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Fritch v. U.S. Department of State

United States District Court, District of Columbia

March 14, 2018

PAUL FRITCH, Plaintiff,




         Plaintiff 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 Complaint).

         After 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.

         Upon 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.


         Plaintiff 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;[1] 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.

         Plaintiff 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”).[2] 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.[3] 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.

         State 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.

         Before 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 10.[4] 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.

         Because 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.[5] 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.

         Following 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.

         This 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 consideration.


         Pursuant 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).

         The 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).

         In 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).


         In this 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 ...

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