITED STATES DISTRICT JUDGE
This action is before the court on plaintiff's motion and supplementary motion for summary judgment, and defendants' motion and supplementary motion for affirmance of the decisions of the Foreign Service Grievance Board ("Board") and the Acting Director of the United States Information Agency ("USIA" or the "Agency"). Having considered the papers submitted by both parties, the record of the case, and the oral argument held on these motions on August 20, 1985, the court grants in part and denies in part plaintiff's and defendants' motions.
In February 1978, the defendant USIA appointed the plaintiff as a Foreign Service Limited Reserve Officer. 22 U.S.C. § 922 (1976). The conditions of her appointment time-limited required that the defendant Agency terminate her employment if she were not tenured within five years from the date of appointment. Plaintiff's Statement of Material Facts Not in Dispute, Nos. 1, 2. See 22 U.S.C. § 3949 (1982).
Plaintiff's first overseas assignment was to Brazil as a Junior Officer Trainee. At the end of this post she received a promotion. Defendant next assigned plaintiff to Georgetown, Guyana as an Assistant Public Affairs Officer ("APAO"). During the early part of this assignment problems ensued between the plaintiff and her supervisor, the Public Affairs Officer ("PAO"). Because the PAO prevented the plaintiff from carrying out her responsibilities, she was transferred back to Washington, D.C. in April 1981, at least one year before the end of her expected term in Guyana. Prior to her transfer, plaintiff received a negative Officer Evaluation Report ("OER") from the supervising PAO. Memorandum of Points and Authorities in Support of Plaintiff's Motion for Summary Judgment (hereinafter cited as "Plaintiff's Memorandum") at 2.
After returning to Washington, plaintiff filed a formal grievance with the defendant Agency in which she complained that her OER from September 7, 1980 to April 24, 1981 was "totally biased, false and falsely prejudicial;" that she had been subjected to "ineffective, harassing, and hostile treatment" by her supervisor in Guyana causing a premature break in her assignment; that her career consequently suffered a severe setback; and that she had incurred certain expenses relating to her abrupt departure from post and her son's educational expenses. Plaintiff requested as remedies: "(1) removal of the OER; (2) extension of her uncommissioned appointment period by two years, during which she might compete for tenure; (3) promotion to Class FP-3; (4) reimbursement of her out-of-pocket expenses; (5) reimbursement of expenses connected with her son's education; and (6) disciplinary action against her supervisor in Guyana." Decision of the Foreign Service Grievance Board, Record of Proceedings No. G-82-003-ICA-1, at 1-2, Exhibit A of Complaint (hereinafter "Board Decision"). In response, the USIA Labor Relations Office agreed to expunge the negative OER in its entirety from plaintiff's file, but failed to find the evaluation falsely prejudicial. The Agency also agreed to try to reimburse plaintiff for her son's educational expenses. The Agency denied plaintiff all other relief requested. Notwithstanding the agreement to remove the report, Agency personnel forwarded the "expunged" OER to the Board of Examiners for the Foreign Service ("BEX"), which reviews files for the commissioning and tenuring of candidates. Plaintiff claimed that the Agency's error in forwarding the OER would prevent her from receiving a fair evaluation by the panel because subsequent removal could not cure the initial taint. After the OER was removed from plaintiff's file, the BEX informed her that the limited evaluations contained in her file made it inadvisable to form a qualifications evaluation panel on her behalf at that time. Plaintiff's Memorandum at 11.
In January 1982, plaintiff appealed the Agency's decision to the Foreign Service Grievance Board (the "Board"). In her grievance to the Board, plaintiff reiterated all of her complaints to the Agency regarding the OER, the educational matter, the failure of Agency officials to correct deficiencies in her housing, and interference by her superiors in Guyana with her "ability to grieve." Board Decision at 2. In addition to all of the remedies sought from the Agency, plaintiff also requested that the Board award her payment of attorney's fees and costs, an overseas assignment, and tenure. Id. At the time of the Board's consideration of her grievance, plaintiff was untenured and had only six months left of the five-year period in which to gain tenure. In its decision of August 13, 1982, the Board recommended to the defendant Agency that "tenure constitutes the relief necessary to overcome the wrong the grievant has sustained." Id. at 5. After reviewing the file, the Board concluded that "the Record in this case leaves no doubt that the Agency's transfer of the grievant from Guyana resulted from untenable working conditions which were not of the grievant's making." Id. The Board further found the removal of the OER from the plaintiff's file an insufficient remedy for the career damage sustained by the grievant, stating that "that remedy does not alter the effect of the abrupt curtailment of her assignment; it causes a gap in her performance record, thereby leaving undocumented a period of service which was crucial at that stage of her career . . . ." Id.
On the basis of the record before it, the Board found that other evaluations of plaintiff's work attested to her ability to have completed the Guyana assignment with excellent performance reports "under normal circumstances." The Board recommended that the Agency Director tenure plaintiff as of the date of its August 13, 1982 decision for two reasons. First, the Board found that plaintiff had been prevented from doing her job and thus from having an "opportunity to demonstrate her competence to function at the level of the job's responsibilities;" id., second, it found that plaintiff was the only untenured member of her 1978 entering class at the time of the Board's deliberations. The Board denied plaintiff's request for promotion and the payment of attorney's fees. Id. at 9-11.
A review of the entire record supports the Board's finding that the difficulties plaintiff encountered in Guyana, which resulted in her transfer and caused a significant gap in her career, were due to the failure of the PAO to exercise his supervisory role properly and were not the fault of the plaintiff. When Ms. Daniels first arrived in Guyana with her son, she was given substandard housing and was not provided with an emergency generator for use during the frequent blackouts. The PAO appears to have delayed rather than assisted with efforts to improve these conditions. Plaintiff alleges, and the record indicates, that the PAO failed or refused to allow the plaintiff authority commensurate with her responsibilities as an APAO. The PAO required, for example, that she seek his approval before making overseas telephone calls. In addition, the PAO openly expressed his lack of confidence in the plaintiff to her subordinates and ordered them to report directly to him, thus bypassing their superior, the APAO. Contrary to the PAO's negative OER, evaluations and reports of the plaintiff's conduct and performance in Guyana from other officials of the Agency, her subordinates, journalists, visitors, and officials of the Guyana government indicate that she engendered considerable respect and affection during her brief stay. The record suggests that the plaintiff demonstrated her ability to perform the duties of her office extremely well. Under the supervision of a PAO capable of dealing properly with a subordinate officer, plaintiff would have received an excellent rating. For the reasons stated below, this court agrees with the Board's recommendation of tenure and remands on the questions of promotion and attorney's fees.
In a letter dated September 13, 1982, the Acting Director of USIA informed plaintiff that section 306 of the Foreign Service Act of 1980, Pub. L. 96-465; October 17, 1980; 94 Stat. 2086, 22 U.S.C. § 3946, limited his authority to make career appointments to those based on recommendations of boards which have evaluated the fitness and aptitude of the career candidate. Consequently, the Acting Director refused to implement the tenure recommendation of the Grievance Board; instead, he offered to petition the Board to extend the period of plaintiff's limited extension appointment. Letter of Gilbert A. Robinson, Exhibit B of Complaint. In response to a joint petition from the parties, the Board granted the extension while preserving the plaintiff's right to seek judicial redress regarding its recommendation. Subsequently, plaintiff appealed to this court seeking a declaratory judgment and a writ of mandamus to reverse the decision of the USIA Acting Director and affirm in part and reverse in part the decision of the Board.
Jurisdiction over this action lies pursuant to 22 U.S.C. § 4140 (1982), which permits a party to seek judicial review of a final action of the Secretary or the Board on any grievance in accordance with the standards of Title 5 of the Administrative Procedure Act. 5 U.S.C. §§ 701 et seq. (1982). Challenges to agency action are governed by section 706(2)(A), which allows a court to hold unlawful and set aside agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) (1982).
(a) The Acting Director's Refusal to Implement the Decision of the Grievance Board. The Board recommended to the Agency Director that the plaintiff be tenured. The Agency rejected this recommendation. Plaintiff contends that the Board's decision to recommend, rather than order, the Agency to act was not in accordance with law. Instead, plaintiff argues that the statute on its face, sections 1107(b) and 1101, and the Agency's implied powers provide the Board authority to order tenure. See Health Systems of Oklahoma, Inc. v. Norman, 589 F.2d 486, 490 and n.6 (10th Cir. 1978); Plaintiff's Memorandum at 7-9. Defendant claims that it lacks authority to implement the Board's recommendation because only career member panels can recommend tenure. Defendants' Memorandum at 10.
Under Chapter 11 of the Foreign Service Act of 1980, a Grievance Board has jurisdiction to hear certain claims defined as grievances. 22 U.S.C. § 4131(a)(1). Some matters, including judgments of a tenure board established under section 3946(b) of Title 22, are excluded from the definition of a "grievance" and cannot be reviewed. All of the claims the plaintiff challenged in her grievance were proper grievances under section 1101(a)(1) and within the jurisdiction of the Board. The plaintiff did not challenge the judgment of a tenure board, which the Board statutorily cannot review. 22 U.S.C. § 4131(b)(2). In fact, ...