812 F.2d 729 (D.C. Cir. 1987), 86-5234, Daniels v. Wick

Docket Nº:86-5234.
Citation:812 F.2d 729
Party Name:Willene DANIELS v. Charles Z. WICK, Director, U.S. Information Agency, et al., Appellants.
Case Date:February 27, 1987
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 729

812 F.2d 729 (D.C. Cir. 1987)

Willene DANIELS

v.

Charles Z. WICK, Director, U.S. Information Agency, et al.,

Appellants.

No. 86-5234.

United States Court of Appeals, District of Columbia Circuit

February 27, 1987

Argued Jan. 23, 1987.

Appeal from the United States District Court for the District of Columbia, (Civil Action No. 83-01437).

Diane M. Sullivan, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence, Asst. U.S. Attys. and Merry A. Lynn, Atty., U.S. Information Agency, Washington, D.C., were on brief, for appellants.

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Beth S. Slavet, Washington, D.C., for appellee.

Before WALD, Chief Judge, STARR, Circuit Judge, and McGOWAN, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge WALD.

WALD, Chief Judge:

The issue in this case is whether the Foreign Service Act of 1980 (Act) permits the foreign service grievance board to order a tenured, career appointment as a remedy for violation of the rights of a nontenured limited term appointee. The grievance board in the case of Willene Daniels decided that tenure was the only adequate remedy for the hostile treatment Daniels had received at the hands of one of her superiors during her limited appointment, which "prevented [her] from carrying out her duties." Def.App. at 46. The Acting Director 1 of the United States Information Agency (USIA or agency) refused to implement the recommendation of the grievance board on the ground that the Act requires that all tenure appointments be made upon recommendation by a tenure board. The District Court disagreed with the Acting Director and ordered him to follow the grievance board's recommendation. We hold that the Act requires all career appointments to be made upon recommendation of a tenure board; accordingly, we reverse the District Court and remand the matter to it with an order to reinstate the Acting Director's veto of the grievance board's recommendation.

I. BACKGROUND

  1. The Foreign Service Act of 1980

    The Foreign Service Act of 1980, 22 U.S.C. Secs. 3901-4173 (1982 & Supp. III 1985), provides that

    (a) [b]efore receiving a career appointment in the Service, an individual shall first serve under a limited appointment as a career candidate for a trial period of service prescribed by the Secretary. During such trial period of service, the Secretary shall decide whether--

    (1) to offer a career appointment to the candidate under section 3943 of this title, or

    (2) to recommend to the President that the candidate be given a career appointment under section 3942 of this title.

    (b) Decisions by the Secretary under subsection (a) of this section shall be based upon the recommendations of boards, established by the Secretary and composed entirely or primarily of career members of the Service, which shall evaluate the fitness and aptitude of career candidates for the work of the Service.

    22 U.S.C. Sec. 3946. The limited appointment that a career candidate must first serve "may not exceed 5 years in duration and ... may not be extended or renewed." 22 U.S.C. Sec. 3949.

    The Act also provides a generous grievance procedure, under the aegis of the grievance board that "shall consist of no fewer than [five] members who shall be independent, distinguished citizens of the United States, well known for their integrity, who are not employees of the Department or members of the Service." 22 U.S.C. Sec. 4135(a). The makeup of the grievance board is in marked contrast to that of tenure boards, which are "composed entirely or primarily of career members of the Service." 22 U.S.C. Sec. 3946(b). If the grievance board finds that a grievance is meritorious, it may "direct the Department to retain in the Service a member whose separation would be in consequence of the

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    matter by which the member is aggrieved." 22 U.S.C. Sec. 4137(b)(3). Additionally,

    [i]f the Board finds that the grievance is meritorious and that remedial action should be taken that relates directly to promotion or assignment of the grievant or to other remedial action not otherwise provided for in this section, or if the Board finds that the evidence before it warrants disciplinary action against any employee of the Department or member of the Service, it shall make an appropriate recommendation to the Secretary.... The Secretary shall implement the recommendation ... except to the extent that ... the Secretary rejects the recommendation in whole or in part on the basis of a determination that implementation of the recommendation would be contrary to law....

    22 U.S.C. Sec. 4137(d).

  2. The Proceedings in this Case

    Plaintiff Willene Daniels began her foreign service work with the USIA as a limited term appointee in February, 1978, and that November started her first overseas assignment, in Brasilia. In September, 1980, she embarked upon her second assignment, this time in Georgetown, Guyana. Unfortunately, problems developed between Daniels and her supervisor in Guyana, and she was transferred back to Washington in April, 1981. Just before this transfer, Daniels had received a negative officer evaluation report (OER) from her Guyana supervisor. Daniels filed a grievance concerning her treatment and evaluation by the supervisor. She requested 1) a finding that the OER was falsely prejudicial, 2) expungement of the OER, 3) extension of her limited appointment by two years, during which she might compete for tenure, 4) promotion to a higher-ranked class, 5) reimbursement for certain out-of-pocket expenses incurred as a result of her shortened tour, 6) reimbursement of expenses connected with her son's education, and 7) disciplinary action against her supervisor in Guyana.

    The agency on January 7, 1982, agreed to expunge the OER and to pay expenses connected with her son's education, but denied all other requested relief. Unsatisfied with this response from the agency, Daniels appealed to the grievance board on January 19, 1982, with regard to each denial, and added requests for an overseas assignment, attorneys' fees and costs, and an immediate career (tenure) appointment.

    On August 13, 1982, the board ordered that Daniels be reimbursed for a portion of her out-of-pocket expenses and for fees and costs, but denied her request for promotion and discipline of her supervisor. Importantly, it did recommend that Daniels be granted immediate tenure. The recommendation for tenure, made pursuant to 22 U.S.C. Sec. 4137(d), which authorizes the grievance board to recommend relief "not otherwise provided for" in that section, was based on the board's conclusion that Daniels would not be able to demonstrate her fitness for a career appointment through appropriate performance in crucial overseas assignments, since her maximum five-year limited appointment, see 22 U.S.C. Sec. 3949, supra, had run its course. 2

    On September 13, 1982, the Acting Director of the agency rejected the tenure recommendation on the ground that it was "contrary to law," specifically, to the requirement of 22 U.S.C. Sec. 3946 that career appointments be made upon recommendation of a tenure board. The Acting Director also noted that he lacked power to extend Daniels' appointment, due to the language of 22 U.S.C. Sec. 3949, which expressly limits the pre-tenure trial period to five years. He did, though, petition the grievance board for her retention in the service for a period long enough to demonstrate her fitness for a career appointment through another overseas assignment. He

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    believed that the board could order such an extension under 22 U.S.C. Sec. 4137(b)(3), which specifically provides for retention in the foreign service of "a member whose separation would be in consequence of the matter by which the member is aggrieved."

    The board ordered the extension of Daniels' limited assignment on January 29, 1983, and she began serving in Bombay, India for a three-year tour commencing February 4, 1983. Daniels meanwhile instituted this action on May 19, 1983, seeking review of the board's denial of her attorneys' fees and of the Acting Director's rejection of the board's tenure recommendation. 3 On September 25, 1985, after Daniels had completed two-and-a-half years of her Bombay assignment, a tenure board recommended against Daniels' receiving a career appointment.

    In the meantime, Daniels' civil action to reinstate the grievance board's 1982 tenure recommendation was still pending, and on December 12, 1985, the District Court reversed the Acting Director and ordered the agency to implement the recommendation. The court held that a grievance board has authority to recommend tenure as a remedy, under the language of Sec. 4137(d), which grants the board authority to take "other remedial action not otherwise provided for in this section." If the Act gives the grievance board authority to recommend tenure, the court reasoned, then Congress "assumed that the Secretary could implement the recommendation." Def.App. at 30. The court also relied on a previous case in which the Secretary of State had accepted the grievance board's recommendation of tenure for a foreign service limited term appointee. Ehrman v. United States, R.O.P. No. 6-81-005-State-4 (July 20, 1981), remanded on other grounds, C.A. No. 82-1984, slip op. (D.D.C. Aug. 31, 1983), vacated and remanded as compromised and settled, C.A. No. 83-2169 (D.C.Cir. Mar. 29, 1984), Pl.Supp.App. at 26, 48. 4 The court additionally referred to a House Report that states that "[t]ogether with the safeguards of the grievance procedure established in chapter 11, [the tenure board procedure] helps to insure that individuals will not be tenured or fired on the whim of a single individual." H.R.Rep. No. 992, 96th Cong., 2d Sess. 32 (1980). Finally, the court concluded that since the Acting Director had assumed that 22 U.S.C. Sec. 4137(b)(3), which authorizes the grievance board to retain in the service an individual who...

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