871 F.2d 1140 (D.C. Cir. 1989), 87-5419, Harter v. U.S.

Docket Nº:87-5419.
Citation:871 F.2d 1140
Party Name:John J. HARTER, Appellant, v. UNITED STATES of America, et al.
Case Date:April 11, 1989
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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871 F.2d 1140 (D.C. Cir. 1989)

John J. HARTER, Appellant,


UNITED STATES of America, et al.

No. 87-5419.

United States Court of Appeals, District of Columbia Circuit.

April 11, 1989

Rehearing and Rehearing En Banc Denied July 12, 1989.

Argued Feb. 28, 1989.

Alan Raywid, Washington, D.C., for appellant.

John J. Harter, pro se.

Susan Z. Holik and Joseph B. Kennedy, Washington, D.C., were on the brief, for amicus curiae American Foreign Service Association, Government Accountability Project, and Committee Against Government Waste, urging reversal.

Diane M. Sullivan, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellees.

Before: MIKVA, SILBERMAN and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

Appellant John J. Harter was involuntarily retired from the Foreign Service in 1983 because he failed to gain promotion to the Senior Foreign Service within the timeframe set by regulation under the Foreign Service Act of 1980, as amended, 22 U.S.C. Secs. 3901-4226 (1982 & Supp. IV 1986). Harter filed a timely grievance with the Foreign Service Grievance Board

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("FSGB"), asserting, inter alia, that unfairly critical statements in his personnel file may have contributed to his "pass-over." Following the Board's initial denial of his grievance, Harter obtained a district court order directing the Board to require the State Department to establish that Harter would not have been promoted even absent the prejudicial remarks. On remand to the Board, the State Department sought to discharge its burden through the use of a Reconstituted Selection Board ("RSB") that compared Harter's file to those of the lowest qualified candidates who were promoted in Harter's 1983 class. The Board accepted the State Department's proffer of the RSB evidence and denied Harter's grievance. The district court affirmed and Harter now appeals. We affirm.


Appellant filed numerous grievances during his twenty-year Foreign Service career, all of them substantially successful. Of particular relevance to the instant proceeding was a grievance Harter filed in 1980, when he faced mandatory retirement prospects comparable to those he confronted in 1983. See 22 U.S.C. Sec. 4007 (1982) (describing "up or out" system of promotion within Foreign Service). The 1980 grievance was settled by Harter in exchange for a three-year extension of time-in-class during which the Department would present Mr. Harter's performance file to all selection boards convened for the purpose of making promotion decisions for officers of his grade. Pursuant to the settlement, Harter was evaluated and ranked each year from 1981 to 1983, but did not fare well. In 1981 he was ranked low in comparison with other economic officers and toward the middle class-wide. In both 1982 and 1983, based on his Employee Evaluation Report ("EER"), Harter was ranked in the middle ranges with respect to both categories of officers.

In 1983, Harter thus failed to make the promotion cut and, once again, was faced with imminent involuntary retirement. Claiming that certain comments in his 1983 EER were unfairly prejudicial, Harter grieved to the FSGB. After a hearing, the Board determined that any claimed deficiencies in the 1983 EER were not a substantial factor in Harter's non-promotion. Harter immediately sought review of the Board's determination in district court pursuant to 22 U.S.C. Sec. 4140.

The district court, in a memorandum opinion, found some of the challenged comments in the 1983 EER to be "troublesome" and agreed with Harter that their presence "could well have been a substantial factor in the Selection Board's review." Harter v. United States, No. 85-1086, slip op. at 6-7 (D.D.C. Jan. 31, 1986). The court therefore held that Harter had met "his initial burden," id. at 7 (citing Reiner v. United States, 686 F.2d 1017, 1021 (D.C.Cir.1982)) and remanded the matter to the FSGB "with instructions to consider whether the Department has met its burden of showing that plaintiff would not have been promoted even in the absence of these critical comments...." Id.

On remand, the State Department convened an RSB to replicate the decisionmaking process of the original selection board and produce evidence as to whether Harter would have been promoted in 1983 if his file had been clean. The RSB was asked to compare Harter's redacted file against the files of the lowest-ranking officers on the 1983 list of those promoted. The RSB ultimately ranked Harter below the other officers whose files were before it, and the Department transmitted these results to the FSGB as part of its case on remand. The FSGB credited the RSB results and subsequently held that the Department had met its but-for burden "by a mechanism that resembles as closely as possible the selection boards that are mandated in the Foreign Service Act." This determination was subsequently affirmed by the district court. Harter, No. 87-0711, slip op. (D.D.C. Nov. 4, 1987).


Although Mr. Harter raises a number of challenges to the process that ended in his mandatory retirement, we believe only one

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issue--concerning the use of the RSB--merits discussion. 1 We understand Harter to raise two independent objections to the RSB procedure. First, he contends that the Foreign Service Act does not permit the State Department to use--and the FSGB to credit--the results of RSB deliberations in grievance proceedings. In the alternative, Harter alleges that it was...

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