by a subsequent termination under § 611.
The Department's argument to the contrary is based on the same logic as the plaintiff's, but the Department asserts the supremacy of its § 611 power over the Board's 1106(8) authority. The Department argues that there is only one express limitation to the grant of authority to the Secretary to terminate limited appointees "at any time," and that exception only applies in cases where the termination is by reason of misconduct. Since the statute places no other limitations on the power it grants to the Secretary, no other exceptions can be read into that authority. Thus, a Board order suspending the expiration of plaintiff's limited appointment does not preclude the Secretary from terminating plaintiff pursuant to § 611.
In support of its position, the Department cites the recent case from this Circuit, United States Information Agency v. Krc, 284 U.S. App. D.C. 284, 905 F.2d 389 (1990). In Krc, the plaintiff argued that despite the agency's claim that it had terminated his limited appointment pursuant to § 611, he was actually terminated by reason of his conduct and, therefore, his termination was grievable. Although noting that "[a] Foreign Service member terminated pursuant to § 611 has few avenues of appeal," the court of appeals stated that §§ 610 and 611 "permit a Foreign Service member to grieve the question of whether USIA's classification was legitimate, as USIA would act 'contrary to law' if it professed to terminate a limited appointee under § 611 when the termination was actually due to the appointee's misconduct." Since the court found that the record did not indicate that Krc had been terminated for misconduct, it held that the Board was precluded from reviewing Krc's termination. 905 F.2d at 394.
The defendant argues that since its decision to terminate the plaintiff's limited appointment under § 611 was not restricted by the suspension order in force at the time of its determination, its exercise of § 611 authority was valid and, according to both the statute and case law, is not reviewable. The defendant claims that the Haynes/Sethi and Krc decisions control this case. The Haynes/Sethi decision establishes that the Board may not direct the retention of nontenured employees, and the Krc decision limits the Board's review of § 611 actions to cases where the grievant claims to have been terminated for misconduct. Both cases recognize the supremacy of § 611 over any power the Board might have under § 1106(8).
Plaintiff contends that neither decision applies to this case. First, the special factual predicates to the Department's exercise of § 611 authority in this case render the Haynes/Sethi decision inapposite. Since the Board had issued a valid order under § 1106(8), plaintiff claims that the Department is precluded from exercising its § 611 authority and that the Haynes/Sethi decision is limited to cases where the Board seeks to issue a suspension order after there has been a § 611 action. In addition, plaintiff proposes a broad reading of the Krc decision which would permit Board review whenever a grievant challenges the Department's classification of his or her termination as a § 611 termination.
The Court cannot accept plaintiff's reading of the Krc decision. The Court of Appeals' decision rested on the express relationship between the power vested in the Secretary by § 611 and the explicit exception to that power specified in the statute. Plaintiff does not claim to have been terminated by reason of misconduct; accordingly, plaintiff cannot use the Krc decision to support its claim that the Board is authorized to intervene in the Department's exercise of its § 611 power after such power has been legitimately exercised.
Thus, the issue in this case reduces to whether the Board can exercise its § 1106(8) authority prospectively to stay the § 611 termination of a nontenured appointee. The issue is really one of assigning priority to the two statutory provisions. Since neither expressly references the other, the plain language of the provisions does not resolve this question. Moreover, although the Haynes/Sethi decision prohibited the Board's use of § 1106(8) to suspend a previous § 611 termination, that case did not consider prospective use of the suspension power to stay a future exercise of § 611 by the Department.
The Department asserts that § 1101, in defining what constitutes a grievance, establishes the supremacy of § 611 over the Board's suspension authority regardless of when § 611 authority is invoked. The Court recognizes that the Board is expressly prohibited from reviewing the expiration or termination of a limited appointment, but the Board is nonetheless empowered to suspend such actions if it is considering a valid grievance related to the involuntary separation. The legislative materials relevant to these provisions provide no insight into how these two competing powers were intended to operate in relation to one another.
The plaintiff argues that, when a case involves a statutory conflict, "the reviewing court has the task of ensuring that an appropriate harmonization of the conflicting provisions has been effected by the administering agency." Pl. Reply at 10 (citing Citizens to Save Spencer City v. EPA, 195 U.S. App. D.C. 30, 600 F.2d 844 (D.C. Cir. 1979)). In so doing, according to the plaintiff, this Court must "temper the Department's use of section 611 when the employee grievance process as [sic] been activated." Pl. Reply at 11. Plaintiff's argument assumes that nontenured members of the Foreign Service, although basically at-will employees during the term of their limited appointments, were granted certain rights by Congress when it enacted the grievance procedures of the FSA. Plaintiff explains her approach to reconciling her rights under the grievance provisions with the Secretary's broad power under § 611:
The Department, in Miss Miller's case, chose to initiate her separation from the service pursuant to section 309. Once it activated Miss Miller's separation under section 309, the Department necessarily subordinated its authority to subsequently separate Miss Miller under section 611 to her due process rights. This approach also protects the purpose and intent of the Act. The Department's authority to terminate limited appointees can occur "at any time". That time, however, must be consistent with the grievance structure that Congress devised. Any less would grant the Department the unbridled license to supersede the authority Congress conferred upon the Grievance Board.
Pl. Reply, at 11.
The "due process" rights claimed by the plaintiff are her rights to have her expiration stayed when the Board determines that the expiration is related to a valid grievance pending before it and that the expiration should be suspended. However, those rights are eclipsed by the clear statutory language excluding review of expiration or termination of limited appointments from the Board's purview. Moreover, plaintiff's alleged "rights" only arose as a result of the fortuitous manner in which her termination was effected. Had the Department simply invoked § 611 to terminate the plaintiff's appointment rather than waiting for the appointment's term to expire pursuant to § 309, plaintiff would have had no opportunity to seek a suspension of her termination, since the Haynes/Sethi decision clearly establishes that the Board cannot intervene to suspend a § 611 termination after such a termination has been ordered. For these reasons, the Court is not persuaded to read the grievance provisions as creating the procedural rights claimed by the plaintiff.
In addition, the Court believes that it should not read into this statutory scheme additional limitations on the Department's authority to terminate nontenured appointees. As § 611 reflects, subject to only limited exceptions, limited appointees serve at the will of the Secretary. Although Congress has provided certain procedures for the raising and consideration of grievances by Foreign Service employees, that scheme provides only limited rights to nontenured appointees. Because members of the foreign service hold positions of great importance and responsibility as representatives of the Department of State and the U.S. Government, this Court will not circumscribe the Secretary's discretion to control that membership in the absence of a clear statutory mandate.
Accordingly, although acknowledging significant ambiguities in the conflicting provisions of the grievance system, this Court finds the defendant's reading of the statute to be most consistent with the limited procedural rights granted to nontenured appointees by the FSA. Defendant's motion for summary judgment, therefore, is GRANTED, and plaintiff's motion for summary judgment is DENIED.
JUDGMENT ORDER - October 22, 1990, Filed
In accordance with the Memorandum and Opinion issued in the above-captioned case, JUDGMENT is hereby entered for the defendant.