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Fritch v. U.S. Department of State

United States District Court, District of Columbia

October 27, 2016

Paul L. Fritch, Plaintiff,
U.S. Department of State, Defendant.


          Amit P. Mehta United States District Judge.


         Plaintiff Paul L. Fritch is a career Foreign Service Officer employed since 1991 with Defendant U.S. Department of State ("State"). In the summer of 2007, Plaintiff was "seconded" from State to serve as the Director of the Office of the Secretary General for the Organization for Security and Cooperation in Europe ("OSCE"). To effectuate the transition to his new position, Plaintiff was "separated and transferred" from State to the OSCE. Plaintiff remained at the OSCE until the spring of 2012, whereupon he returned to State.

         Plaintiffs secondment, however, resulted in the loss of critical benefits that he otherwise would have enjoyed had he continued working at State. Most significantly, his years at the OSCE did not count towards promotion eligibility within State. He also did not accrue certain types of leave time and was not permitted to make contributions to his Thrift Savings Plan. Plaintiff also paid more than $140, 000 for his own housing while living in Europe.

         After Plaintiff returned to State, he filed a grievance challenging these adverse impacts. State rejected his grievance, finding that Plaintiff s classification as "separated and transferred" from the agency rendered him ineligible for those benefits. Plaintiff appealed that decision to the Foreign Service Grievance Board ("FSGB" or "the Board"). The FSGB affirmed the agency's denial of his grievance and subsequently rejected Plaintiffs request for reconsideration, in part because it was based on arguments that Plaintiff had not raised during his grievance or his appeal.

         Plaintiff brought this suit under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq., challenging the FSGB's rulings. His overarching contention is that the denial of benefits was contrary to State's own policies and regulations and thus was an arbitrary and capricious agency action. State defends the FSGB's ruling as rationally based on the record evidence and further asserts that this court lacks jurisdiction to review the Board's refusal to consider arguments raised for the first time on reconsideration. Plaintiff, for his part, counters that the Board in fact has considered arguments raised by other grievants for the first time on reconsideration and that, as a result, its refusal to consider such arguments in his case was arbitrary and capricious.

         This matter is before the court on the parties' cross-motions for partial summary judgment.[1]The court concludes that it lacks jurisdiction to review those legal arguments that Plaintiff raised with the FSGB for the first time in his request for reconsideration. Additionally, the court finds that the Board did not arbitrarily and capriciously apply its own discretionary procedural rule- namely, that it will not consider legal arguments raised for the first time on requests for reconsideration-to Plaintiffs request. Finally, the court concludes that the Board's decision denying Plaintiffs appeal on the merits was not arbitrary and capricious. Accordingly, the court grants Defendant's Motion for Partial Summary Judgment and denies Plaintiffs Cross-Motion for Partial Summary Judgment.


         A. Factual Background

         1. Plaintiff's Transfer to the Organization for Security and Cooperation in Europe

         Plaintiff is a career Foreign Service Officer employed since 1991 by Defendant U.S. Department of State ("State"). Def.'s Mem. in Supp. of Mot. for Partial Summ. J., ECF No. 24 [hereinafter Def.'s Mot.], at 2; Pl.'s Opp'n to Def.'s Mot. for Partial Summ. J., ECF No. 31 [hereinafter Pl.'s Opp'n], at 5. In April 2007, State's Bureau of Human Resources circulated a Vacancy Announcement soliciting applications from agency employees interested in serving as Director of the Office of the Secretary General for the Organization for Security and Cooperation in Europe ("OSCE"). Def.'s Mot. at 2; Pl.'s Opp'n at 7. Plaintiff submitted an application and, on May 7, 2007, the OSCE selected him for the position. Def.'s Mot. at 2-3; PL's Opp'n at 7. State approved Plaintiffs transfer and agreed to "second" him to the OSCE for two years with the possibility of a one-year extension. Def.'s Mot. at 3; Pl.'s Opp'n at 7.

         Plaintiff and State's Human Resources staff worked together to effectuate his transfer to the OSCE. Def.'s Mot. at 3. On July 21, 2007, State officially transferred Plaintiff to the OSCE pursuant to a "separation and transfer" agreement whereby Plaintiff was formally separated from State while working at the OSCE but retained the right to resume his employment at the conclusion of his secondment. Def'sMot. at3; Pl.'s Opp'n at 7-8. Importantly, Plaintiff was not "detailed" to work at OSCE. Unlike a separated-and-transferred employee, a detailed State employee remains employed by State while working at another organization and continues to accrue benefits, including promotion eligibility, as if he was working at State. Def's Mot. at 3. On the other hand, employees that are separated and transferred from State, like Plaintiff, are no longer employed by State, but retain unilateral reemployment rights upon the conclusion of their tenure with the secondment organization. Id.

         Shortly after he started work at the OSCE, Plaintiff repeatedly attempted to confirm that, despite being separated and transferred, he remained eligible for promotion consideration. Defi's Mot. at 5. Plaintiff asserted that he remained eligible for promotion because he received an "Information Sheet" with his separation and transfer agreement, which stated that "[State] employees are entitled to be considered, while employed by the OSCE, [for promotions] in accordance with the governing precepts." Defi's Mot. at 3 (emphasis added). State ultimately informed Plaintiff, however, that its internal policies-known as the Governing Precepts- disqualified him from promotion consideration while he was working at the OSCE. Id.; Pl.'s Opp'n at 8. Despite being fully aware of State's position, Plaintiff twice extended his secondment at the OSCE before resuming work at State in June 2012. Defi's Mot. at 5.

         2. Plaintiff's Agency-Level Grievance

         Upon returning to State, Plaintiff, proceeding pro se, filed an agency-level grievance challenging the loss of benefits during his time at the OSCE.[2] Id. at 6; Pl.'s Opp'n. at 16; Admin. Rec. Part 3, ECF No. 35-4 [hereinafter A.R. Pt. 3], at 1-19. Specifically, Plaintiff asserted before the agency that he had remained eligible for benefits, including promotion eligibility, while he worked at the OSCE because:

• "[T]he Separation Agreement was a binding contract that imposed obligations on both parties" and that the Information Sheet, as incorporated into the Separation Agreement, contained language "guarantee[ing] . . . promotion eligibility, " which superseded the Governing Precepts;
• State had "broad discretion to treat any given assignment as a 'detail' or a 'transfer'" and that the "final decision to opt for a separation/transfer was taken with the sole purpose of processing the assignment as quickly and efficiently as possible";
• State had not, as it contended, made a "conscious policy choice" to "exclud[e] . . . [transferred] employees from consideration [for] promotion" in order to discourage State employees from "serving in lengthy assignments with international organizations." To the contrary, State actually "actively encourage[d] qualified employees to serve in key positions within [international organizations], and lobbie[d] on behalf [of its employees for those positions]";
• State could have "resolved" the "contradiction between [the] Separation Agreement and the [Governing Precepts]" in order to "mitigate" Plaintiffs damages; and
• Plaintiff could "reasonably have expected to be competitive for a promotion" during his time at OSCE.

See A.R. Pt. 3 at 25, 28-31.

         State denied Plaintiffs grievance on November 20, 2016. Def'sMot at 6. With respect to Plaintiffs main argument, the agency concluded that the Information Sheet did not create any contractual obligations between State and Plaintiff, much less an obligation negating the Governing Precepts' clear exclusion of Plaintiff from promotion consideration. A.R. Pt. 3 at 197-201. The agency also rejected Plaintiffs other arguments. See id.

         3. Plaintiff's Appeal to the Foreign Services Grievance Board

         On January 10, 2013, Plaintiff, continuing to proceed pro se, appealed State's decision to the Foreign Services Grievance Board ("FSGB" or "the Board"). Def'sMot. at 7; Pl.'s Opp'n at 17; A.R. Pt. 3 at 1-32. In his appeal, Plaintiff reiterated and expanded upon the arguments outlined above. He also, for the first time, argued that:

• The paperwork effectuating his transfer-a form SF-50-actually reflected that he had been assigned not to the OSCE, but to the Multinational Force & Observers ("MFO"), an independent international organization with peacekeeping responsibilities in the Sinai Peninsula. According to Plaintiff, MFO members "do remain promotion-eligible while in separation/transfer (secondment) status, " and that, as a result, the Department had purposefully "transferred" him to the MFO, even though he technically worked at the OSCE, in order to ensure that he was assigned to a "status explicitly eligible for promotion consideration under [the Governing Precepts]"; and
• The "Grievance Staff, in its analysis of the case, disregarded duly submitted evidence that did not conform to its own 'theory of the case' . . . flatly misrepresented objective, easily verifiable facts critical to a fair, unbiased resolution of the case . . . sought any interpretation . . . that might justify the denial of the ...

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