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Ehrman v. United States

April 11, 2006

JAMES J. EHRMAN, PLAINTIFF,
v.
UNITED STATES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge,

MEMORANDUM OPINION

This matter comes before the Court on the plaintiff's motion [13] for judgment on the pleadings and the defendants' cross-motion [14] for summary judgment. Plaintiff James J. Ehrman, a former Foreign Service officer at the United States Department of State ("Department"), originally filed an agency-level grievance after being designated for selection out of the Foreign Service. After the Department denied the grievance and the Foreign Service Grievance Board (hereinafter "FSGB" or "Board") dismissed the grievance appeal, Ehrman filed the present action requesting judicial review of the FSGB's decision. Ehrman argues that the FSGB acted arbitrarily and capriciously in dismissing his grievance for lack of jurisdiction, in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551-706 (2000), the Foreign Service Act of 1980 ("FSA"), 22 U.S.C. §§ 3901 et seq. (2000), and his due process rights under the Fifth Amendment to the United States Constitution. The defendants, the United States and Secretary of State Condoleezza Rice,*fn1 assert that the FSGB acted reasonably and afforded the plaintiff adequate due process, and that the FSGB's decision to dismiss the grievance is supported by the administrative record. Upon consideration of the parties' filings, the applicable law and the entire record herein, this Court concludes that the FSGB's decision was, in part, arbitrary and capricious. Therefore, Ehrman's motion for judgment on the pleadings*fn2 shall be granted in part and denied in part without prejudice and the defendants' motion for summary judgment shall be denied without prejudice. The matter shall be remanded to the FSGB for reconsideration in accordance with this Memorandum Opinion.

I. BACKGROUND

A. Foreign Service Structure

The FSA provides detailed procedures for the evaluation, promotion, and retirement (voluntary and involuntary) of Foreign Service officers. See 22 U.S.C. §§ 4001-4008. At least every year, each foreign service officer is evaluated by his supervisors in an Employee Evaluation Report. Based on these evaluations, a selection board evaluates each officer on the basis of relative performance within his or her class for promotions, pay raises, awards, low-ranking,*fn3 or for referral to a Performance Standards Board ("PSB"). (22 U.S.C. § 4002; Compl. ¶¶ 23-24; Admin. R. at 75.) The PSB, in turn, evaluates the officer's performance over a period of time and may consequently choose to designate him for "selection out of" (i.e., termination of employment with) the Foreign Service. (Compl. ¶ 26.)

The Foreign Service assigns officers to various skill codes or "cones", and in 1997, three smaller skill codes -- Narcotics, EST (Environment/Science/Technology), and Labor -- were merged into the four generalist cones -- Administrative, Economic, Consular, and Political. (Admin. R. at 59, 78.) In connection with this merger of skill codes, the Department instituted a six-year transition period for affected Foreign Service members, which laid out procedures for selecting a new skill code, if necessary, and offered certain guidelines for how selection boards would evaluate affected employees during this time. (Admin. R. at 58-63, 75, 78.)

B. Factual Background

The plaintiff, James Ehrman, joined the Foreign Service in 1965 and was employed by the Department of State. (Compl. ¶ 9.) After serving in a number of posts, Ehrman was promoted into the Senior Foreign Service as a Counselor class officer in 1996. (Admin. R.at 76.) Between 1994 and 1996, the last three years that Ehrman competed for promotion into the Senior Foreign Service, the annual selection boards evaluated him in the Labor competition category. (Admin. R. at 77.) After his promotion, he competed in the Political competition category. (Admin. R. at 77.)

In 1999, 2000, and 2001, the annual selection boards low-ranked Ehrman. (Admin. R. at 77.) He was consequently referred for PSB review and the 2001 PSB designated Ehrman for selection out of the Foreign Service. (Admin. R. at 3.) In its decision, the PSB noted that he was low-ranked by several promotion panels between 1998 and 2001. (Admin. R. at 3.) The PSB also relied on specific comments by his reviewing officers going back to 1996, dealing with his performance in general and with some labor-specific aspects of it. (Admin. R. at 3-6.)

On August 23, 2002, Ehrman, appearing pro se, initiated a grievance for an agency-level review of his designation for separation by the 2001 Performance Standards Board. (Admin. R. at 7.) Ehrman alleged that the PSB's decision exhibited "institutional bias against labor" causing the PSB to improperly evaluate his years of service in the Labor field. (Admin. R. at 7-8.) The Department denied Ehrman's grievance on September 9, 2002. (Admin. R. at 12.) On September 23, 2002, Ehrman filed an appeal with the FSGB, requesting an opportunity to conduct discovery, a hearing, and interim relief suspending his separation for the duration of the proceedings. (Admin. R. at 1-2.) In an October 18, 2002 order, the FSGB accepted jurisdiction of the appeal (Admin. R. at 37) but denied Ehrman's request for interim relief, reasoning that he would suffer no irreparable harm from separation and that there was little likelihood that he would prevail on the merits of the appeal (Admin. R. at 39).

Following that order, Ehrman attempted to conduct discovery, seeking statistics about Labor officers in the Foreign Service and how their performance compared to that of other Foreign Service officers. (Admin. R. at 46.) The Department provided some documents in response to Ehrman's request, but refused to provide others, reasoning that the information Ehrman was seeking was not related to his grievance. (Admin. R. at 54-57.) Ehrman responded by filing a motion to compel the Department to respond to his interrogatories. (Admin. R. at 80-85.) More communication between Ehrman and the Department followed, in which the Department contested most of the allegations that Ehrman used as a basis for his discovery requests. (Admin. R. 86-124.) In part, Ehrman claimed that as a Labor officer he should have been reviewed in the Labor skill code, and that he should have been protected from low-ranking after the Labor skill code was abolished. (Admin. R. at 88, 90.) The Department disputed Ehrman's claims by providing selective documentation which referred to Ehrman's Political skill code at several points in time after 1988. (Admin R. at 92-93.)On August 26, 2003, the FSGB issued an order in response to Ehrman's motion to compel, in which it ruled that the Department had discharged its obligations. (Admin. R. at 131.) Without analyzing Ehrman's claims, the FSGB quoted several statements from the Department's submissions and concluded that Ehrman's discovery requests were not relevant to his grievance appeal. (Admin. R. at 4.) In response to Ehrman's letter reiterating his claims, the FSGB issued a new order stating that it had found no good cause to revisit its August 26, 2003 discovery order.(Admin. R. at 150.)

On January 2, 2004, the FSGB issued a decision dismissing Ehrman's appeal, reasoning that it had no jurisdiction over this matter because Ehrman had challenged the judgment of the PSB, which was not grievable under 22 U.S.C. § 4131(b)(2). (Admin. R. at 183.) Ehrman submitted a response to the FSGB's decision, which the FSGB treated as a motion for reconsideration and denied. (Admin. R. at 203.) Ehrman, who to this point had appeared pro se, retained counsel and filed an amended motion for reconsideration on February 27, 2004. (Admin. R. at 206-258.) The FSGB subsequently denied this motion on May 17, 2004, relying on the discretion granted to it by 22 C.F.R. § 910.1. (Admin. R. at 287.) Ehrman then initiated the present action for judicial review of the FSGB's decision.

II. DISCUSSION

A. Legal ...


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