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
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.
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 ...