United States District Court, District of Columbia
P. MEHTA, UNITED STATES DISTRICT JUDGE
Paul Fritch, a career Foreign Service Officer employed by
Defendant U.S. Department of State, filed this lawsuit under
the Administrative Procedure Act (“APA”), seeking
review of the Foreign Service Grievance Board's rulings
regarding two administrative grievances he filed. In his
first grievance, Plaintiff complained that he was deprived of
certain benefits, such as promotion consideration, during a
five-year assignment to serve as Director of the Office of
the Secretary General for the Organization for Security and
Cooperation in Europe (“OSCE”). Defendant deemed
Plaintiff ineligible for those benefits because his
assignment to OSCE was done through a “separation and
transfer” agreement, instead of a “detail.”
The Foreign Service Grievance Board (“FSGB” or
“Board”) affirmed the denial of Plaintiff's
first grievance, and this court upheld that decision. See
generally Fritch v. U.S. Dep't of State, 220
F.Supp.3d 51 (D.D.C. 2016) (granting partial summary judgment
in favor of Defendant on Counts I and II of the Amended
the FSGB denied his first grievance, Plaintiff filed a second
grievance in which he argued that he was entitled to certain
benefits upon his re-employment with Defendant in June 2012,
as a consequence of his separation and transfer to the OSCE.
The Board, however, dismissed Plaintiff's second
grievance based upon the common law doctrine of claim
preclusion. That ruling is the subject of the dispute now
before the court.
consideration of the parties' submissions and the present
record, the court concludes that the Board's decision to
dismiss Plaintiff's second grievance was neither
arbitrary and capricious nor contrary to law. Accordingly,
the court grants Defendant's Motion for Summary Judgment
and denies Plaintiff's Cross-Motion for Summary Judgment.
is a career Foreign Service Officer employed since 1991 by
Defendant U.S. Department of State (“State” or
“the Department”). Def.'s Mot. for Summ. J.,
ECF No. 46 [hereinafter Def.'s Mot.], at 6; Pl.'s
Cross-Mot. for Summ. J. & Opp'n to Def.'s Mot.
for Summ. J., ECF No. 48 [hereinafter Pl.'s Cross-Mot.],
at 3. In 2007, Plaintiff applied, and was ultimately
selected, for the position of Director of the Office of the
Secretary General of the OSCE. Def.'s Mot. at 6;
Pl.'s Cross-Mot. at 4. After Plaintiff accepted the
position, State determined that Plaintiff's assignment to
OSCE was properly effectuated via a “separation and
transfer” agreement, whereby Plaintiff was formally
separated from State and transferred to OSCE but retained the
right to resume his employment at State upon concluding his
tenure with OSCE. Def.'s Mot. at 6-7; Pl.'s
Cross-Mot. at 4. Importantly, Plaintiff was not
“detailed” to work at OSCE, which would have
resulted in Plaintiff remaining a State employee even while
performing work for OSCE. Id.
served as Director of the Office of the Secretary General at
the OSCE from September 2007 through March 2012, and was
re-employed by State in June 2012. Def.'s Mot. at 7;
Pl.'s Cross-Mot. at 4-5. On August 7, 2012, Plaintiff
filed a grievance with State (“First
Grievance”). Def.'s Mot. at 7; Pl.'s Cross-Mot.
at 5. In his First Grievance, Plaintiff primarily argued that
the Department was incorrect in treating his time at OSCE as
a separation and transfer, instead of a detail. See
Def.'s Mot. at 7-8; Pl.'s Cross-Mot. at 5. As a
result of that error, he asserted, Defendant had improperly
denied him consideration for promotion within the Foreign
Service while working at OSCE. See id.; see
also Admin. R. Part 3, ECF No. 35-4, at 22, 24, 28,
30-31. Plaintiff requested, among other things,
that he receive reconstituted selection boards from 2008
through 2012 for purposes of promotion consideration.
Def.'s Mot. at 8; Pl.'s Cross-Mot. at 5-6.
denied Plaintiff's First Grievance, and Plaintiff
appealed to the FSGB. Def.'s Mot. at 8; Pl.'s
Cross-Mot. at 6. In addition to the relief he requested at
the agency level relating to promotion consideration,
Plaintiff also sought reimbursement of housing expenses, as
well as sick and home leave that he would have accrued if his
assignment to OSCE had been effectuated via detail.
Id.; see also Admin. R. Part 4, ECF No. 36,
at 56-57. The Board denied Plaintiff's appeal of his
First Grievance in its entirety. Def.'s Mot. at 8;
Pl.'s Cross-Mot. at 6-7. Plaintiff then filed a request
for reconsideration. Def.'s Mot. at 8; Pl.'s
Cross-Mot. at 7.
the Board could rule on Plaintiff's request for
reconsideration, Plaintiff filed a new grievance with State
on April 21, 2014 (“Second Grievance”).
See Def.'s Mot. at 10; Pl.'s Cross-Mot. at
9. In his Second Grievance, Plaintiff asked the Department
“to address violations of statute, regulation and
published agency policy created by the Board's”
finding that Plaintiff was separated from State during his
time at OSCE. Admin. R., ECF No. 44, at 5; see also
Id. at 11- 15. Specifically, Plaintiff alleged that the
Department: (1) “failed to comply with 5 C.F.R. §
352.314(a) when it did not consider Plaintiff for promotion
during the period of time when he was separated from the
Department and transferred to OSCE”; (2) “acted
inconsistently with Executive Order 11552 and 5 U.S.C. §
3584 when it failed to give ‘due consideration' to
Plaintiff's qualifications gained during his service with
the OSCE when determining the position and grade to which he
was assigned upon his reemployment with the Agency, ”
instead opting “merely to reinstate him at the grade he
had held prior to that service, three grades lower than the
rank of the position he had held at the OSCE”; and (3)
“failed to reimburse Plaintiff for housing expenses
incurred when Plaintiff was separated and transferred from
the Department and employed by the OSCE.” Pl.'s
Cross-Mot. at 9-10; accord Def.'s Mot. at
Among other remedies, Plaintiff sought an upward adjustment
of his grade level and reimbursement of housing expenses.
Def.'s Mot. at 10-11; Pl.'s Cross-Mot. at 10.
the Department did not render a timely decision on
Plaintiff's Second Grievance, Plaintiff
“referred” his grievance directly to the FSGB,
which the Board docketed as an appeal. Pl.'s Cross-Mot.
at 15. But before ruling on the Second Grievance,
the FSGB denied Plaintiff's request for reconsideration
as to his First Grievance, see Admin. R. Part 6, ECF
No. 38, at 268- 77, which led Plaintiff to file the instant
action under the APA, 5 U.S.C. §§ 701 et
seq., see Compl., ECF No. 1; see also
Am. Compl., ECF No. 21, ¶¶ 39-46 (reasserting
Counts I and II, as pled in the original Complaint).
Thereafter, the Department moved to dismiss the Second
Grievance arguing, among other things, that it should be
dismissed under the common law doctrine of claim preclusion.
See Def.'s Mot. at 12; Pl.'s Cross-Mot. at
15. On September 24, 2015, the Board dismissed the Second
Grievance, agreeing with State that the doctrine of claim
preclusion operated to bar Plaintiff's Second Grievance
because it concerned the same operative set of facts as his
First Grievance. See Def.'s Mot. at 12;
Pl.'s Cross-Mot. at 16; see also Admin. R., ECF
No. 44, at 104- 13.
that decision, Plaintiff amended his Complaint to add claims
(Counts III and IV) challenging the Board's dismissal of
his Second Grievance. See generally Am. Compl. In
Count III, Plaintiff asks the court to set aside the
Board's denial of his Second Grievance as
“arbitrary, capricious, and otherwise not in accordance
with law.” Am. Compl. at 17; see 5 U.S.C.
§ 706(2)(A). Plaintiffs offers two arguments to support
this claim. First, Plaintiff alleges that he could not have
filed the Second Grievance seeking the benefits denied to him
following his re-employment “until it became clear that
the Department would deny him those benefits.” Am.
Compl. ¶ 47. Thus, “in essence, ” he filed
the Second Grievance “to enforce the Board's
findings in the original grievance, not to relitigate
them.” Id. Second, Plaintiff claims that while
the FSGB has applied issue preclusion in the past,
FSGB deviated “without explanation” from prior
decisions in the instant case by applying the doctrine of
claim preclusion, which it previously had never
applied to dismiss a grievance. Id. ¶ 48. Count
IV of Plaintiff's Amended Complaint asks the court to set
aside the FSGB's denial for a different reason: the
failure “to consider all relevant evidence in the
record and provide a reasonable explanation for its decision
to dismiss the [second] grievance.” Id. at 18.
Specifically, Plaintiff alleges that by dismissing the Second
Grievance, the Board “refus[ed] to require that
Defendant provide to Plaintiff those benefits specifically
guaranteed by law to those employees in the status
(re-employment following a separation/transfer to an
international organization) it had found applied to
him.” Id. ¶ 49.
court previously granted summary judgment for the Department
on Counts I and II of the Amended Complaint, which challenged
the denial of Plaintiff's First Grievance. See
generally Fritch v. U.S. Dep't of State, 220
F.Supp.3d 51 (D.D.C. 2016). Thereafter, the parties filed
cross-motions for summary judgment challenging the remaining
two counts of the Amended Complaint (Counts III and IV), both
of which relate to the denial of Plaintiff's Second
Grievance. The parties' cross-motions are now ripe for
to Rule 56 of the Federal Rules of Civil Procedure, a court
ordinarily must grant summary judgment “if the movant
shows 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). But where, as here, the case
involves review of a final agency action under the APA, the
Rule 56 standard does not apply. See Picur v. Kerry,
128 F.Supp.3d 302, 308 (D.D.C. 2015). Under the APA, the
court's review “is limited to the administrative
record and the grounds for decision invoked by the
agency.” Loma Linda Univ. Med. Ctr. v.
Sebelius, 684 F.Supp.2d 42, 52 (D.D.C. 2010) (citing
Camp v. Pitts, 411 U.S. 138, 142 (1973)).
“[T]he 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.” Stuttering Found. of Am. v.
Springer, 498 F.Supp.2d 203, 207 (D.D.C. 2007) (internal
quotation marks omitted).
Foreign Service Act provides that decisions of the FSGB are
subject to judicial review under the APA. See 22
U.S.C. § 4140(a); Olson v. Clinton, 602
F.Supp.2d 93, 100 (D.D.C. 2009). Under the APA, a reviewing
court shall set aside agency action if it is
“arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. §
706(2)(A). To determine whether this standard is met, the
court must determine “whether the decision was based on
a consideration of the relevant factors and whether there has
been a clear error of judgment.” Dana-Farber Cancer
Inst. v. Hargan, 878 F.3d 336, 343 (D.C. Cir. 2017)
(quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v.
State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983)).
Agency action is arbitrary and capricious “if the
agency has relied on factors which Congress has not intended
it to consider, entirely failed to consider an important
aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the agency,
or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.”
Id. (quoting State Farm, 463 U.S. at 43).
essence, agency action must be “the product of reasoned
decisionmaking” in order to survive arbitrary and
capricious review. Fox v. Clinton, 684 F.3d 67,
74-75 (D.C. Cir. 2012); accord Michigan v. EPA, 135
S.Ct. 2699, 2706 (2015). Thus, the court “will
ordinarily uphold an agency's decision so long as the
agency ‘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.'” Animal Legal Def. Fund, Inc. v.
Perdue, 872 F.3d 602, 611 (D.C. Cir. 2017) (quoting
State Farm, 463 U.S. at 43). A court, however,
should not “supply a reasoned basis for the
agency's action that the agency itself has not
given.” State Farm, 463 U.S. at 43 (internal
quotation mark omitted).
case, the parties have moved for summary judgment on Counts
III and IV of the Amended Complaint. With respect to Count
III, the Department contends that because Plaintiff could
have pursued in his First Grievance the benefits to which he
now claims entitlement, but failed to do so, the Board
properly determined that he was precluded from pursuing those
benefits in his Second Grievance. Def.'s Mot. at 14-15.
Moreover, the Department asserts that this court may not
consider Plaintiff's argument regarding the Board's
failure to apply claim preclusion in the past, as Plaintiff
failed to raise that argument in the administrative
proceedings below. Id. at 15-16. And in any event,
Defendant submits, Plaintiff has failed to cite any Board
precedent conflicting with its decision to dismiss the
grievance in the instant case or otherwise demonstrating that
its decision to do so was arbitrary, capricious, or ...