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MOLINEAUX v. UNITED STATES

April 2, 1992

PAUL D. MOLINEAUX, et al., Plaintiffs,
v.
UNITED STATES, et al., Defendants.


Gesell


The opinion of the court was delivered by: GERHARD A. GESELL

MEMORANDUM

Plaintiffs are 26 former class 1 Foreign Service Officers ("FS-1s") who were obliged to leave the Foreign Service after they were not promoted into the Senior Foreign Service ("SFS"). They challenge a decision of the Foreign Service Grievance Board upholding the personnel system developed by the Foreign Service in response to a congressional directive that the Service assure a proper flow of officers up the ranks of the Foreign Service. See Foreign Service Act of 1980, § 601(c)(2), 22 U.S.C. § 4001. The issues are before the Court on cross motion to affirm or reverse the decision of the Foreign Service Grievance Board and defendants' alternative motion to dismiss. The matter has been fully briefed by both parties and argued.

 I. Background

 The Foreign Service operates under what is generally called an "up-or-out" personnel system. If an officer is not promoted within a certain number of years, he may be required to leave the Service. Of course, the only opportunity that an officer has to receive a promotion is if there is a need for more officers in the higher ranks. If there are not enough slots, even qualified officers may have to be terminated.

 In order to encourage the Foreign Service to develop a means for assuring a steady flow upward of the best qualified younger officers, Congress enacted section 601 of the Foreign Service Act of 1980. Section 601(c)(2) provides:

 Decisions by the Secretary on the numbers of individuals to be promoted into and retained in the Senior Foreign Service shall be based upon a systematic long-term projection of personnel flows and needs designed to provide--

 (A) a regular, predictable flow of recruitment in the Service;

 (B) effective career development patterns to meet the needs of the Service; and

 (C) a regular, predictable flow of talent upward through the ranks and into the Senior Foreign Service.

 22 U.S.C. § 4001(c)(2).

 Subsequent to enactment of this 1980 statute, the Foreign Service developed a personnel model that set a fixed attrition rate among senior officers of 10 percent. To maintain that rate, the Service would adjust the number of Limited Career Extensions ("LCEs") it granted. LCEs allow an officer to spend additional time in his class without being forced out for lack of promotion.

 By written announcement dated May 14, 1981, the Director General invited FS-1 officers to apply for earlier promotion into the SFS by "opening their windows." The announcement stated that the Foreign Service "would be guided by" the need for regular flow in its promotions process, but advised that by "opening their windows" in this fashion, officers who accepted the invitation would be terminated in six years if they had not been promoted by then, whether or not they might still have had additional time left in their class if they had not made themselves available for early promotion. A number of FS-1s accepted the invitation and opened their windows.

 Because of various external factors during the 1980s, including a shrinking number of total SFS positions and a lower-than-expected voluntary attrition rate among senior officers, the personnel model developed by the Service actually led to diminishing numbers of promotions into the SFS during the mid-1980s -- from 69 in 1981 to a low of 39 in 1984. Thereafter, the promotions again began steadily to rise. However, since many officers, including the plaintiffs, happened to open their windows in the early 1980s, their eligibility for promotion coincided with the downturn in promotions during the mid-1980s. As a result, fewer FS-1s in those classes were promoted than had been expected. Plaintiffs contend that they were misled by the invitation into opening their windows at a bad ...


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