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July 12, 2004.


The opinion of the court was delivered by: HENRY KENNEDY, District Judge


David Ackerman ("Ackerman") brings this action against defendants, the United States and Colin Powell, Secretary of State, for personnel decisions resulting in Ackerman's separation from the Department of State's Foreign Service. Ackerman claims he was wrongfully discharged and that the Foreign Service Grievance Board's decision to the contrary was procedurally and substantively flawed in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. Before the court are Ackerman's renewed motion for judgment on the pleadings [Dkt. # 35] and defendants' renewed cross-motion for summary judgment [Dkt. #34]. Upon consideration of the motions, and the record of this case, the court concludes that defendants' motion must be granted and plaintiff's motion must be denied. I. BACKGROUND

A. Statutory Background

  At least once per year, each member of the Foreign Service is evaluated by her supervisor in an Employee Evaluation Report ("EER"). On the basis of this EER, a selection board then competitively evaluates each Foreign Service employee, recommending promotions and salary increases and designating individuals who may not be meeting the standards of their class.*fn1 22 U.S.C. § 4001, 4008. Individuals designated as not meeting performance standards are referred to a Performance Standards Board ("PSB") for further review. The PSB then determines whether the employee should be separated from the Foreign Service. 22 U.S.C. § 4008(b).

  The Foreign Service Act provides a three-step grievance procedure for employees seeking review of the PSB's decision. 22 U.S.C. § 4131-4140. Initially, an individual files a grievance with the agency. If the agency denies the grievance, the individual may then seek review in the Foreign Service Grievance Board ("FSGB" or "Board"). 22 U.S.C. § 4134. Finally, if the FSGB denies the grievance, an aggrieved party may obtain judicial review of the FSGB's final decision in a United States District Court, which reviews the FSGB's decision under the standards set forth under the APA, 5 U.S.C. § 701 et seq.

  B. Factual Background

  Ackerman joined the Foreign Service in 1987 and served ten years in various posts in Asia and the former Soviet Union. In July 1997, Ackerman became the Political/Economic Officer at the U.S. embassy in Bishkek, Kyrgyzstan. His first performance evaluation in Bishkek, covering the period October 1997 to April 1998, was very positive. 1R. 33 (April 1998 EER).*fn2 By October 1998, something had changed, and Ackerman concedes he was temperamental and "short-tempered with his staff." Compl. at ¶ 5.

  In early October 1998, Ackerman engaged in a sequence of "abrasive" exchanges with the embassy's head Foreign Service National ("FSN"),*fn3 under his supervision. Id. Ackerman publicly criticized her in a demeaning manner over a minor incident and then sent her at least one derisive e-mail message in which the possibility of her leaving embassy employment was discussed. Distressed, the FSN brought these interactions to the attention of Ackerman's supervisor, Deputy Chief of Mission ("DCM") Angus Simmons.

  On October 13, 1998, DCM Simmons met with Ackerman to discuss his conduct and, in particular, the harsh e-mail he sent to the FSN. Agitated and using "very strong language," Ackerman abruptly left the meeting and did not report to work the next day. 1R. 27-28 (Dec. 1998 EER). Two days later, Ackerman returned to the embassy and had a brief and heated discussion with the Ambassador, Anne Sigmund, who asked Ackerman not to return to work. Ackerman agreed, claiming he was not well enough to work. Thereafter, Ackerman stopped showing up for work during regular working hours and stopped accepting embassy work assignments. He also requested curtailment from post.*fn4 Ambassador Sigmund considered declaring Ackerman AWOL but did not because "of his emotional state." See 1R. 277 (Sigmund E-mail to Polson (Apr. 24, 2000)). Instead, she granted curtailment and let Ackerman use sick and annual leave until he left Bishkek in December 1998.

  In December 1998, DCM Simmons and Ambassador Sigmund evaluated Ackerman's performance from April to December 1998 in an EER. The EER found satisfactory Ackerman's substantive knowledge, leadership, intellectual abilities, and foreign language skills. However, it rated as sub-par Ackerman's management and interpersonal skills during this period, discussing in detail the events which led to Ackerman's departure from post, including his refusal, after October 13, 1998, to accept work assignments until his request for curtailment was granted, 1R. 24 (Dec. 1998 EER), and his absence from work starting from October 16, 1998. Id. at 1R. 27.

  The following year, the Foreign Service selection board conducted its annual review and, after examining Ackerman's file containing the December 1998 EER, low-rated him and referred him to the PSB. The PSB, in turn, reviewed Ackerman's 1998 EER, along with those from 1992 and 1996, and found that "Mr. Ackerman's actions demonstrate serious deficiencies in leadership, managerial, intellectual, and interpersonal skills that are expected of Mid-Level and even Junior Officers." 1R. 91 (PSB Designation for Separation at 8). The PSB concluded, unanimously, that Ackerman did not meet the standards of his class and should be selected out. 1R 92 (Id. at 9). Ackerman was then informed that he was to be separated from the Foreign Service, effective April 14, 2000. This separation was stayed pending appeal.

  On March 14, 2000, Ackerman filed a grievance with the State Department, claiming that his 1998 EER, considered by the selection board and the PSB, contained erroneous and falsely prejudicial statements. The Department denied the grievance on June 9, 2000, finding no significant procedural error in the EER's preparation and no credible evidence that the statements in the EER were erroneous or falsely prejudicial. 1R. 57-72 (Mugane Ltr. to De La Garza).

  Ackerman then appealed to the FSGB, raising several claims. In the claim relevant to the instant action, Ackerman argued that he had not received performance counseling, as required by internal guidelines, during the rating period for the December 1998 EER, was unaware that his supervisors harbored concerns about his behavior, and was thus unable to adjust his behavior to conform to their expectations. On March 14, 2001, the FSGB found that Ackerman should have received performance counseling sometime in the four months before the events of October 1998. However, the Board concluded that the lack of formal counseling was not a substantial factor in Ackerman's separation from the Foreign Service and upheld PSB's decision. The Board found that Ackerman received informal counseling and had failed to prove the agency would not have separated him anyway. Ackerman was separated from the Foreign Service, effective September 22, 2001.

  Ackerman then sought judicial review of the FSGB decision in this court. On October 29, 2002, this court granted defendants' motion for summary judgment in part, denying all but one of Ackerman's claims. See generally Mem. Op. of Oct. 29, 2002. The court found the FSGB decision arbitrary and capricious on one claim because it assumed, contrary to the record, that Ackerman had received informal counseling sometime before October 1998. Id. at 16-17. Further, the court held that the FSGB improperly placed the burden of proof upon Ackerman to show that performance counseling "would have significantly altered his approach." FSGB 2000-45 at 18. The court remanded the issue to the FSGB, ordering it to apply the standard in 22 C.F.R. § 905.1(c) and "determine whether the agency can show, by a ...

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