The opinion of the court was delivered by: SPORKIN
Plaintiff Victor J. Bonilla was an untenured foreign service officer from June 14, 1973, until November 14, 1984. His foreign service career was unfortunately marred by a number of adverse personnel actions. Plaintiff contested these decisions through the grievance process and was generally vindicated by the Foreign Service Grievance Board ("the Grievance Board" or "the Board") with respect to each of the grievances; nonetheless, plaintiff did not receive the relief he sought and now appeals the decisions below.
The case is before me on dispositive cross motions. While the matter raises a number of issues, the key question is whether plaintiff is entitled to a tenured position in the foreign service. It is my conclusion that he is so entitled.
Plaintiff, holding a B.A. degree in Political Science and an M.A. degree in International Relations, entered the foreign service in 1973, as a Foreign Service Reserve Affirmative Action Entrant, Class 7. Plaintiff's appointment was for five years, with the provision that unless he obtained tenure during that period, he would be separated from the Service. A tenured appointment permits a foreign service officer, like plaintiff, to remain in the Service for his entire career (22 years) in the absence of a finding of substandard performance or misconduct. Foreign service officers, both tenured and untenured, receive periodic performance evaluations and reviews.
Although plaintiff received a promotion in 1978, he still had not been tenured by 1980 when his reserve appointment was about to expire. Accordingly, plaintiff pursued a secondary route to tenure by taking a "lateral entry exam. "
Despite the fact that he passed both the written and oral examinations, Personnel's Board of Examiners ("BEX") denied him lateral entry in September, 1980. Subsequently it was learned that in evaluating plaintiff, the examining authority inappropriately had taken into account information obtained in the 1975 proceeding that had been ordered deleted from plaintiff's personnel file. To correct this error, plaintiff was given an extension of his employment to permit him to "demonstrate his capabilities for long term service." ROP I at 232.
In September 1981, plaintiff took the lateral entry examination again and was again recommended for lateral entry by the oral panel. Nonetheless, the full Board of Examiners once more rejected his lateral entry. Plaintiff complained to the Department in 1982, and again he received an unsatisfactory response. Finally, in the late summer of 1982, shortly before his time in the Service was to expire, plaintiff submitted his case to the Grievance Board. At the time he appeared before the Grievance Board, plaintiff was still not tenured, even though he had been recommended for tenure in 1978, 1979, 1982, and 1983. Indeed, all of plaintiff's classmates that entered the foreign service at the time he entered it, had been tenured by 1978.
The Board took jurisdiction of all issues "grieved" by plaintiff and as an interim measure, suspended plaintiff's termination from the Service which resulted from his inability to obtain tenure within the allotted time. After a six day hearing in the summer of 1983, the Grievance Board decided for the plaintiff on virtually every issue. ROP I at 196-243.
The Board found that in considering the plaintiff's second attempt at lateral entry in 1981, the examining authority had once again inappropriately taken into account the 1975 proceeding. Among other problems with the second examination, the Board noted that "Five of the nine Board [of Examiner] members who participated in the flawed 1980 BEX process served on the 1981 Board." ROP I at 229. The Grievance Board concluded that "the 1981 process . . . was so critically flawed as to render its outcome invalid." Id. at 230. The Grievance Board also delineated numerous other harms done to the plaintiff's career, such as falsely prejudicial reports and purposefully poor assignments.
In addressing the proper remedy for all of these harms, the Board, in a section entitled "Cumulative Effect," wrote:
We have concluded on the basis of all the facts and the circumstances in the record of this case that a number of serious irregularities, deficiencies and violations of Department regulations critically affected the grievant's career from 1976 to 1982. We have not overlooked shortcomings in the performance of this junior officer. However, the grave chain of damage to his career caused by a pattern of short and generally unsuitable assignments, defective evaluation material, flawed BEX examinations and the prejudicial way in which directed extensions of time in Service were interpreted requires substantial remedies.
In our opinion, a recommendation for tenure is an appropriate remedy where, as here, it is abundantly clear that errors of commission or omission prevented a grievant from achieving tenure.
In accord with these conclusions, the Grievance Board recommended that the Secretary of State ("the Secretary") give plaintiff tenure retroactive to 1981, when he was denied lateral entry to the Foreign Service. Additionally, the Board ordered the withdrawal of several adverse evaluations and expungement of certain other records in plaintiff's personnel files. Finally, the Grievance Board ordered that the plaintiff not be terminated for a period of three years.
On September 30, 1983, the Board's tenure recommendation was rejected by the Acting Secretary of State on the basis that he was without the proper authority to grant tenure since the recommendation had not originated with a properly constituted Commissioning and Tenure Board. ROP I, 187-191, at 189. The Acting Secretary also rejected the Grievance Board's conclusion that it possessed the authority to recommend tenure. ROP I at 190. The Acting Secretary concluded that the Grievance Board's recommendation was contrary to law for a third reason: that is, because it interfered with his authority under Section 611 of the Foreign Service Act to terminate limited appointment members of the Foreign Service "at any time." ROP I, at 188-189.
Plaintiff then went back to the Board seeking a modification of the relief it granted in light of the Acting Secretary's denial of tenure. Standing firm in the face of the Acting Secretary's denial of tenure, the Grievance Board, on February 15, 1984, reaffirmed its earlier ruling. ROP I at 119-139. In a carefully reasoned opinion, the Board again found that it had the authority to recommend tenure and did so in this case because of the clear equities in the plaintiff's favor.
The Secretary of State himself then -- on March 22, 1984 -- denied plaintiff tenure, upholding and expanding upon the Acting Secretary's earlier determination. ROP I at 107-113. Instead of giving plaintiff tenure, the Secretary of State confirmed a new three year untenured appointment for Mr. Bonilla which had begun in January, 1984.
The events of plaintiff's career following this appointment are both unclear and unfortunate. It appears that plaintiff's then-current assignment was terminated after only eight months -- although his performance had been rated outstanding -- and that he was asked to bid on an overseas assignment. While his first choice was not honored, a secondary request was granted and, in May 1984, he was assigned to a post in Tel Aviv, to begin in August. However, plaintiff never went to Tel Aviv.
Following conversations with the incumbent in the Tel Aviv position, who was on his first tour of duty in the Foreign Service, plaintiff had second thoughts about the assignment and requested to have it rescinded, arguing that the position was too junior in rank. In the meantime, plaintiff had reapplied for tenure based on his purged performance file. The Tenure Board, in July, 1984, again refused to tenure him. Thus, plaintiff also wished to remain near Washington "to assist his attorney in legal proceedings necessary to ensure a long-term FS career, and to identify and interview with American employers outside the Service with whom he may continue his professional career in mid-life, if legal proceedings do not provide relief." Letter of Bridget R. Mugane to Michele E. Truitt, ROP I at 84. Taking a realistic view of his chances in the Foreign Service after his July tenure rejection, plaintiff also wanted to enroll in the Alternate Career Planning Program (ACPP), in Washington, which assists persons leaving the Foreign Service.
Despite these concerns of the plaintiff, the Department insisted that he accept the Tel Aviv post. Plaintiff then requested that the Grievance Board intervene on his behalf. Mr. Bonilla asked the Board to recommend to the Secretary that he not be assigned overseas until the question of his tenure was resolved by legal proceedings, including judicial review. ROP I at 67. Alternatively, he asked the Board to direct the Department to allow him to pursue the ACPP program for an eight month period. ROP I at 69. Should these requests fail, plaintiff asked the Board to insulate him from ...