686 F.2d 1017 (D.C. Cir. 1982), 81-2143, Reiner v. United States

Docket Nº:81-2143.
Citation:686 F.2d 1017
Party Name:Margot Ellen REINER, Appellant, v. UNITED STATES of America, et al.
Case Date:August 27, 1982
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1017

686 F.2d 1017 (D.C. Cir. 1982)

Margot Ellen REINER, Appellant,

v.

UNITED STATES of America, et al.

No. 81-2143.

United States Court of Appeals, District of Columbia Circuit

August 27, 1982

Argued June 3, 1982.

As Amended .

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 81-00794).

Philip G. Sunderland, Washington, D. C., with whom Bruce J. Terris and James M. Hecker, Washington, D. C., were on the brief for appellant.

Diane M. Sullivan, Asst. U. S. Atty., Washington, D. C., with whom Stanley S. Harris, U. S. Atty., Kenneth M. Raisler and Michael J. Ryan, Asst. U. S. Attys., Washington,

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D. C., were on the brief for appellees.

Before TAMM and WILKEY, Circuit Judges, and ROBB, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge ROBB.

Concurring opinion filed by Circuit Judge WILKEY.

ROBB, Senior Circuit Judge:

In the District Court appellant Margot Ellen Reiner, an employee of the Department of State, challenged a decision of the Foreign Service Grievance Board. The decision recommended a remedy for administrative errors committed in 1972-1973 which on five successive occasions caused the Department's failure to consider Reiner for promotion. Reiner alleged the Board acted arbitrarily by basing relief on the promotion histories of Foreign Service Officers who entered the Service in 1971, rather than those who entered in 1966, when Reiner became a Foreign Service Staff Officer. The District Court held that the Board did not err by considering Reiner a member of the class of 1971, and ordered summary judgment in favor of the United States and the Secretary of State. We affirm in part and reverse in part.

A somewhat detailed discussion of the Foreign Service personnel system is necessary to an understanding of this dispute. The Foreign Service consists of the federal employees, primarily in the State Department, who formulate and execute the foreign policies of the United States. Under the Foreign Service Act of 1946, 1 Foreign Service personnel are classified into distinct categories as follows:

The personnel of the Service shall consist of the following categories of officers and employees:

(1) Chiefs of mission, who shall be appointed or assigned in accordance with the provisions of section 901 of this title;

(2) Foreign Service officers, who shall be appointed in accordance with section 906 of this title, including those serving as chiefs of mission;

(3) Foreign Service Reserve officers, who shall be assigned to the Service on a temporary basis from Government agencies or appointed on a temporary basis from outside the Government in accordance with the provisions of section 922 of this title, in order to make available to the Service such specialized skills as may from time to time be required;

(4) Foreign Service staff officers and employees, who shall be appointed in accordance with the provisions of section 936 of this title and who shall include all personnel who are citizens of the United States, not comprehended under paragraphs (1), (2), (3), and (6) of this section, and who shall occupy positions with technical, administrative, fiscal, clerical, or custodial responsibilities;

(5) Alien clerks and employees, who shall be appointed in accordance with the provisions of section 946 of this title; and

(6) Consular agents, who shall be appointed in accordance with the provisions of section 951 of this title.

22 U.S.C. § 861 (1976) (repealed 1980). Each category is governed by a separate pay scale, see 22 U.S.C. §§ 866-877, and by differing statutory requirements with respect to appointment, assignments, transfer, tenure, and citizenship. See 22 U.S.C. §§ 906-968.

Two categories are particularly important here: Foreign Service Officers, generally

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referred to as "FSOs"; and Foreign Service Staff Officers, or "FSSOs". Foreign Service Officers play the central role in day-to-day implementation of foreign policy. As described by the State Department, FSOs

carry out the foreign policies of the United States under the direction of the Secretary of State, participate in the formulation of those policies, represent the United States in relations with other governments and with international organizations, keep the U. S. Government informed of developments abroad, and protect American interests in foreign countries.

Introduction to 1971 Foreign Service Officer Examination 6. (J.A. 33) Foreign Service Officers "fill most of the more responsible positions in the (State) Department, aside from those requiring a high degree of technical or professional specialization in fields such as medicine, science, electronics, law, etc." Introduction to 1972 Foreign Service Officer Examination 5. (J.A. 35) The category of Foreign Service Staff Officer or "FSSO" no longer exists, having been abolished by the Foreign Service Act of 1980. 2 At the time of the events in this case, Department regulations described the category as

A corps of Staff Officers complementary to Foreign Service Officers and Foreign Service Reserve Officers, to give depth, stability, and continuity to the Foreign Service as a whole and to provide technical skills and experience not usually found in officers who are available to the Service in general foreign affairs work.

Foreign Affairs Manual Circular No. 255 at 2 (November 25, 1964). (J.A. 37) In 1965 the Foreign Service permitted FSSOs to perform duties previously performed only by FSOs, and established a new Junior FSSO Service designed to attract "highly motivated and well-qualified young men and women from colleges and universities ...." Id. at 5. (J.A. 40) Consequently, in the time period relevant here, FSSOs often had duties entailing substantial responsibility.

Promotion in the Foreign Service operates, for the most part, according to a unique system of competitive ranking based on relative performance among employees in the same class. Under the 1946 Act the procedure for promotion of FSOs was as follows. Periodically, "selection boards" appointed by the Secretary of State convened to review the official performance files of officers in the same category and class. 22 U.S.C. § 993(a). These files were assembled by the Director General of the Foreign Service, and contained reports from supervising officers, records of commendations or disciplinary actions, and all other information relating to the ability and conduct of the officers under evaluation. Id. § 986. The selection board ranked the officers according to their performance relative to one another, and then submitted the list to the Secretary of State. Id. § 993(a). Promotions were then made by taking officers from the top of the list until the staffing requirements for the higher class were met. For example, if the Department decided to promote fifteen FSOs from Class 7 (FSO-7) to Class 6 (FSO-6) in any year (lower class numbers representing higher rank and salary), the officers receiving promotions would be the fifteen individuals ranked highest by the selection board which reviewed FSO-7s. Those FSOs who did not advance to higher classes within prescribed periods of time were "selected out," i.e., retired from the Foreign Service.

The promotion procedures for Foreign Service Staff Officers were essentially the same as for Foreign Service Officers. The only differences were that the use of selection boards for FSSOs was established by regulation, not by statute; 3 and unlike

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FSOs, FSSOs were not subject to "selection out." (Appellee's Br. at 3 n.3)

Margot Ellen Reiner entered the Foreign Service in 1966 as a Foreign Service Staff Officer, Class 7 (FSS-7). She received a promotion to FSS-6 in 1967, and remained in the program for approximately five years, serving in Buenos Aires, Argentina; as a "Passport and Citizenship Officer" in Lima, Peru; and as a "personnel officer" in Saigon, Vietnam. In 1970 appellant sought to become a Foreign Service Officer. She took the examinations administered to all persons seeking appointment as an FSO, see 22 U.S.C. § 911, passing the written examination in December 1970 and the oral examination on October 21, 1971. She was then classified as a Foreign Service Officer, Class 7 (FSO-7).

For more than two years following her appointment Reiner did not receive a promotion. Beginning in the summer of 1972 and through 1973, Reiner sent letters to State Department officials expressing her concern that possibly her performance file had not been submitted to the proper selection boards. She received no direct response to her inquiries. The Department did submit her file to the January 1974 selection board, which recommended her promotion from FSO-7 to FSO-6, effective in June 1974. Reiner continued to maintain, however, that her career had been seriously prejudiced by administrative errors in 1972-1973.

In January 1976 Reiner filed a formal grievance pursuant to 22 U.S.C. §§ 1037 et seq. In May 1976 the Department acknowledged for the first time that in 1973 Reiner's performance file had not been submitted to two selection boards that should have considered her for promotion. The Department offered to extend by one year the time ("time-in-class") within which Reiner would have to reach Class 5 or be selected out, but did not offer any retroactive promotions. At Reiner's urging the Department investigated further and discovered that her performance file had not been submitted to three 1972 selection boards in addition to the two 1973 selection boards already acknowledged. In June 1976 the Department offered to make Reiner's promotion to FSO-6 (which became effective in June 1974) retroactive to May 1973, but she refused the offer.

Reiner...

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