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DARDIS v. SHULTZ

June 15, 1988

John G. Dardis, Plaintiff,
v.
George P. Shultz, Defendant



The opinion of the court was delivered by: RICHEY

 INTRODUCTION

 In 1976, plaintiff entered the Foreign Service as a Foreign Service Reserve Officer with a limited appointment. Plaintiff successfully fought the State Department's attempts to terminate that appointment and to deny him tenure; in 1980 the Foreign Service Grievance Board ruled that he be given an opportunity to achieve career status and in 1983 the Board directed the Department to convert plaintiff to Foreign Service Reserve Unlimited ("FSRU") status retroactive to October 21, 1980, with appropriate back pay and benefits. See Record Before the Foreign Service Grievance Board ("Record"), number 26, at 3. At the time of the events at issue in this suit, plaintiff was classified as FSRU-2/7.

 Under the Foreign Service Act of 1980, certain Foreign Service Officers, including plaintiff, were involuntarily converted first to the Senior Foreign Service and then to a position listed on the General Schedule ("G.S.") system. 22 U.S.C. § 4154. Accordingly, plaintiff was converted to level ES-4 within the Senior Foreign Service and eventually to GS Level 16/step 5. In 1984, plaintiff filed a grievance challenging the level within the Senior Foreign Service, and the subsequent "GS" classification, to which he had been converted. In April, 1986, the Foreign Service Grievance Board decided that the conversion and new grade and step were proper, and it denied plaintiff's grievance. Plaintiff thereupon filed this case.

 THE COURT HAS JURISDICTION OVER THIS CASE.

 The Foreign Service Act of 1980 specifies that:

 
Any aggrieved party may obtain judicial review of a final action of the . . . [Foreign Service Grievance] Board on any grievance in the district courts of the United States in accordance with the standards set forth in chapter 7 of Title 5.

 22 U.S.C. § 4140. This provision obviously covers Grievance Board actions with respect to pay. As such, it seems to conflict with the Tucker Act, 28 U.S.C. § 1491, which appears to mandate that plaintiffs who seek more than $ 10,000 in back pay from the government proceed in the United States Claims Court and not the district courts of the United States.

 At oral argument, plaintiff stated that he was seeking at least $ 10,659.20 in back pay. As a result, the Court questioned its jurisdiction over this suit. Although the parties agreed that the case was properly brought in this Court, the Court indicated that it would have to reexamine the issue of subject matter jurisdiction sua sponte. Having done so, the Court is satisfied that it indeed has jurisdiction.

 The Tucker Act was last amended by the Federal Courts Improvement Act of 1982. 96 Stat. 25 (Apr. 2, 1982). As the Courts Improvement Act became law after the enactment of the Foreign Service Act of 1980, the apparent conflict between the jurisdictional provisions of the two laws suggests the possibility that the later Act directly or indirectly amended or repealed the earlier jurisdictional language. From the language and legislative history of the two laws, however, it is clear that no such amendment or repeal may properly be inferred.

 The law "strongly presume[s] . . . that Congress will specifically address [express] language on the statute books it wishes to change." United States v. Fausto, 484 U.S. 439, 108 S. Ct. 668, 676, 98 L. Ed. 2d 830 (1988); Morton v. Mancari, 417 U.S. 535, 41 L. Ed. 2d 290, 94 S. Ct. 2474 (1974). Neither the text of the Tucker Act nor the language of the Federal Courts Improvement Act "specifically addresses" the question of jurisdiction over Foreign Service grievances; nor do the legislative history and statutory design of the Courts Improvement Act suggest that Congress ever considered whether that Act affected specific jurisdictional grants in other statutes. Thus, the Court would have to find that the Foreign Service Act's language (i.e., 22 U.S.C. § 4140) was repealed by implication of the Courts Improvement Act if it were to find that it lacks jurisdiction over Foreign Service grievances.

 It is hornbook law that "repeals by implication are strongly disfavored, . . . so that a later statement will not be held to have implicitly repealed an earlier one unless there is a clear repugnancy between the two." United States v. Fausto, 108 S. Ct. at 676. There is no such "clear repugnancy" between the Foreign Service Act's grant of jurisdiction over grievance actions and the Federal Courts Improvement Act's general grant of jurisdiction to the Claims Court. Rather, the Foreign Service Act's jurisdictional language can easily be read as a specific exception to the general rule vesting exclusive jurisdiction over federal back pay claims in the Claims Court.

 Moreover, this is the most logical reading of the Foreign Service Act. The Tucker Act existed in not too dissimilar form prior to enactment of both the Foreign Service Act of 1980 and the Federal Courts Improvement Act of 1982. Congress could have granted jurisdiction over Foreign Service pay issues in the old Court of Claims under the Tucker Act as it existed in 1980. Congress instead gave jurisdiction over these issues to the United States District Courts. It would thwart congressional intent to imply into the Federal Courts Improvement Act a repeal of an ...


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