The opinion of the court was delivered by: SPORKIN
It is regrettable that the State Department has not been able to resolve this case on an administrative basis. The basic facts are not in dispute. Plaintiff entered the foreign service as a traveling courier in January, 1956. Although in the early stages of his career his promotions were rapid, plaintiff's promotion history dramatically changed in 1969, when his position was reclassified. Subsequent to the Department's 1969 reclassification, the plaintiff received no promotions until 1980. The Board found -- and defendant does not dispute -- that plaintiff's non-promotion travail was the result of the Department's failure to notify him of the effects of the 1969 reclassification.
In February 1980, plaintiff sought to remedy his plight by filing a grievance with the Department. Fifteen months later, the Department issued a decision denying his grievance. Plaintiff promptly appealed the adverse action to the Board, which found for him on the merits but declined to provide him any relief. Concerning the merits of his complaint, the Board found that the plaintiff was diligent in attempting to obtain career advancement, but was thwarted in his efforts by the Department. Specifically, the Board wrote:
The record contains abundant evidence that the Department felt a general responsibility to inform employees about personnel changes that were being made and that were being proposed in connection with efforts to reform the personnel system: articles were published in the Department's newsletter, open meetings were held at which questions could be asked, employees were urged to seek out counselors and inform themselves about career opportunities. The evidence is that Koorkanian responded in appropriate ways to such general information about career advancement: he consulted many people about his failure to gain promotion, including his supervisors and the career counselor designated to counsel couriers; he applied for the FAS [Foreign Affairs Specialist] program and was given an FSRU [Foreign Service Reserve Unlimited] appointment; he considered other specialties outside the courier field. He was in the dark, however, about one crucial matter: no promotional opportunities existed in his personal skill code group because they had been totally removed in 1969. Koorkanian testified . . . that he was never told that the Department had transferred the opportunities to another category and that he was never informed of the need to change his personal skill code in order to compete for promotion. We accept his testimony on these points.
There is no question that when on numerous occasions he asked why he was not being promoted, he received answers that were relevant to the general question of why promotions for diplomatic couriers were slow: problems with "headroom" or "limited attrition" or budgetary constraints. But he never received from any management official the correct answer: that there were no promotion opportunities in the 2440 category after 1969 and that in order to be in the running, he would have to switch his personal skill code to 2421. He was, in short, misinformed and misled as to the true facts.
Record of Proceedings before the Foreign Service Grievance Board, No. G-81-041-State-30 (October 28, 1983) at 11-12 (citations omitted).
Despite the explicit findings that the plaintiff had been misled by the Department with respect to promotion opportunities over a period spanning many years, the Board -- using a unique procedure -- concluded that plaintiff would not have been promoted during the 1969-1980 period anyway and thus that he was entitled to no relief. Instead of reconvening Selection Boards to make this determination, the Board made the decision itself, after comparing plaintiff's personnel skills with those of persons who were promoted. The Board wrote:
Upon comparing the EERs of those promoted in 1977, 1978 and 1979 with grievant's EERs for the same periods, we find the Department's arguments persuasive that grievant would not have been promoted in those years if he had competed with those whose records were examined by this Board. We have not attempted to judge the relative ranking among those who were promoted nor have we attempted to judge how far away from promotability grievant might have been. We have simply determined that the total record of each person promoted was sufficiently superior to the total record of grievant that it is clear grievant would not have received one of the limited numbers of promotions available.
Record of Proceedings before the Foreign Service Grievance Board, No. G-81-041-State-30 (April 30, 1984) at 6.
According to papers filed with the Court by the government, this case is the first time the Department used this procedure to determine the appropriate remedy following a Board finding in a grievant's favor. "The Defendant . . . has been unable to find any case before the Foreign Service Grievance Board wherein the Board has reviewed the EER's [sic] of the individuals in the functional competition groups and made an independent assessment that the grievant would not have been selected for promotion." Def. Memorandum to the Court (January 14, 1987). Rather, the Board will typically remedy a wrongful nonpromotion by giving "the grievant the same promotions achieved by members of [his] 'class' with comparable Foreign Service records -- i.e., the promotions achieved by fellow officers who entered the Foreign Service with the grievant and performed as well as [he]." Reiner v. United States, 222 U.S. App. D.C. 391, 686 F.2d 1017, 1026 (D.C. Cir. 1982) (Wilkey, J. concurring). See also, Ehrman v. United States, No. 82-1984, slip op. at 3 (D.D.C., August 31, 1983).
Additionally, since 1984, selection boards have been reconstituted to review files for promotion purposes.
Reconstituted selection boards are preferred method because they safeguard the purposes which underlie the use of selection boards in the first instance: namely, that an officer be evaluated by his peers in an impartial, bias free setting.
Thus, by contrast, the Board members who evaluated and compared the plaintiff against promotees for 1977 through 1979, not only utilized an inexact ...