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THOMAS v. BAKER

July 13, 1989

WALTER J. THOMAS, Plaintiff,
v.
JAMES A. BAKER, III, Defendant



The opinion of the court was delivered by: REVERCOMB

 GEORGE H. REVERCOMB, UNITED STATES DISTRICT JUDGE

 This case involves claims by the plaintiff that he was terminated from the Department of State's Foreign Service in violation of applicable regulations and due process. He seeks back pay, reinstatement, and promotion. Oral argument was heard on February 10, 1989 on cross-motions for summary judgment. *fn1" In this opinion and order, the Court grants summary judgment in favor of the defendant.

 I. Facts

 Plaintiff Walter J. Thomas was appointed in 1977 as a Foreign Service Reserve Career Candidate through the Mid-Level Hiring Program for Women and Minorities. He was part of the "03" class. On March 11, 1983, after passing an oral examination in 1982, he was commissioned and tenured as a career member of the Foreign Service. In July of 1983, however, a State Department Selection Board suggested to a Performance Standards Board ("PSB") that Mr. Thomas be terminated (referred to by the euphemism "selection out") for failure to meet the standards of the 03 class. After the PSB agreed with the Selection Board, Mr. Thomas appealed to the Special Review Board ("SRB").

 At the hearing before the SRB, the panel denied requests by Mr. Thomas to compel testimony from members of the PSB or to permit testimony from a member of the Selection Board, on the ground that the testimony would not be relevant or material to the proceeding. After a hearing and receiving other evidence, the SRB affirmed the decision of the PSB to terminate Mr. Thomas. This suit followed.

 This Court has jurisdiction over the matter pursuant to 22 U.S.C. § 4140, which establishes direct judicial review of certain final State Department actions. A Court, reviewing the case on the record, may overturn a final State Department action if the action was, among other things, not supported by substantial evidence or not in accordance with the applicable law. 5 U.S.C. § 706 (referred to in 22 U.S.C. § 4140).

 The plaintiff alleges two categories of State Department errors. First, he argues that the Department terminated him in clear violation of State Department regulations against terminating him. Second, he contends that the SRB failed to provide him with procedural and evidentiary rights during his appeal. The Court deals in turn with each of the allegations.

 The Department of State's Foreign Affairs Manual ("FAM") Circular, which governs aspects of personnel regulation, stated in 1983 in part that:

 
All career members of the Foreign Service who have been in present class or equivalent previous class for a total of 1 year or more as of July 1, 1983, will be reviewed for possible referral to an appropriate Performance Standards Board for consideration for selection-out for failing to maintain the standards of performance for their class.

 FAM Circular 83-10, Part II, § C. The defendant alleges that because the plaintiff joined the "03 class" when he was hired in 1977 as a Foreign Service Reserve Career Candidate, he was eligible for selection out under FAM Circular 83-10 in 1983, even though he had been a career officer for only a few months. The plaintiff contends that a sensible reading of FAM Circular 83-10 would require that a career member have been a career member for at least one year before being eligible for termination under FAM Circular 83-10.

 When confronted with a dispute concerning the interpretation of an agency's regulation, the agency's interpretation naturally is given considerable deference. Shepherd v. Merit Systems Protection Board, 209 U.S. App. D.C. 243, 652 F.2d 1040, 1043 (D.C. Cir. 1981). There are exceptions, of course, to avoid upsetting the expectations of parties or circumventing the proper procedures for decisionmaking at the agency. For example, a court should reject (1) a contorted or artificial interpretation, see id., and (2) an interpretation that appears to have been adopted in order to aid the agency in a particular dispute with a particular employee.

 In the instant case, the Court concludes that the agency's interpretation of its regulation was both a reasonable one and was not concocted in order to support the defendant's position in this case. First, the plain words of the section at issue -- "All career members . . . who have been in present class . . . for a total of 1 year or more" -- appear to cover Mr. Thomas, who was a career officer in August 1983 and who had been in the 03 class since 1977. Second, the Court disagrees that the term "in present class" should be interpreted by grafting onto it 3 FAM 732.2(a), which governs the process of selection out on the ground that the officer has exceeded maximum time-in-class -- an entirely ...


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