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August 8, 2002


The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge.




A. Factual Background

The plaintiff began working as a foreign service officer with the U.S. Department of State in November 1958. Compl.*fn2 ¶ 5. In 1998 and thereafter, the Department of State accused the plaintiff of questionable activities involving national security. Id. Pursuant to 5 U.S.C. § 7532(a), which authorizes the head of a federal agency to suspend an employee when "necessary in the interests of national security," the defendant suspended the plaintiff without pay on February 7, 1990 and issued a proposed removal action. Id. ¶ 6. By letter dated July 3, 1990, the plaintiff tendered his resignation and submitted an application for retirement to the defendant. Id. ¶ 7. On July 5, 1990, the plaintiff, through his counsel, withdrew his request for a hearing on his proposed removal. Id. ¶ 8.

On July 8, 1990, the Department of State informed the plaintiff that it was considering his resignation. Id. ¶ 9. On November 5, 1990, the Department of State removed the plaintiff from his employment pursuant to 5 U.S.C. § 7532, stating that "`credible and persuasive evidence' supported the charges against him." Admin. Record of Proceedings dated May 1, 1998 ("A.R.") at 136.*fn3

In 1991, the plaintiff renewed his July 1990 request for retirement and challenged the defendant's authority to deny him retirement benefits. Compl. ¶ 11. In a letter dated April 2, 1992, the defendant denied the plaintiff's retirement application claiming that the defendant "declined to consent" to his voluntary retirement. A.R. at 133. On August 7, 1992, the plaintiff submitted an application for a refund of his mandatory retirement contributions on a form provided to him by the defendant known as optional form 138 ("OF-138"). Def's. Mot. for Summ. J. filed Mar. 15, 2002 ("Def.'s Mot. for Summ. J.") at 7. The form stated that "[if] you have five or more years of Federal civilian service you may be entitled an annuity which will be forfeited by payment of this refund." A.R. at 117. The form was apparently designed for employees who had not yet met the age and length-of-service requirements for retirement. Compl. ¶ 15. Thereafter, in October 1992, the defendant refunded the plaintiff's mandatory contributions including interest in the amount of $76,256.87. A.R. at 22.

B. Procedural History

On March 27, 1995, the plaintiff filed a grievance with the FSGB challenging the defendant's April 2, 1992 decision denying his retirement application. Id. at 19. On February 20, 1996, the FSGB denied the plaintiff's grievance stating that the defendant's withholding of consent for the plaintiff's retirement was determinative and proper because the defendant removed the plaintiff for national security reasons under 5 U.S.C. § 7532. Id. at 82-87. The FSGB further stated that the plaintiff forfeited any claim to an annuity when he withdrew his mandatory contributions in 1992. Id.

On April 18, 1996, the plaintiff filed an appeal with the FSGB. Id. at 19. On January 15, 1997, the FSGB concluded that the plaintiff's waiver and forfeiture of any entitlement to annuity was unambiguous, valid, and binding. Id. at 30. On July 8, 1997, the plaintiff filed a request for reconsideration of the FSGB's decision, which the FSGB denied on August 14, 1997. Id. at 1-4. Consequently, the plaintiff filed his complaint with this court to obtain judicial review of the FSGB's decision. The court remanded the case to the FSGB, holding that the FSGB's decision was arbitrary and capricious because before reaching its decision that the plaintiff's waiver was valid and binding, the FSGB failed to address the plaintiff's argument that he was prohibited under section 815 ("section 815") of the Foreign Service Act of 1980 ("FSA"), as amended, 22 U.S.C. § 3901 et seq., from obtaining a refund. Bloch v. Albright, 43 F. Supp.2d 17, 21 (D.D.C. 1999); 22 U.S.C. § 4055(a)(1)(D).

Upon remand, the FSGB again denied the plaintiff's grievance.2d A.R. at 92-122. The FSGB considered the plaintiff's argument that the FSA prohibited him from waiving entitlement to an annuity. Id. at 119. While recognizing that the FSA does preclude a refund in cases where an individual would become eligible to receive an annuity under the retirement system within 31 days after filing an application, the FSGB found that at the time of the plaintiff's application for a refund, the plaintiff was ineligible to receive an immediate annuity within the 31 day period. Id. at 109. The FSGB ruled that the plaintiff did not meet all of the requirements of 22 U.S.C. § 4051 ("section 811") for entitlement to an annuity upon his resignation from the foreign service on July 3, 1990. Id. Specifically, the FSGB decided that while the plaintiff had met the age and service requirements of section 811, he did not meet section 811's requirement that the defendant must consent to the retirement. Id. Further, the FSGB determined that after the defendant denied the plaintiff's request for voluntary retirement, the plaintiff remained eligible for the payment of a deferred annuity at age 60 under 22 U.S.C. § 4050 ("section 810"). Id. The FSGB discovered, however, that the plaintiff exercised his right of election under section 810 to obtain a refund of his mandatory contributions to the retirement fund, rather than leaving the contributions in the fund and receiving an annuity commencing at age 60. Id. at 109-10, 116-17. Thus, the FSGB determined that the plaintiff did not qualify to receive an immediate annuity, but that he did qualify to receive a lump-sum refund of his retirement contributions. Id. Accordingly, the FSGB denied the plaintiff's grievance concluding that the plaintiff's waiver of entitlement to the immediate annuity and his election of a lump-sum payment was lawful. Id. at 117, 121.

The plaintiff now appeals to this court for judicial review of the FSGB's latest decision concerning (1) whether the defendant exceeded his statutory and regulatory authority when denying consent to the plaintiff's retirement, (2) whether the plaintiff knowingly and voluntarily waived his right to his immediate annuity (also referred to as a pension) when withdrawing a lump-sum payment of his contributions to his pension, and (3) whether the defendant denied the plaintiff's constitutionally guaranteed due process rights by denying the plaintiff retirement and pension benefits. Pl.'s Mot. for Summ. J. at 2.


A. Legal Standard for Summary Judgment

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one of which the resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.

In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id.

In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Greene, 164 F.3d at 675. If the evidence "is merely colorable, or is not significantly ...

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