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Wright v. Foreign Service Grievance Board

August 3, 2007

PHILLIP E. WRIGHT, PLAINTIFF
v.
FOREIGN SERVICE GRIEVANCE BOARD, ET AL. DEFENDANTS



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiff Phillip E. Wright is a former member of the Foreign Service who resigned from his position as a Public Affairs Officer in Kinshasa, Congo, on July 14, 2005, pursuant to the terms of a settlement agreement he reached with the State Department. The settlement agreement provided, in part, that plaintiff would relinquish all future administrative and judicial claims against the State Department. Prior to his resignation, plaintiff had filed a grievance appeal with the Foreign Service Grievance Board ("FSGB") on March 6, 2002, requesting that the State Department expunge or otherwise amend allegedly inaccurate and falsely prejudicial material in his official personnel file. Plaintiff, proceeding pro se, now brings this action against the FSGB, the State Department, and Condoleeza Rice in her official capacity as United States Secretary of State in part as an appeal of the FSGB's July 8, 2003 denial of plaintiff's grievance. Plaintiff also seeks a declaratory judgment that the July 14, 2005 settlement agreement is void (1) for being signed under duress, (2) for lack of consideration, (3) as against public policy, or (4) as a violation of due process.

Defendants move for summary judgment on plaintiff's challenge to the FSGB's July 8, 2003 decision (herein referred to as Count II), asserting that it is barred by the settlement agreement. Defendants further contend that even if the settlement agreement did not bar plaintiff's action, the FSGB's decision was neither arbitrary, capricious, an abuse of discretion, nor otherwise contrary to law. Defendants also move pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) to dismiss plaintiff's claim for rescission of his July 14, 2005 settlement agreement (herein referred to as Count III), alleging that the Court lacks subject-matter jurisdiction to entertain the claim and that plaintiff has failed to state a claim upon which relief may be granted. In addition, plaintiff has filed a motion for summary judgment as part of his opposition.

Upon consideration of the parties' submissions and for the reasons set forth below, the Court will grant defendant's motion for summary judgment on Count II. The Court will also grant defendant's motion to dismiss plaintiff's Count III non-constitutional challenges to the settlement agreement for lack of subject-matter jurisdiction. The Court will grant defendant's motion to dismiss plaintiff's Count III constitutional claim -- that the FSGB statutory scheme violates due process -- for failure to state a claim upon which relief may be granted. Finally, the Court will deny plaintiff's motion for summary judgment.

BACKGROUND

Plaintiff Phillip E. Wright began his employment with the Foreign Service of the United States Information Agency ("USIA") in 1985.*fn1 A.R. 44. From 1985 to 1997, plaintiff served in field offices in South Africa, Macedonia, and China, as well as in the USIA Operations Center in Washington, D.C. See A.R. 44-48. Plaintiff then took an extended period of leave without pay before beginning work in the State Department Declassification Center in 1999. Pl.'s Ex. 1 at 14.

The material events in the present action began when plaintiff received a "low ranking" by the 2000 Selection Board (SB) and was referred to the 2000 Performance Standards Board (PSB). A.R. 44-49; 170-72. The 2000 PSB issued plaintiff a "Designation for Separation," mandating his "selection out" of the Foreign Service for failure to maintain the standards of performance required of his class. A.R. 44-49. The Foreign Service utilizes an "up or out" personnel system, see Molineaux v. United States, 12 F.3d 264, 265 (D.C. Cir. 1994), whereby each year an SB reviews employees of the same grade for promotion and ranks "in order of merit those members recommended for immediate promotion." Defs.' Ex. 4 at 7. Each member reviewed for promotion is also reviewed for low ranking, and the SB must low rank five percent of the officers in each class reviewed. A.R. 170; see also 22 U.S.C. §§ 4002-03; Defs.' Ex. 4 at 8. The SB rankings are based largely upon annual Employee Evaluation Reports ("EERs"). See A.R. 56, 63-64, 165-172; see also Pl.'s Ex. 1 at 5-10; Defs.' Ex. 3 at 3; Defs.' Ex. 4 at 2. The SB refers employees with the lowest rankings to the PSB, which may recommend that the Foreign Service Officer (FSO) be selected out. See 22 U.S.C. § 4008; see also Defs.' Ex. 4 at 9; Defs.' Ex. 5 at 3-5. Regardless of whether an FSO is selected out, those who are not promoted from one class to the next within a specified amount of time ("time in class") are automatically retired. See 22 U.S.C. § 4007(c).

If a member of the Foreign Service wishes to contest an EER as inaccurate, incomplete, or falsely prejudicial, or wishes to challenge a PSB Designation for Separation as contrary to law or predicated upon an alleged inaccuracy, omission, error, or falsely prejudicial information, he may file an agency-level grievance with the State Department. 3 Foreign Affairs Manual ("FAM") § 4412(c)(1), (5); 22 U.S.C. § 4131(a)(1)(A), (E); 22 C.F.R. § 901.18(a)(1), (5) (2007); 3 FAM § 4431-34. The State Department will review the grievance and issue a decision "within 90 days from the date of receipt of the initial written presentation of the grievance." 3 FAM § 4434.4(a). If a grievant is unsatisfied with the State Department's resolution of his grievance, he may appeal to the FSGB within sixty days. 3 FAM § 4451-52; 22 C.F.R. § 903.1 (2007).

In accordance with this procedure, plaintiff filed a grievance with the State Department on May 9, 2001, contesting his 2000 Designation for Separation; the low rankings he received in 1996, 1997, 1999, and 2000; and eight EERs spanning rating periods from 1986 to 1995. See A.R. 30-43. Upon examination of plaintiff's grievance, the State Department determined that there were "major procedural errors" in one of plaintiff's EERs, and ordered that the EER be expunged from plaintiff's official personnel file. A.R. 07-08; 222-23. Because the 2000 SB and 2000 PSB had drawn upon this EER in their assessments of plaintiff, the State Department issued an interim decision on June 19, 2001, rescinding plaintiff's 2000 Designation for Separation and deleting plaintiff's 2000 low ranking from its records. Id. However, on December 28, 2001, the State Department denied plaintiff's request to expunge or amend the remaining seven contested EERs, as well as his request to delete his 1996 and 1999 low rankings. A.R. 206-15.

Plaintiff appealed the partial denial of his grievance to the FSGB on March 6, 2002, seeking to have four EERs covering his service in China expunged in their entirety and three others (two from his service in Macedonia and one from his service in South Africa) amended. A.R. 02-06; 201; 530. Plaintiff further challenged his 1996 and 1999 low rankings on the grounds that they were both based upon the contested EERs, and on the basis that the 1999 SB Chairperson harbored personal hostility towards him. Id. On March 26, 2002, plaintiff submitted a discovery request to the State Department seeking to propound 945 interrogatory questions to forty-six individuals. A.R. 269-442. The State Department objected to plaintiff's request as unduly broad and in excess of the standard thirty-interrogatory limit. A.R. 443-46. After a lengthy debate between plaintiff and the State Department over the number of allowable interrogatories, the FSGB issued a final decision on October 1, 2002, mandating that plaintiff submit a revised list of thirty interrogatories within fifteen days. A.R. 447-92. When plaintiff failed to comply, the FSGB deemed discovery closed on December 2, 2002. A.R. 500-07.

On July 8, 2003, the FSGB issued its decision denying plaintiff's appeal in full. A.R. 527-42. First, the FSGB denied plaintiff's request to remove or amend his seven contested EERs, holding that the "EERs met the general standards for its review of employee evaluations." A.R. 529; see also A.R. 533-36. Because the validity of the EERs was affirmed, the FSGB found no basis upon which to expunge plaintiff's 1996 low ranking. See A.R. 536. Finally, the FSGB rejected plaintiff's argument that his 1999 low ranking should be deleted, finding no evidence that "an adversarial relationship ever existed" between plaintiff and the 1999 SB Chairperson. A.R. 536-37.

While the FSGB appeal was pending, plaintiff received a low ranking by the 2002 SB. Pl.'s Ex. at 3-6. The 2002 SB "commend[ed] Mr. Wright's work in the Declassification Unit," but nonetheless found that plaintiff was not "on a par with his class," since he "ha[d] not had a recent opportunity to manage public diplomacy programs abroad." Pl.'s Ex. at 5. Plaintiff was subsequently given this opportunity when he was sent to a new post in Kinshasa, Congo, but he was again low-ranked by the 2003 SB, which "called into question his interpersonal skills." Pl.'s Ex. 1 at 9-10. Because plaintiff had received more than one low ranking in five years, he was automatically referred to the 2003 PSB in accordance with State Department policy. Pl.'s Ex. 1 at 7; see also Defs.' Ex. 4 at 9. After reviewing plaintiff's personnel records in their entirety, the 2003 PSB designated plaintiff for selection out. Pl.'s Ex. 1 at 13-16. On April 1, 2005, plaintiff filed a grievance seeking agency review of his 2002 and 2003 SB low rankings as well as his 2003 PSB Designation for Separation. Pl.'s Ex. 1 at 23-33. Plaintiff's separation was held in abeyance while the State Department considered the merits of his grievance, see Pl.'s Ex. 1 at 35, but State Department regulations in effect at the time provided that the separation would become effective once the agency issued its decision and the grievance process was no longer "pending at the initial level below appeal." Defs.' Ex. 5 at 5.*fn2

On July 1, 2005 -- before the State Department had issued a final decision on plaintiff's grievance -- plaintiff received an e-mail explaining that the State Department was "prepared to issue a decision denying [his] grievance" and warning plaintiff that "[o]nce our decision issues you will lose your entitlement to interim relief because the FSGB lacks the authority to grant such relief." Pl.'s Ex. 1 at 35. While affirming plaintiff's "right to appeal our decision to the FSGB," which would then "be obligated to make you whole retroactively . . . if you should prevail before the Board," the State Department proposed instead that plaintiff settle his grievance "according to the following general terms: the Department agrees to extend your appointment until your 20-year date, you agree to retire from the Foreign Service on hitting your 20-year date, you forego all claims against the Department (except the statutory right of a former member to grieve financial claims) to include withdrawing the subject grievance." The e-mail further explained that since time was "very much of the essence here," plaintiff would have until July 6, 2005 to consider the proposal and that absent a response, the decision denying his grievance would issue. Id.

On July 14, 2005, plaintiff entered into a settlement agreement with the State Department. Pl.'s Ex. 1 at 1-2; Defs.' Ex. 1 at 1-2. According to the text of the agreement, the Department of State agreed "(1) [t]o rescind the 2003 Designation for Separation" and "expunge it from its records" and "(2) [t]o extend Mr. Wright's Time-in-Class from December 3, 2005 until December 31, 2005." Id. In exchange, plaintiff agreed (1) to submit "an unconditional and irrevocable application for voluntary retirement to be effective no later than December 31, 2005,"; (2) to forego review "by the Department Selection Boards, including 2004 or 2005 Selection Boards"; (3) to withdraw his 2005 grievance "as being settled in full and all matters raised and documents grieved shall not form the basis of any other grievance, discrimination complaint or other complaint, or adjudicative proceeding, including any processing before the Equal Employment Opportunity Commission or any court"; and (4)"That this Agreement is in full settlement of any and all claims, administrative or judicial, against the Department with the exception of any claim(s) filed under 22 U.S.C. [§] 4132."*fn3 Id. The language of the settlement agreement further states that "nothing herein is intended to preclude Mr. Wright from filing a grievance in the event the Department does not comply with the terms of this Agreement." Id. On March 21, 2006, plaintiff filed the present action in this Court seeking (1) an appeal of the FSGB's July 8, 2003 decision (Count II) and (2) rescission of the July 14, 2005 settlement agreement (Count III).*fn4

STANDARD OF REVIEW

I. Rule 12(b)(1)

Under Rule 12(b)(1), the party seeking to invoke the jurisdiction of a federal court --plaintiff in the present action -- bears the burden of establishing that the court has jurisdiction. See US Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103-04 (1998)); see also Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) ("[A] Rule 12(b)(1) motion imposes on the court an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority."); Pitney Bowes, Inc. v. U.S. Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). However, when a plaintiff proceeds prose, his "complaint is held to a less stringent standard than formal pleadings drafted by lawyers." Chandler v. Roche, 215 F. Supp. 2d 166, 168 (D.D.C. 2002); see also Hughes v. Rowe, 449 U.S. 5, 9 (1980). Thus, a proseplaintiff's failure to proffer a proper basis for invoking subject-matter jurisdiction will not prove fatal if a valid basis for the exercise of jurisdiction exists.

Although a court must accept as true all the factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993), "'plaintiff[s'] factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge, 185 F. Supp. 2d at 13-14 (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1990)). At the stage of litigation when dismissal is sought, a plaintiff's complaint must be construed liberally, and the plaintiff should receive the benefit of all favorable inferences that can be drawn from the alleged facts. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). Additionally, a court may consider material other than the allegations of the complaint in determining whether it has jurisdiction to hear the case, as long as it accepts the factual allegations in the complaint as true. See Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005); St. Francis Xavier Parochial Sch., 117 F.3d at 624-25 n.3; Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir.1992); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987); Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986).

II. Rule 12(b)(6)

All that the Federal Rules of Civil Procedure require of a complaint is that it contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (per curiam). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atl. Corp., 127 S.Ct. at 1964-65; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). Instead, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp., 127 S.Ct. at 1965 (citations omitted). Hence, although "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is impossible, ...


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