The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge.
DENYING THE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND
GRANTING THE DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT
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
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
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 ...