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MILLER v. BAKER

October 22, 1990

J.M. MILLER, Plaintiff,
v.
JAMES A. BAKER, Secretary of State, Defendant



The opinion of the court was delivered by: REVERCOMB

 GEORGE H. REVERCOMB, UNITED STATES DISTRICT JUDGE

 I. Background

 The unusual factual development of this case has highlighted an ambiguity in the provisions of the Foreign Service Act of 1980, 22 U.S.C. § 3901 et seq. This ambiguity involves the interplay of the Secretary of State's ("Secretary") authority to terminate nontenured members of the Foreign Service at any time and the authority of the Foreign Service Grievance Board to suspend termination in certain cases. Although this Circuit has confronted the relevant provisions of the FSA in other cases, this case presents a novel fact pattern to the Court.

 The plaintiff first entered service with the Department of State ("Department") under a limited appointment to the Foreign Service in June 1978. The FSA requires persons seeking a career appointment to first serve under a limited appointment as a career candidate for a trial period. During the trial period, the Secretary will decide whether to grant the individual tenure to a career appointment. FSA § 306(a), codified at 22 U.S.C. § 3946(a). The term of a limited appointment may not exceed five years, unless extended. If tenure is not granted during the trial period, the individual will be separated from the Service at the expiration of the limited appointment term. FSA § 309(a), codified at 22 U.S.C. § 3949(a). In 1983, plaintiff's limited appointment was extended for an additional five years.

 According to this scheme, plaintiff received notice on April 8, 1988, that because she had not been granted tenure, she would be separated from the service at the expiration of her limited appointment in June of 1988. On June 2, 1988, plaintiff filed a grievance with the Department of State "asserting that she received inaccurate, erroneous, and falsely prejudicial employee evaluation reports which impacted her opportunity for tenure." Pl. Memorandum at 6. The FSA establishes procedures for the filing and consideration of grievances by members of the foreign service. FSA §§ 1101-1110, codified at 22 U.S.C. §§ 4131-4140. The Act defines what constitutes a grievance by listing acts included in the term and those excluded. The language of the definition provision relevant to this case states:

 
(a)(1) Except as provided in subsection (b) of this section, for purposes of this subchapter, the term "grievance" means any act, omission, or condition subject to the control of the Secretary which is alleged to deprive a member of the Service who is a citizen of the United States of a right of benefit authorized by law or regulation or which is otherwise a source of concern or dissatisfaction to the member, including --
 
* * * *
 
(E) alleged inaccuracy, omission, error, or falsely prejudicial character of information in the official personnel record of the member which is or could be prejudicial to the member
 
* * * *
 
(b) For purposes of this subchapter, the term "grievance" does not include --
 
* * * *
 
(3) the expiration of a limited appointment, the termination of a limited appointment under section 4011 of this title [FSA § 611] . . . .

 FSA § 1101, codified at 22 U.S.C. § 4131. Thus, as the plaintiff acknowledges, while the expiration of her limited appointment is not grievable, alleged ...


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