843 F.2d 540 (D.C. Cir. 1988), 86-5458, Costello v. Agency for Intern. Development

Docket Nº:86-5458.
Citation:843 F.2d 540
Case Date:April 05, 1988
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 540

843 F.2d 540 (D.C. Cir. 1988)

Walter F. COSTELLO, Appellant,



No. 86-5458.

United States Court of Appeals, District of Columbia Circuit

April 5, 1988

Argued Feb. 29, 1988.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 85-03890).

Lawrence Speiser, with whom John P. Racin, Washington, D.C., was on the brief, for appellant.

Diane M. Sullivan, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth [*] and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before WALD, Chief Judge, EDWARDS and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

Page 541

HARRY T. EDWARDS, Circuit Judge:

The question presented by this case is whether the Foreign Service Grievance Board ("Board") has the authority to award attorney fees to a Foreign Service Officer ("FSO") who prevails in an action brought to separate him for cause from the Service pursuant to section 610(a) of the Foreign Service Act of 1980 ("Act"), 22 U.S.C. Sec. 4010(a) (1982). The Act makes provision for such awards where the grievance of a FSO is found to be meritorious; the Board held in this case, however, that it had no authority to award fees because the hearing prescribed in section 610(a)(2) as a prerequisite to separation for cause was not a "grievance" procedure. The District Court agreed with this interpretation of the Act and affirmed.

We find it impossible to reconcile the Board's interpretation of the statutory scheme with any rational understanding of congressional intent. We therefore reverse the decision of the District Court and remand for further proceedings.


Appellant Walter F. Costello was, in 1983, a FSO employed by appellee Agency for International Development ("AID"). When AID proposed to "separate" him from the Service because of alleged misconduct during an earlier assignment in Somalia, Costello obtained a hearing before the Board, as provided by section 610(a)(2). In June 1984, the Board dismissed the case against Costello for want of sufficient evidence. Several months later Costello filed a motion with the Board requesting an award of attorney fees. In a decision dated May 24, 1985, the Board rejected the motion, on the ground that it had no authority under the Act to award fees in a separation-for-cause action.

The Board's authority to award attorney fees is found in section 1107(b)(5) of the Act, 22 U.S.C. Sec. 4137(b)(5). Section 1107(b) provides that when the Board "finds that the grievance is meritorious," it shall have authority to direct the Department of State or other agency employing the FSO to take any of several remedial measures, including:

(5) to pay reasonable attorney fees to the grievant to the same extent and in the same manner as such fees may be required by the Merit Systems Protection Board under section 7701(g) of title 5.... 1

As section 1107(b) applies only in the case of a "grievance," it is essential to determine whether a separation-for-cause action pursuant to section 610(a) is a grievance within the compass of section 1107(b). "Grievance" is defined in section 1101(a)(1), 22 U.S.C. Sec. 4131(a)(1), as

any act, omission, or condition subject to the control of the Secretary [of State or other agency head] which is alleged to deprive a member of the Service who is a citizen of the United States of a right or benefit authorized by law or regulation or which is otherwise a source of concern or dissatisfaction to the member, including--

(A) separation of the member allegedly contrary to laws or regulations, or predicated upon alleged inaccuracy, omission, error, or falsely prejudicial character of information in any part of the official personnel record of the member....

Section 1101(b) makes several exceptions to this definition, including "any complaint or appeal where a specific statutory hearing procedure exists...." Section 1101(b)(4), 22 U.S.C. Sec. 4131(b)(4). 2

Page 542

The Board construed section 610(a)(2) 3 to provide a "specific statutory hearing procedure" of the sort contemplated by section 1101(b)(4). The Board recognized that "the definition of 'grievance' in Section 1101 of the Act is broad enough to encompass a challenge to a separation for cause," and that under the remedial provisions of section 1107 the Board had the authority to remedy an attempted separation by ordering the Government to retain the grievant in the Service. 4 "If these were the only provisions of the Act bearing on the subject," the Board stated, "we would have little doubt that a separation for cause could be challenged through the grievance procedure established by Chapter 11 of the Act." Costello v. AID, No. S-83-002-AID-2, slip op. at 4-5 (May 24, 1985), reprinted in Appellant's Appendix ("App.") 9, 13-14. The Board held, however, that section 610(a)(2) created a distinct separation-for-cause procedure, separate from "grievance" proceedings: "The import of this section, as the Board has understood it since the Act was passed, is to make separation for cause cases a discrete category of proceedings (subject, of course, to the same procedures used in grievance cases)." Id. at 5, App. 14. Any other interpretation, it contended, would make section 610(a)(2) "largely superfluous." Id. Therefore, having concluded that "a separation proceeding is not a grievance," the Board found that it had no authority to award attorney fees under section 1107(b)(5). Id. at 6, App. 15.

The District Court agreed. It relied on both section 1101(b)(4) and the last sentence of section 610(a)(2) to hold that

separation for cause hearings pursuant to subchapter VI and the grievance procedures pursuant to subchapter XI are distinct and mutually exclusive avenues of redress.... [T]he Act expressly establishes a special hearing right for separation for cause cases based on misconduct, and the existence of that statutory right takes this type of dispute out of the ordinary grievance procedures established in subchapter XI.

Costello v. Foreign Serv. Grievance Bd., No. 85-3890, slip op. at 5 (D.D.C. May 7, 1986), reprinted in App. 3, 7.


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