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Baltimore v. Clinton

United States District Court, District of Columbia

October 25, 2012

Richard BALTIMORE, III, Plaintiff,
Hillary CLINTON, Secretary, United States Department of State, Defendant.

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[Copyrighted Material Omitted]

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Michael J. Kator, Cathy Ann Harris, Juliette M. Niehuss, Kator, Parks & Weiser, PLLC, Washington, DC, for Plaintiff.

Addy Schmitt, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.


JOHN D. BATES, District Judge.

Plaintiff Richard Baltimore, a former ambassador, brought this action against the State Department challenging a Foreign Service Grievance Board (FSGB or " Board" ) decision that upheld three charges of misconduct and the assessment of a 45-day penalty. The parties have filed motions and cross-motions for summary judgment. For the reasons explained herein, the Court will deny Ambassador Baltimore's motion for summary judgment and will grant the Department's cross-motion.

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The events at issue in this case concern a rug, a car, and a health club membership, hardly the usual subjects of extended federal court litigation. Plaintiff Baltimore is a retired Foreign Service Officer who has had a long and highly distinguished career. As relevant here, he served as a Principal Officer in Jeddah, Saudi Arabia from 1999 to 2002 and as the U.S. Ambassador to Oman from 2002 to 2006. See Baltimore, FSGB Case No. 2006-057, at 5 (Sept. 9, 2008) (" Bd. Decision" ). During the Ambassador's time in Oman, the Department's Office of Inspector General (OIG) received a complaint that the Ambassador had accepted a free membership in an employee association and that his wife was misusing a government-owned vehicle. A few months later, OIG began an investigation and, in October 2004, submitted a report documenting misconduct. On March 23, 2006, the Department sent Ambassador Baltimore a letter proposing to suspend him for 45 days without pay. Id. at 7. The letter listed three charges: (1) misuse of official position, (2) failure to report the gift of a carpet in 2002 on the 2002 financial disclosure form, 2002 SF-278, and (3) willful misuse of a government-owned vehicle. See id. at 7-8. The first charge contained three specifications: (1) soliciting and receiving a free membership to the Muscat Employee Association, (2) receiving a complimentary beach and country club membership to the Al Bustan Palace Hotel and a complimentary Diplomatic Club membership to the Grand Hyatt Hotel, and (3) accepting a gift of a carpet from a prohibited source or given because of the employee's official position. See id.

After Ambassador Baltimore responded, the deciding official issued a decision letter sustaining the proposed misconduct and the 45-day suspension. See Administrative Record (" A.R." ) at 1258-74 [Docket Entry 40] (Nov. 22, 2011). The Ambassador soon retired, never having served the 45-day suspension. See id. at 1011 (Stipulation 2).[1] Ambassador Baltimore filed a grievance with the Bureau of Human Resources, and when it was denied he appealed that decision to the FSGB. The parties engaged in discovery and held an evidentiary hearing before the Board. See Bd. Decision 9-10.

The Board rejected, as not proven, two specifications: (1) soliciting and receiving a free membership to the Muscat Employee Association, and (2) receiving a complimentary Diplomatic Club membership to the Grand Hyatt Hotel. It found, by a preponderance of evidence, that the remaining claims were proven, and sustained all three charges. It also sustained the 45-day suspension, but directed the Department to reissue the decision letter, removing reference to the two rejected specifications. See id. at 36. Ambassador Baltimore requested reconsideration, repeating two arguments that he raised in his initial briefing before the Board and adding that the penalty was excessive. See Baltimore, FSGB Case No. 2006-057, at 3-4 (Jan. 13, 2009). The Board denied the motion in an 11-page order, and Ambassador Baltimore filed this suit.

In this Court, the Ambassador moved to take discovery regarding a Federal Register notice, which, he argued, established that the gift of the carpet (relevant to

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Charge 1, Specification 3 and Charge 2) was accepted by the Department rather than by him individually. See Pl.'s Mot. for Disc. [Docket Entry 14] (Oct. 9, 2009). Instead, the Court remanded the relevant charges to the FSGB for additional consideration. See Order Remanding Case [Docket Entry 20] at 3 (Nov. 16, 2009). The Board then found that the Federal Register notice has " no relevance that would cause the Board to grant [Ambassador Baltimore] further discovery, reopen the proceedings or mitigate the penalty promulgated by the Department and sustained by the Board." Baltimore, FSGB Case No. 2006-057R [Docket Entry 23-1] at 3 (Aug. 3, 2010) (" Remand Decision" ). In light of that decision, the Court denied Ambassador Baltimore's renewed motion for discovery. Order Denying Discovery [Docket Entry 29] at 8 (May 6, 2011). The parties then filed motions and cross-motions for summary judgment, which are now before the Court.


Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate when the pleadings and the evidence demonstrate that " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In a case involving review of a final agency action under the Administrative Procedure Act, 5 U.S.C. § 706, however, the standard set forth in Rule 56(a) does not apply because of the limited role of a court in reviewing the administrative record. See Loma Linda Univ. Med. Ctr. v. Sebelius, 684 F.Supp.2d 42, 52 (D.D.C.2010) (citing Sierra Club v. Mainella, 459 F.Supp.2d 76, 89 (D.D.C.2006)), aff'd, 408 Fed.Appx. 383 (D.C.Cir.2010); see also Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C.Cir.2001) (" [W]hen a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal. The entire case on review is a question of law." (footnote and internal quotation marks omitted)). Under the APA, it is the role of the agency to resolve factual issues to arrive at a decision that is supported by the administrative record, whereas " the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." See Occidental Eng'g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir.1985); see also James Madison Ltd., by Hecht v. Ludwig, 82 F.3d 1085, 1096 (D.C.Cir.1996) (" Like appellate courts, district courts do not duplicate agency fact-finding efforts. Instead, they address a predominantly legal issue: Did the agency articulate a rational connection between the facts found and the choice made?" (internal quotation marks omitted)). Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review. See Richards v. INS, 554 F.2d 1173, 1177 & n.28 (D.C.Cir.1977); see also Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) (" The task of the reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents to the reviewing court." ).

Ambassador Baltimore challenges the FSGB's decision. The Court must " hold unlawful and set aside agency action, findings, and conclusions" that are " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2); see also 22 U.S.C. § 4140(a) ( section 706 applies " without limitation or exception" to challenges of FSGB final actions). The " scope of review under the

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‘ arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The Court must be satisfied that the agency has " ‘ examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.’ " Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6 (D.C.Cir.2006). The agency's decisions are entitled to a " presumption of regularity," Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), and although " inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one," id. at 416, 91 S.Ct. 814. The Court's review is confined to the administrative record, subject to limited exceptions not at issue here. See Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (" [T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." ); see also James Madison Ltd., 82 F.3d at 1096 (the district court's inquiry is predominantly legal, though the court may " need to resolve factual issues regarding the process the agency used in reaching its decision," which, in rare instances, could " require[ ] district courts to engage in independent fact-finding" ).


Ambassador Baltimore contends that the FSGB's decision is " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A); see also 22 U.S.C. § 4140(a) (applying APA standard to FSGB final actions). He raises a slew of challenges. None have merit. The Board's decision is thorough, well-reasoned, and consistent with its precedent as well as with general legal principles. Ambassador Baltimore has failed to point to any specific error that would allow this Court to set aside that decision.

I. Charge 1: Misuse of Official Position

The Board sustained the first charge against Ambassador Baltimore, that he violated regulations barring an employee from " directly or indirectly [ ] solicit[ing] or accept[ing] a gift" either " [g]iven because of the employee's official position" or received " [f]rom a prohibited source." 5 C.F.R. § 2635.202(a)(2). The Board found two specifications proven under this charge. Ambassador Baltimore challenges each finding.

a. Al Bustan Palace Hotel Membership

Ambassador Baltimore raises a number of challenges to Charge 1, Specification 2a. That specification concludes that he received a complimentary beach and country club membership to the luxurious Al Bustan Palace Hotel in violation of the gift regulation and the Department's policies. See 2 U.S. Department of State Foreign Affairs Manual § 962 (" Manual" ) (explaining Department policies as to " Solicitation and Acceptance of Gifts" ). The Foreign Affairs Manual specifically addresses gifts of club membership, stating that " the Department may approve the acceptance of a gift of a free club membership to a U.S. official abroad" in " some unusual cases" where such access would substantially aid the official in the conduct of foreign ...

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