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BETTUCCI v. UNITED STATES

March 26, 1998

FRANK A. BETTUCCI, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants.



The opinion of the court was delivered by: LAMBERTH

MEMORANDUM OPINION

 This matter comes before the court on defendants' Motion to Affirm the Decision of the Foreign Service Grievance Board ("FSGB"). On March 12, 1989, plaintiff Frank A. Bettucci was mandatorily retired as an employee of the Foreign Service in the Agency for International Development ("AID"). Bettucci appealed the AID's decision to the FSGB and the FSGB affirmed the AID's decision. Bettucci subsequently filed this suit for review of the conclusion reached by the FSGB. Upon consideration of the submissions of the parties and the relevant law, defendants' motion to affirm the decision of the Foreign Service Grievance Board will be granted.

 I. Background

 In 1966, plaintiff Frank Bettucci entered the Foreign Service and was employed by the Agency for International Development ("AID" or "Agency") on a limited appointment basis, grade FSLR-4. During his tenure with the agency, Bettucci served in varying employment capacities throughout the world in locations including Vietnam, Haiti, Burundi, Upper Volta, and Washington, D.C. In 1981, his grade was adjusted to grade FS-02 and in 1983 he was promoted to grade FS-01.

 After his promotion to grade FS-01, Bettucci elected to compete to enter the Senior Foreign Service. In November 1987, the Senior Threshold Selection Board ("STB") ranked plaintiff in the lower 5% of all career Foreign Service Officers in grade FS-01. The Board subsequently referred Bettucci's evaluation file to the 1987 Performance Standards Board ("PSB") pursuant to 22 U.S.C. § 4008. *fn1" This Board concluded that Bettucci did not meet the requisite standards of a grade FS-01 officer and it was recommended to the Director of Personnel that he be mandatorily retired from the Foreign Service. The Director of Personnel concurred with the Board's recommendation and on January 19, 1988, the Director informed Bettucci that he failed to meet the standards of his class and as such, he would be mandatorily retired on March 12, 1988 pursuant to § 608(b) of the Foreign Service Act of 1980. See 22 U.S.C. § 4007(c)(1). *fn2"

 In response to this determination, Bettucci filed a grievance with the AID which the Agency eventually denied in its entirety. This grievance asserted the following claims: (1) that the 1987 Senior Threshold Selection Board violated its Precepts by low ranking Bettucci within his class; (2) that the 1987 Performance Standard Board violated its Precepts by recommending that plaintiff be mandatorily retired; (3) that the Senior Threshold Selection Board and the Performance Standard Board improperly considered Bettucci's corridor reputation; (4) certain portions of Bettucci's Employee Evaluation Reports ("EER") contained inaccurate, erroneous, and falsely prejudicial materials which wrongfully influenced the Senior Threshold Selection Board and the Performance Standard Board in making their recommendations concerning him; (5) the AID failed to follow its own rules and regulations governing the assignment of Bettucci to his posts of duty; (6) the AID failed to provide Bettucci with adequate training to enable him to remain competitive in his position; and (7) the AID violated its own rules and regulations by the manner in which it implemented the Performance Standard Board's recommendation that Bettucci be mandatorily retired from the Foreign Service. Bettucci presented this grievance to the AID and after an investigation and review of his submissions, the agency affirmed the decision imposing mandatory retirement on him.

 In October 1988, Bettucci appealed the AID's decision to the Foreign Service Grievance Board ("FSGB" or "Board") and on March 10, 1989, the AID granted Bettucci's request for prescriptive relief. This stay was subsequently-revoked at the Agency's request on May 30, 1989 and Bettucci's mandatory retirement became effective on June 30, 1989.

 The original grievance presented to the Board by Bettucci included numerous complaints with some dating back to his entry into the Service in 1966. In light of the statutory time limitations for filing grievances contained in section 1104(a) of the Foreign Service Act, 22 U.S.C. § 4134, and the large quantity of disparate material presented to the Board, the Board requested a pre-hearing meeting of the parties on February 22, 1989. Upon examination of the issues and motions before it, the Board affirmed its prior ruling as to which issues had been properly raised for consideration before the Board in its order of March 26, 1989. The Board decided that the various financial claims presented by Bettucci in his original submission to the Agency should be considered separately from issues related to the Agency's recommendation that Bettucci be mandatorily retired. The Board issued a decision denying the financial claims on January 29, 1990.

 The Board proceeded to identify the substantive issues related to his mandatory retirement and conducted a separate hearing on these issues. In its May 14, 1990 decision, the Board identified the issues it considered as follows:

 
I. Whether [AID] violated the rules, regulations, and/or procedures governing the assignment process in reference to the plaintiff.
 
II. Whether [AID] violated the rules, regulations, and/or procedures governing the training opportunities granted or denied [plaintiff].
 
III. Whether the Employee Evaluation Reports ("EERs") relied on by AID in the proceedings to mandatorily retire [plaintiff] were inaccurate, erroneous, or falsely prejudicial.
 
IV. Whether the 1987 [STB] violated applicable precepts, rules, regulations, or policies in low-ranking [plaintiff] and referring him to the Performance Standards Board ("PSB).
 
V. Whether the 1987 [PSB] violated applicable precepts, rules, regulations or policies in recommending that [plaintiff] be mandatorily retired.
 
VI. Whether improper matters, including but not limited to [plaintiff's] "corridor reputation", were factors in or considered in the proceedings to mandatorily retire [him].
 
VII. Whether [AID] violated applicable rules, regulations or policies in the decision to mandatorily retire [plaintiff] or in the implementation of that decision.

 FSGB's May 14, 1990 Op. at 3.

 The Board rejected each of Bettucci's claims after a hearing and its consideration of the arguments raised by both Bettucci and the Agency. Bettucci filed a complaint in this court seeking judicial review of the FSGB's January 29 and May 14, 1990 decisions. This court referred Bettucci's complaint to United States Magistrate Deborah Robinson for preparation of proposed findings of fact and recommended disposition of the defendants' motion to affirm the FSGB's findings.

 Magistrate Judge Robinson answered each of the above issues in the negative and affirmed the conclusions reached by the Board. In response to Magistrate Judge Robinson's decision, Bettucci filed his objections to Magistrate Judge Robinson's Report and Recommendation. The issue presently before this court is whether, upon de novo review, the evidence supports the findings of law and fact as reached by Magistrate Judge Robinson in order to permit this court to adopt the Magistrate Judge's Report and Recommendation.

 II. Analysis

 A. Standard of Review

 In 1980, Congress established "the framework for hiring, promoting, and retaining Foreign Service Officers." Molineaux v. United States, 304 U.S. App. D.C. 238, 12 F.3d 264, 264 (D.C. Cir. 1994) (citing Foreign Service Act of 1980, Pub. L. No. 94-465, 94 Stat. 2071 (1980)). The Foreign Service implemented an "up or out system" with officers granted career appointments after a probationary period. Once an officer has secured a career appointment, the officer is required to be promoted into the Senior Foreign Service within twenty years. If such a promotion is not attained, the officer is involuntarily retired. Id. (citing 22 U.S.C. § 4007).

 The Foreign Service Act sets forth detailed procedures pursuant to which the Foreign Service Grievance Board is to conduct hearings at the behest of an individual subject to an adverse employment decision within the Foreign Service. See 22 U.S.C. § 4136. These provisions require the FSGB to conduct a hearing at the request of a grievant in any case which involves disciplinary action or the retirement of a grievant from the Service under section 4007 or 4008. As stated, Bettucci, plaintiff in the instant case, was mandatorily retired pursuant to section 4008. Therefore, he was entitled to a hearing under section 4136. As required by statute, the hearing was conducted by the FSGB and Bettucci presently seeks review in this court of the FSGB's decision to affirm the Agency's determination to mandatorily retire him.

 Judicial review of a final decision of the Foreign Service Grievance Board is set forth in section 1110 of the Foreign Service Act, as amended. See 22 U.S.C. § 4140. This section provides for judicial review of the final decisions of the Board in federal district court according to the provisions of the Administrative Procedures Act. *fn3" The pertinent section of the APA, section 706(2), defines the possible standards of judicial review of the Grievance Board's decision:

 
The reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be
 
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
 
(B) contrary to constitutional right, power, privilege, or immunity;
 
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
 
(D) without observance of procedure required by law;
 
(E) unsupported by substantial evidence in a case subject to 5 U.S.C. §§ 556 and 557 or otherwise reviewed on the record of an agency hearing provided by statute;
 
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

 5 U.S.C. § 706.

 In determining which standard to apply, a reviewing court must determine whether the Board's action constitutes formal or informal adjudication. Formal adjudications are those required by statute to be considered through on-the-record proceedings and involve the development of a record through a trial-type hearing. Smith v. Office of Civilian Health and Med. Program of Uniformed Servs., 97 F.3d 950, 954 (7th Cir. 1996). In essence, formal adjudications are designed to produce a record that is to be the basis of the agency action. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971). An informal adjudication, by contrast, is "a residual category including all agency actions that are not rulemaking and that need not be conducted through 'on the record' hearings." Izaak Walton League of America v. Marsh, 210 U.S. App. D.C. 233, 655 F.2d 346, 361 n.37 (D.C. Cir. 1981).

 In the instant case, the FSGB is mandated by statute to conduct a hearing at the request of a Foreign Service employee who has been subjected to retirement pursuant to section 4007 or 4008. The FSGB procedures as set forth in this statute require testimony to be given under oath, provide for examination and cross-examination of witnesses, permit the reception of oral or documentary evidence by the Board, and require a verbatim transcript to be made of any hearing to be included in the record of proceedings. In light of the nature of the mandatory hearing conducted by the FSGB, this court concludes that such hearings must be characterized as formal adjudications for the purpose of determining what standard of review should be applied to the Board's ultimate determination.

 Because it is this court's conclusion that the process employed by the Board is tantamount to a formal adjudication, judicial review of the Grievance Board's decision is limited to determining whether the Board's decision was supported by substantial evidence and was procedurally correct. In this case, Bettucci has the burden of showing that the Grievance Board made an error that was a substantial factor in causing his mandatory retirement. See Reiner v. United States, 222 U.S. App. D.C. 391, 686 F.2d 1017, 1021 (D.C. Cir. 1982). In reviewing the Board's determination, this court is not permitted to substitute its judgment for the Board's decision. See Citizens to Preserve Overton Park, 401 U.S. at 416. However, the Court must give the Board's determination a "thorough, probing, in-depth review." Id. at 415.

 Although the court is required by statute to give great deference to the determinations of the Board, the court may set aside findings of the Board if they are not supported by substantial evidence. Substantial evidence requires that the evidence in support of an agency finding must be sufficient to support the conclusion of a reasonable person after considering all of the evidence in the record as a whole, not just the evidence that is consistent with the agency's finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 95 L. Ed. 456, 71 S. Ct. 456 (1951). "The substantiality of the evidence must take into account whatever in the record fairly detracts from its weight . . . [and] courts [must] consider the whole record." Id. The Board's determinations are presumed to be valid, but only when they are supported by substantial evidence and are not contrary to statutory, procedural, or constitutional requirements. See Motor Vehicle Manufacturers v. Ruckelshaus, 231 U.S. App. D.C. 240, 719 F.2d 1159 (D.C. Cir. 1983).

 B. Analysis of the Board's Determination to Mandatorily Retire Bettucci

 As stated, the determinations of the FSGB must be supported by substantial evidence and may not be contrary to statutory, procedural, or constitutional requirements. Bettucci's opposition to defendants' motion to affirm the decisions of the FSGB challenges the ultimate conclusions reached by the Board in its January 29, 1990 and May 14, 1990 decisions and asserts various procedural and statutory deficiencies in the hearings conducted by the Board prior to these decisions. Accordingly, this court will first consider the procedural and statutory arguments set forth by Bettucci and subsequently consider the remaining substantive challenges to the conclusions reached by the Board as presented by Bettucci.

 1. Bettucci's Claims of the Board's Procedural and statutory Deficiencies

 Bettucci raises five preliminary issues, each alleging that his hearing before the Board was procedurally deficient in some manner. These issues include the following:

 (1) Whether the Board erred by wrongfully limiting its jurisdiction to hear all issues raised by Bettucci.

 (2) Whether the Board erred by revoking prescriptive relief during the proceedings.

 (3) Whether the Board failed to ensure a full and fair hearing and failed to properly give Bettucci the consideration due a pro se litigant.

 (4) Whether the Board abused its discretion in refusing to permit Bettucci to call essential witnesses and whether the Board permitted the Agency to intimidate Bettucci's witnesses.

 (5) Whether bias on the part of the Board deprived Bettucci of a fair hearing.

 a. Whether the Board Erred by Limiting Its Jurisdiction to Consider Only Those Issues that Were Not Time Barred

 In his initial grievance, Bettucci raised ten separate claims for financial reimbursement allegedly incurred during the course of his tenure with the Agency. The Board held that six of the issues were time barred pursuant to section 1104(a) of the Foreign Service Act, 22 U.S.C. § 4134, because they were not filed within three years of their occurrence as required by statute.

 Section 1104(a) states that:

 
(a) A grievance is forever barred unless it is filed with the Department within a period of 3 years after the occurrence or occurrences giving rise to the grievance or such shorter period as may be agreed upon by the Department and the exclusive representative. There shall be excluded from the computation of any such period any time during which, as determined by the [Board], the grievant was unaware of the grounds for the grievance and could not have discovered such grounds through reasonable diligence.

 22 U.S.C. § 4134(a).

 In support of his argument that the Board erred by limiting its jurisdiction to actions that were not time barred, Bettucci contends that the grievances he has complained of are in the nature of "continuing violation[s] of the rules, regulations, and policies designed to deprive Bettucci of his right to be treated fairly and equally to his peers in the foreign service of the United States." Opp. to Mot. to Affirm at 64. Bettucci claims that the continuing nature of the alleged mistreatment that he has received constitutes a pattern of harassment and reprisal. He admits that "a number of issues that [he] raised were based on incidents outside of the three (3) year statute of limitations for the presentation of grievances." Id. at 69. Paradoxically, Bettucci then contends in the very next sentence that the record is clear that he did present grievances on these issues within the applicable time frame, but that these grievances were totally ignored by the Agency.

 Aside from the conclusory allegations set forth in Bettucci's opposition to the motion to affirm the Board's conclusion, the record is devoid of any showing that the Board's jurisdictional determinations were improper or not supported by substantial evidence. The Board's preliminary examination of jurisdictional issues is mandated by regulation and was proper in this case. See 22 C.F.R. § 904.2. *fn4" Bettucci has failed to set forth any evidence establishing that he was unaware of the grounds for the claims documented in the grievance or unable to discover them through the exercise of reasonable diligence. Indeed, defendants are correct in their assertion that Bettucci presents no causal connection between the alleged mistreatment he received and his failure to present the untimely issues in a timely manner. Accordingly, it is this court's conclusion that the Board did not err in limiting its jurisdiction to the grievances that were timely filed.

 b. Whether the Board Properly Revoked Bettucci's Prescriptive Relief

 On March 10, 1989, the Agency granted Bettucci's request to stay his involuntary separation pending a final resolution of his grievance. On May 30, 1989, the Board granted the Agency's request to revoke the stay. Bettucci claims that the revocation of the stay was contrary to the regulations governing the award of prescriptive relief and therefore, the Board's actions were improper. Moreover, Bettucci contends that "the Board prejudged evidence prior to it being heard by the Board and had already arrived at a decision prior to the conclusion of the hearing." Opp. to Mot. to Affirm at 73.

 The applicable statute and regulation regarding prescriptive relief provide that:

 
(a) If the Board determines that the agency is considering involuntary separation of the Grievant . . . which is related to a grievance pending before the Board, and that such action should be suspended, the agency shall suspend such action until the Board has ruled on the grievance.

 22 C.F.R. § 904.4(a). See also 22 U.S.C. § 4136(8). As this regulation indicates, the suspension of any action pending final determination by the Board is an action taken at the Board's discretion.

 In the application for revocation of the prescriptive relief, the Agency argued that equitable principles should govern such a determination. In light of the absence of any case law construing this provision of the Foreign Service Act, it is this court's conclusion that it was not inappropriate for the Board to rely on equitable principles in determining whether Bettucci's prescriptive relief should be revoked. In this case, the balance of the equities tipped in favor of revoking the prescriptive relief at issue. The Board considered the cost to the Agency of continuing to compensate Bettucci during the remainder of the proceedings and the likelihood that Bettucci would suffer irreparable harm should the prescriptive relief be revoked.

 Because Bettucci failed to claim any compensable damage resulting from the revocation of the prescriptive relief, it cannot be said that the revocation resulted in irreparable harm. Had Bettucci prevailed in his grievance claim, an award of backpay, attorney's fees, the correction of his record, and other relief could have been awarded to him. As such, Bettucci would have been fully compensated despite his claims to the contrary. Given the fact that the Board affirmed the Agency's decision to mandatorily retire Bettucci, any alleged error resulting from the revocation of the prescriptive relief could be characterized as harmless.

 c. Whether the Board Failed to Afford Bettucci a Full and Fair Hearing Given His Pro Se Status

 During the course of the proceedings before the Board, Bettucci claims that he was forced to terminate the services of his retained counsel and that he proceeded pro se after unsuccessful efforts to locate alternate counsel. Bettucci contends that despite assurances from the Board that his pro se status would be taken into consideration, the Board failed to accommodate him. Bettucci asserts that the deprivation of a fair hearing is evidenced by the refusal of the Board to allow Bettucci to complete his oral testimony and the frequent interruption of this testimony, by permitting attorneys for the Agency to object to testimony offered by Bettucci and to cross-examine Bettucci during the course of his testimony, and "by the obvious harsh rush to judgment [by the Board] without consideration of developing a full and complete record on which a well reasoned decision could be made." Opp. to Mot. to Affirm at 80.

 The record is devoid of any evidence that the Board failed to consider Bettucci's pro se status in the treatment of either Bettucci or the matter before the Board. Indeed, Bettucci's current criticisms of the manner in which the Board handled his case are belied by his own statement on the record made during the course of the proceedings:

 
I would like to add to that and say I certainly appreciate your patience in my lack of experience and greenness in conducting these interviews and presenting my testimony, because I know you have been very kind and patient with me on that, and I appreciate that.

 Record of Proceedings ("ROP"), Part III, May 15, 1989 Trans. at 299.

 Bettucci's questioning of the cross-examination conducted by counsel for the Agency during his own testimony is rebutted by a party's right as specified by statute to conduct cross-examination of witnesses at the hearing. See 22 U.S.C. § 4136(3) ("Each party . . . shall be entitled to examine and cross-examine witnesses at the hearing . . ."). There is nothing in the record to suggest that the examination of Bettucci was conducted in a harassing or vexatious manner. Bettucci's attempts to call into question the manner in which counsel for the Agency voiced objections to certain evidence is equally without merit. In addition to there being no evidence in the record to support such a claim, at the conclusion of the hearing before the Board, the Chairman commented:

 
I want to commend Counsel, too, and I think you [Bettucci] will agree that they have--particularly when you were not represented by counsel--they have entertained some of the things that they would have instinctively objected to if you had counsel. I know I could see some restraint on their part. That should be acknowledged. It may not have seemed that way to you because you did catch at times a deluge of objections, but there again we tried to protect you from that, too.

 ROP, Part III, May 15, 1989 Trans. at 300.

 Such observations by the Chairman and the lack of evidence to the contrary in the record lead this court to conclude that Bettucci was afforded a full and fair opportunity to proceed given his pro se status. The Board not only acted properly, it also gave more than ample consideration to Bettucci's situation in this case. See FSGB May 14, 1990 Op. at 67-70 (detailing the Board's treatment of Bettucci).

 d. Whether the Board Acted Improperly with Respect to Bettucci's Witnesses

 Bettucci next contends that the Agency and the Board acted improperly in the treatment of Bettucci and his witnesses. The improper treatment alleged by Bettucci centers on the number of witnesses he was permitted to call at the hearing before the Board and allegations ...


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