plaintiff then going back to the Tenure Board once again. ROP I at 112 (". . . the remedy is not to abandon the tenuring process, but rather to make it work as it was designed to do . . ."). While I am sympathetic to the Secretary's concerns, I simply do not find that such a remedy would be adequate in this case, where the plaintiff has repeatedly been returned to his non-tenured status without any real guidance as to what was expected of him before he could achieve tenure.
I am also concerned that the Grievance Board will be relegated to a lesser role if its thoughtful decision can be so easily frustrated by an interpretation of the law that would deny it the ability to ensure that substantive justice is done in deserving cases. It obviously takes a great deal of courage for the Grievance Board to engage in a dispute with the Secretary of State. Here it believed that the facts were so compelling that, even though its initial recommendation for tenure was rejected by the Secretary, it proceeded to resubmit that recommendation to him a second time.
Grievance Boards offer the only meaningful opportunity to obtain relief from extraordinarily prejudicial tenuring processes such as this one. I am of the opinion that Congress intended the Grievance Boards to have the authority to correct egregious tenure errors and thus that the Board's ability to do so must be protected. This can only be done if the Grievance Board has authority to provide the full range of remedial relief to correct prior wrongs.
B. Constructive Discharge
In view of my decision on the tenure issue, I believe the constructive discharge and reprisal issues are moot.
With respect to the question of what other retroactive promotion plaintiff is entitled to, I am sustaining the Grievance Board's decision. I find that the Board's determination is amply supported by the record.
For the above outlined reasons and within the factual setting of this case, the Secretary's determination that he could not accept the Board's tenure recommendation was "not in accordance with law," and therefore must be vacated. 5 U.S.C. § 706(2)(A) (1982).
I am mindful that the Secretary only ruled that he did not have the authority to grant tenure, without, apparently, considering the facts of this case; as I have corrected that legal determination, it would ordinarily be appropriate to remand to the Secretary to determine whether, given the authority to accept the Board's recommendation, he should use that authority to grant tenure in this case. 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). However, given the facts of the case, and because I am convinced that the Board was absolutely correct in its determination that tenure is the only full remedy here, I am instead inclined to, and simply will, order the Secretary to follow the Board's recommendation to grant tenure. It is within my authority to do so and I believe this is one of the exceptional instances in which such an order is warranted.
I am also aware that the Daniels decision is on appeal and that defendants have asked the Court to delay resolution of this case pending that appeal. However, given the long and painful nature of plaintiff's career problems, I do not believe further delay would be appropriate. Moreover, this case can be decided regardless of the outcome of the Daniels appeal.
As a court of equity, I have the authority to directly order that the plaintiff be tenured. See Ford Motor Company v. NLRB, 305 U.S. 364, 83 L. Ed. 221, 59 S. Ct. 301 (1939) (acting within bounds of statute and without intruding on the administrative province, reviewing court may "adjust its relief to the exigencies of the case in accordance with the equitable principles governing judicial action . . ."), Indiana & Michigan Elec. Co. v. Federal Power Commission. 163 U.S. App. D.C. 334, 502 F.2d 336 (D.C. Cir. 1974), cert. denied 420 U.S. 946, 43 L. Ed. 2d 424, 95 S. Ct. 1326. "Tenure" obviously falls within the bounds of the statute which authorizes career appointments, and at this point, such an order would barely interfere with an administrative procedure that has been unable, despite a multitude of opportunities, to correct the egregious wrong done to the plaintiff.
Nonetheless, I am ordinarily reluctant to exercise that authority. However, it is appropriate to do so in this case. The plaintiff has met every requirement to obtain tenure except for receiving final approval from the Tenure Board. Each time he presented himself to the Tenure Board he was rejected. On two occasions, despite successfully completing an arduous oral and written examination, the BEX turned him down on a concededly improper basis. In large measure the decision was based upon information which appeared in an old file that had been ordered stricken from plaintiff's employment record. Here we have a tenure process that is simply out of control. To hold that the only body that has authority to grant tenure is an internal administrative organ of the Department of State which can exercise this life and death employment authority within its sole discretion would strip the plaintiff and other foreign service officers of very valuable constitutional rights.
Moreover, to deny plaintiff tenure once again and to reinstate him for yet another non-tenure position for a term of years would be a cruel act. Plaintiff has suffered enough indignity by having to scratch and claw for the limited relief he has obtained. Accordingly, I find that the only adequate remedy is to exercise my equitable powers and to uphold the Grievance Board's tenure recommendation.
Wherefore, after review of the record, and hearing argument from the parties, I am ordering:
first, that the plaintiff be reinstated to the Foreign Service as of November 14, 1984;
second, that the plaintiff be granted tenure in the Foreign Service;
third, that the Secretary and the Board determine what additional redactions of the record need to be made in order to ensure plaintiff's employment rights will not be jeopardized in the future; and
fourth, that the decision of the Grievance Board on the promotion issue, already accepted by the Secretary, be affirmed.
An appropriate order accompanies this Memorandum.
For the reasons stated in the Memorandum Opinion dated February 11, 1987, it is hereby
ORDERED that plaintiff's motion for summary judgement be granted in part and denied in part; and further
ORDERED that defendant's motion to affirm be granted in part and denied in part.
Accordingly it is hereby further
ORDERED that the plaintiff be reinstated retroactive to November 14, 1984, with back pay and benefits; and further
ORDERED that the plaintiff be granted tenure in the Foreign Service; and further
ORDERED that the determination of the Foreign Service Grievance Board, as accepted by the Secretary, on the question of retroactive promotions be affirmed; and further
ORDERED that the Secretary of State and the Grievance Board determine what additional redactions of the record need to be made in order to ensure plaintiff's employment rights will not be jeopardized in the future.