section 601 of the Act in that a higher flow was not immediately achieved.
II. The Merits
A. The Invitation
As a preliminary matter, plaintiffs' contentions regarding the invitation must be subordinated to the general discussion of the personnel model as a whole. The invitation simply gave officers the option of opening their windows and provided necessary background. In particular, the materials attached to the invitation referred to section 601(c) and said that the Service would be "guided by the need to maintain a regular, predictable flow of promotions" -- language that tracks the statute almost verbatim. The attached materials presented the success rate of candidates in previous years, but warned that "statistical averages and historical experience may have limited relevance. . . ." Attachment to Letter from John M. Clark, May 14, 1991, Pl. App. at 194. As the materials stated, the purpose of the invitation was to help officers "determine whether they are eligible for promotion into the SFS and, if so, whether to request consideration for promotion by the Senior Threshold Selection Board (STB) at this time." Id. at 192. No promises were made and none of the information was false or misrepresentative. On the contrary, the Service was providing prospective applicants with all available information necessary to make an informed choice, while at the same time indicating that opening the window inevitably had uncertain results. In the years following the invitation, a number of applicants were in fact promoted.
B. The Personnel Model
Plaintiffs request the Court to declare the Service's flow program invalid and to remand the cases of the individual plaintiffs for further consideration by the Board. Such further consideration, if ordered, would of necessity require that the Board first establish a new flow standard consistent with directions interpreting the Act that would have to be given by the Court to explain what type of personnel system would comply with the statute's provisions.
Obviously, it is not the function of the Court to devise a flow scheme for the Foreign Service out of whole cloth. Support for the Court's decision would have to appear from the face of the statute.
Examination of the statute, however, reveals that while Congress clearly expressed a desire to improve upward mobility of younger foreign service officers, Congress failed to set a numerical rate or other identifiable standard that the Service is required to meet in developing its personnel system. Given a good faith attempt on the part of the Service to comply with the statute, the means, as well as the details of the ultimate ends, are left entirely to the Secretary's discretion. The very nature of the Foreign Service, and in particular, the Secretary's need for flexibility, precludes a rigid formula. Moreover, many factors beyond the control of the Secretary affect the rate of flow, including uncertainties in world events, the general state of the economy and the resulting availability of alternative employment opportunities for top senior officers, the unpredictability of the rate of resignations of senior officers, and budgetary restraints. Accordingly, the Service must exercise discretion in order to reconcile the objectives broadly outlined in the relevant personnel legislation with the President's foreign policy requirements.
The Court could intervene to correct the Secretary's actions in these matters if it appeared that the Service had not made a conscientious effort to comply with the statute. Indeed, the plaintiffs argue that the Service did not go far enough in its efforts to comply. They contend that the statute put a premium on upward flow throughout the ranks of the Service and that congestion at the top was one of the primary problems that the Service was directed to address. By the plain language of the statute, however, Congress required only that the Service's personnel system be "designed" to provide a regular flow, not that it accomplish that goal at any cost and at all times. In the same section, for example, Congress indicated that career patterns must be accommodated to "meet the needs of the Service." 22 U.S.C. § 4001(c)(2)(B).
The record establishes that the Service made a thorough and informed effort to address the flow problem in light of its overall mission, and in fact, a number of promotions were made of junior officers who took advantage of the opportunity to open their windows. With only the vague personnel statute as a guide, the Court is in no position to question the details of the system developed by the Service. Having made the determination that flow was an issue that the Service's personnel system was designed to address, the Court must defer to the Service's conclusions as to what the specifics of the system should be.
The statute specifically provides that the Secretary of State shall make a yearly report to Congress on the effectiveness of the steps taken to provide for flow; and he has done so without disapproval. See 22 U.S.C. § 4001(c)(4)(B). Aside from the reporting requirement, Congress was content to prescribe only general goals in relation to Foreign Service personnel matters. Congress clearly did not want to hinder the Secretary's ability to structure the Foreign Service to address the foreign policy needs as he understood them to be. The reporting requirement gives Congress the information it needs to take further action if necessary. Moreover, the structure of the statute evidences an obvious intent to give Congress primary responsibility for oversight, not the courts. Under such circumstances, the Court can find no aspect of the system developed that violates the statute, nor any basis to overturn the Secretary's actions.
An appropriate Order accompanies this Memorandum.
Gerhard A. Gesell
UNITED STATES DISTRICT JUDGE
April 2, 1992.
ORDER - April 2, 1992, Filed
For the reasons stated in the accompanying Memorandum, it is hereby
ORDERED that defendants' Motion to Dismiss, or in the Alternative, to Affirm the Decision of the Foreign Service Grievance Board is granted; and it is further
ORDERED that plaintiff's petition for review is denied; and it is further
ORDERED that the complaint is dismissed with prejudice.
Gerhard A. Gesell
UNITED STATES DISTRICT JUDGE
April 2, 1992.