that the Court has jurisdiction, and that plaintiff can bring this suit.
The Foreign Assistance Act, 22 U.S.C. § 2385(d), one of the statutes upon which plaintiff relies, provides that one in his situation "shall be entitled" to reemployment upon the termination of his prior appointment. This language imposes a ministerial duty upon one or more of the defendants which is enforceable by mandamus. The Court also has jurisdiction pursuant to 28 U.S.C. § 1331 and the Administrative Procedures Act. See NAACP v. Secretary of HUD, 817 F.2d 149, 157-60c (1st Cir. 1987); Iowa ex rel. Miller v. Block, 771 F.2d 347, 349 (8th Cir. 1985). Indeed, in Califano v. Sanders, 430 U.S. 99, 104-06, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977), a case relied on by defendants, the Supreme Court said that Congress intended by section 1331 to confer jurisdiction on the federal courts to review agency action even where the APA does not of its own force provide for such jurisdiction.
Section 625(d) of the Foreign Assistance Act, 22 U.S.C. § 2385(d), provides that individuals appointed under the Act "shall be entitled . . . to the same benefits as are provided by section 310 of [the Foreign Service Act] [ 22 U.S.C. § 3950] for individuals appointed to the Foreign Service." Section 310, in turn, specifies that any employee "who accepts a limited appointment in the Service with the consent of the head of the agency in which the employee is employed shall be entitled, upon the termination of such limited appointment, to be reemployed in accordance with 5 U.S.C. § 3597." Relying upon the underlined provision of section 310, plaintiff asserts that he is entitled to be reemployed by the Department of Transportation.
The difficulty with that argument is that section 310 also provides that reemployment rights are contingent upon consent for the limited employment by the head of the agency in which the employee is employed, and that plaintiff, concededly, did not receive such consent.
Plaintiff seeks to counter the consent requirement with a number of arguments, only three of which require discussion. First, plaintiff contends that, since section 625(d) -- the operative statute -- does not contain the consent requirement, it is improper to resort to section 310 or any other law to narrow the scope of section 625(d). That argument lacks merit, for section 625(d) refers explicitly to section 310 and the latter must therefore be deemed incorporated in the former.
Second, plaintiff contends that section 625(d) equates those appointed under the Foreign Assistance Act with individuals in the Foreign Service only with respect to benefits but that the consent provision does not constitute a benefit. The Court also rejects that construction. As the ALJ reasoned in this case, the law provides the same benefit, i.e., reemployment rights under certain conditions to both types of employees. Indeed, it is apparent that Congress directed that the Foreign Assistance Act was intended to permit certain of its employees the right to reemployment under identical circumstances as if they were Foreign Service Act employees.
Third, plaintiff relies on language in section 625(d) which directs that the benefits of section 310 shall be available as discussed above, "except to the extent that the President may specify otherwise in cases in which the period of employment or assignment exceeds thirty months" and on Executive Order 12163 in which the President stated that, unless the agency consents, employees shall not be entitled to reemployment rights "in cases in which their service under the appointment exceeds thirty months." Plaintiff asserts that, since his appointment was for less than thirty months, agency consent is not a prerequisite to reemployment rights.
The Executive Order does not save plaintiff's case. The statute refers to the President's authority explicitly to cases in which the period of employment exceeds thirty months, and the President referred to such periods in his Executive Order. In the view of the Court, no inference can be drawn from these facts that agency consent is not necessary with respect to plaintiff and others whose service extends to less than thirty months. Moreover, it would make little sense to interpret the statutes and the Executive Order to provide for reemployment rights contingent upon agency consent for some short-term employees but no others. Nothing in the legislative history supports such an interpretation.
For the reasons stated, the Court is denying plaintiff's motion for summary judgment, and defendants' motion for summary judgment will be granted. An Order is being entered herewith.
HAROLD H. GREENE
United States District Judge
ORDER - March 31, 1993
Upon consideration of defendants' motion to dismiss or, in the alternative, for summary judgment, plaintiff's cross-motion for summary judgment, the oppositions and replies thereto, and the entire record herein; it is this 31st day of March, 1993, in accordance with the Memorandum issued contemporaneously herewith
ORDERED that plaintiff's motion for summary judgment be and it is hereby denied; and it is further
ORDERED that defendants' motion for summary judgment be and it is hereby granted; and it is further
ORDERED that judgment be and it is hereby entered for defendants.
HAROLD H. GREENE
United States District Judge