plaintiff against promotees for 1977 through 1979, not only utilized an inexact method for determining his injury, but also may not have been as equitably constituted a group of evaluators as a reconstituted selection board would have been.
Given the two usual procedures for remedying nonpromotional errors, as well as the fact that the new option the Board used gave the plaintiff no remedy whatsoever for what all the parties admit was an egregious error, I find that the procedures used by the Board in this case were inadequate. The way to determine what relief is due the plaintiff in this case is to use one of the two remedial procedures which have heretofore been employed, or another procedure that will adequately achieve a fair result. I am therefore remanding the case, so that an appropriate remedy can be fashioned.
Specifically, the Department can reconvene the Selection Boards for the years in question. If this is done, I suggest that the plaintiff be represented by counsel before the Selection Boards so that his case can be fully and adequately presented. As an alternative to this process the Department might more expeditiously and economically conclude this matter by agreeing to the eminently fair disposition offer made by plaintiff's counsel. Plaintiff simply desires that the statistical method approved by the Reiner and Erman decisions be employed to assess his damages. See Memorandum of Points and Authorities in Support of Pl. Motion for Summary Judgment at 20-22 and Exhibits B and C. Using that method to estimate what relief is proper, plaintiff asks that his 1980 promotion be made retroactive to 1977, and that he be given one additional promotion with back pay. Id. On remand, the Department may chose either of these alternatives, or another appropriate remedial method.
The decision of the Foreign Service Grievance Board is affirmed as to its findings of fact, Record of Proceedings before the Foreign Service Grievance Board, No. G-81-041-State-30 (October 28, 1983) at 7-12, but vacated as to the denial of relief, Record of Proceedings before the Foreign Service Grievance Board, No. G-81-041-State-30 (April 30, 1984). Accordingly, that portion of the defendant's Motion to Affirm the Decision of the Foreign Service Grievance Board which seeks affirmance of the Board's findings of fact is granted and the rest of defendant's Motion is denied. Plaintiff's Motion for Summary Judgment is granted except with respect to the relief sought. The case is remanded for the determination of a remedy consistent with this opinion. An appropriate order accompanies this memorandum.
For the reasons expressed in the Memorandum dated January 14, 1987, it is hereby
ORDERED that the decision of the Foreign Service Grievance Board be affirmed as to its findings of fact and it is further
ORDERED that the decision of the Foreign Service Grievance Board be vacated as to the relief denied and it is further
ORDERED that the case be remanded for the determination of a remedy consistent with the opinions expressed in the Memorandum and thus it is further
ORDERED that defendant's Motion to Affirm the Decision of the Foreign Service Grievance Board be affirmed in part and denied in part and it is further
ORDERED that Plaintiff's Motion for Summary Judgment be granted in part and denied in part.