Paul F. Eggertsen, M.D., complaining of "burn out" and specifically referring to an "alcoholism" problem. AR 82, 475-476, 632, 634. Dr. Eggertsen failed to respond to her letter, until she tried once again to obtain help by calling him on the telephone on March 14, 1984. He then wrote to her recommending that she talk to her supervisor and seek professional counseling concerning her frustrations and problems with her career. AR 477-78.
Despite the fact that provisions of the Foreign Affairs Manual ("FAM") mandate certain steps that should be taken with regard to alcoholic Foreign Service Officers, 3 FAM 695 et seq., the Department took no further action to help Ms. Salleh address her problem.
In August 1985, while in Montreal, Plaintiff filed a discrimination complaint against the Defendant. During the investigation of that complaint, one of the Department's attorneys assigned to its Office of Equal Employment Opportunity and Civil Rights came to the conclusion that Ms. Salleh suffered from an alcohol or other substance abuse problem. Once again, no action was taken with respect to her condition. AR 83, 90.
In 1985, Plaintiff was informed that she would be terminated because she had not been granted "tenure" or career status and was transferred to Washington, D.C.. She remained unassigned for four months, during which time she remained at home and became increasingly morose. AR 83, 97-98; Salleh Affidavit P 9. Her active alcoholism increased. It was during this period of time that she falsified two travel vouchers which she later submitted for reimbursement.
In August of 1986, as part of the settlement of her 1985 discrimination complaint, Ms. Salleh was given additional time in which to obtain tenure. She was then assigned as a Consular Officer to the American Embassy in the Dominican Republic. Despite the fact that she continued to consume alcoholic beverages, Plaintiff was evaluated as an "excellent officer", was recommended for tenure by all her supervisors, and ultimately obtained it in November, 1988. AR 517-525,
Thereafter, she was selected to be a supervisor in the consular section of the American Embassy in London, which was a highly competitive position. She was also nominated to attend the Advanced Consular Course which was available only to consular officers considered to be outstanding by the Department.
Plaintiff returned to the United States in January 1989 to take the Advanced Consular Course. AR 84. She was then interviewed by the Office of Inspector General about the two reimbursement vouchers which she had fraudulently submitted in violation of 18 U.S.C. § 287. AR 84. She admitted having filled out and submitted the fraudulent vouchers.
On January 24, 1989, a federal grand jury in the Eastern District of Virginia indicted Plaintiff on two felony counts of submitting false claims against the government in violation of 18 U.S.C. §§ 287, 2. Complaint, P 18; AR 14, 19.
In January 1989, Plaintiff confronted for the first time the fact that she was an alcoholic, Salleh Affidavit, P 13, and on January 30, 1989, contacted the Department's Chief of the Alcohol Awareness Program, George Sweeney, who determined that she was in the middle to late stages of alcoholism. AR 264. On February 5, 1989, Plaintiff was admitted to a residential treatment program at the Caron Foundation, in Wernersville, Pennsylvania, a facility used by the State Department as a referral source for employees with problems relating to alcoholism and substance abuse. AR 264.
Upon her successful completion of the program, she was discharged on March 10, 1989. She entered the Aftercare Group Series at Suburban Hospital in Washington, D.C., AR 295, and participated on a weekly basis in the Department's Alcoholics Anonymous program. AR 264.
On March 10, 1989, Plaintiff pled guilty to the second of the two felony counts for which she had been indicted. Complaint, P 18; AR 14, 20, 206-210, 245-249. In April 1989, she was sentenced to a three-year suspended prison term, four years on probation, restitution and a fine. AR 75.
In May 1989, the Department proposed to revoke Plaintiff's security clearance as a result of her conviction. On June 21, 1989, the acting Director General of the Foreign Service, William L. Swing, proposed that Plaintiff be separated from the Foreign Service pursuant to 22 U.S.C. § 4010(a)(1) and Department of State regulations, 3 FAM 767.5, because of her felony conviction. AR 254-257. On August 30, 1989, Plaintiff submitted a written response to the proposed separation arguing that the proposed separation for cause for conduct related to alcoholism would constitute illegal discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq ("Rehabilitation Act"). AR 267-283. Subsequently, on December 11, 1989, the Department determined that she should be separated from the Service based on her criminal conviction, AR 258-59,
rejecting her claim that her conduct was related to her alcoholism.
A full adversarial hearing was held before the Foreign Service Grievance Board on August 22, 1991. AR 603-876. Plaintiff never disputed that she committed the crime for which she entered a guilty plea. Instead she argued, and the Board agreed, that this conduct, which occurred before she entered treatment, was a result of her alcoholism.
On May 14, 1992, the Board issued a decision that the Department had not established good cause for terminating Plaintiff and to do so was in violation of the Rehabilitation Act. AR 73-107. The Board found that at the time of the acts giving rise to Plaintiff's criminal conviction, she was an active alcoholic, that her criminal acts were a direct result of that alcoholism, that the Department had done nothing to carry out its responsibilities to deal with Plaintiff pursuant to 3 FAM 695, et seq., and that since returning from in-patient treatment she had been continuously employed by the Department and had received outstanding performance ratings. Consequently, the Board concluded that the Department did not establish that Ms. Salleh should be separated from the Service for such cause as would promote the efficiency of the service. AR 106-107.
On June 12, 1992, the Secretary filed a "Request for Clarification" with the Board. On August 4, 1992, the Board denied the request and no further action was taken by the Department. From October 1990 until June 30, 1993, Plaintiff was assigned to the Visa Office in Washington, D.C. and continued to receive outstanding evaluations. AR 100-105.
On June 1, 1993, the Secretary of State issued a Decision and Order separating Plaintiff from the Foreign Service for such cause as will promote the efficiency of the Service, effective 30 days from the date of the Order. AR 14-40. On June 30, 1993, the Board advised the Secretary of State that he did not possess the legal authority to terminate Plaintiff under the circumstances of her case. AR 940-946. On July 2, 1993, Plaintiff's salary was discontinued by the Department and she has been unemployed since that time.
On November 23, 1993, Plaintiff filed this suit under the Foreign Service Act of 1980, as amended, 22 U.S.C. § 3901 et. seq. and the Administrative Procedure Act, 5 U.S.C. § 701 et. seq., seeking a declaratory judgment that the Board's May 1992 decision is final and enforceable and that the Secretary of State acted ultra vires by involuntarily separating her and failing to reinstate her; reinstatement, back-pay, attorney's fees and other related financial compensation; and a writ of mandamus compelling the Secretary of State to implement the decision of the Foreign Service Grievance Board.
On April 20, 1994, the Board stayed its decision on the issue of Plaintiff's entitlement to attorney's fees pending a decision by this Court, unless Plaintiff could show good cause why it should resolve the issue prior to a ruling by the Court.
On September 16, 1994, the parties filed the pending Cross-Motions for Summary Judgment. Upon consideration of the Motions, Oppositions, Replies, the entire record herein, and the applicable case law, the Court concludes, for the reasons stated below, the Plaintiff's motion for Summary Judgment shall be granted, and the Defendant's Motion for Summary Judgment shall be denied.
III. Conclusions of Law
A. Standard of Review
This issue presented in this case is whether the Secretary of State had the authority, under the governing statutes, to reverse a decision of the Foreign Service Grievance Board that cause for separation of an Officer had not been established, or whether the decision of the Board is final and binding on the Secretary, subject to judicial review under the Administrative Procedure Act.
The merits of the Board's decision are not in issue in this proceeding.
Both Plaintiff and Defendant ask the Court to start its analysis by following the time honored principle of giving substantial deference to the agency's reasonable interpretation of the statute it administers.
The problem is that Plaintiff contends that the "agency interpretation" to be deferred to is that of the Board and the Defendant contends that it is that of the Secretary.
Resolution of that very issue--whether it is the Secretary's or the Board's construction of the statute that should be deferred to--necessitates a decision on the merits of the underlying issue, ie., who has the final decision-making authority. For that reason invocation of talismanic phrases (which often fail to illuminate the issues in the context of particular, complex cases) will be of no help. However, as Chief Judge Edwards said when interpreting the same provision of the Act in Costello v. Agency for International Development, 269 U.S. App. D.C. 47, 843 F.2d 540, 542 (D.C. Cir. 1988),
this case presents "a pure question of statutory construction," INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S. Ct. 1207, 1221, 94 L. Ed. 2d 434 (1987), with respect to which our task is to determine the intent of Congress.
Moreover, even if the Foreign Service Act is "silent or ambiguous with respect to the specific issue",
any construction--whether the Secretary's or the Board's--would have to be rejected if it was not "rational and consistent with the statute," NLRB United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 123 (1987).
In short, the touchstone of the Court's analysis of the conflicting interpretations of the Foreign Service Act offered by the Secretary and the Board is whether the interpretation "is reasonable, consistent with the statutory purpose, and not in conflict with the statute's plain language," Coal Employment Project v. Dole, 281 U.S. App. D.C. 294, 889 F.2d 1127, 1131 (D.C. Cir. 1989).
B. Separation for Cause Under Section 610 of the Act
Section 610 (a) of the Foreign Service Act
governs the issue of separation for cause. It first gives the Secretary, in Section 610 (a)(1), the authority to
separate any member from the Service for such cause as will promote the efficiency of the Service.
It then proceeds, in Section 610 (a)(2), to set forth the specific procedures to be followed in processing Section 610 (a)(1) terminations. In particular it provides:
A member of the Service who is a member of the Senior Foreign Service or is assigned to a salary class in the Foreign Service Schedule and who either (A) is serving under a career appointment, or (B) if separation is to be by reason of misconduct, is serving under a limited appointment, shall not be separated from the Service under this section until the member has been granted a hearing before the Foreign Service Grievance Board and the cause for separation established at such hearing, unless the member waives in writing the right to a hearing. If such cause is not established at such hearing, the Grievance Board shall have the authority to direct the Department to pay reasonable attorneys fees to the extent and in the manner provided by section 4137(b)(5) of this title. The hearing provided under this paragraph shall be in accordance with the hearing procedures applicable to grievances under section 4136 of this title and shall be in lieu of any other administrative procedure authorized or required by this or any other law.