Colm v. Kissinger, Civ. A. No. 74-1371.
| Decision Date | 17 December 1975 |
| Docket Number | Civ. A. No. 74-1371. |
| Parties | Peter W. COLM et al., Plaintiffs v. Henry KISSINGER, Defendant. |
| Court | U.S. District Court — District of Columbia |
Ann D. DuRoss, Asst. U. S. Atty., Washington, D. C., for defendant.
In this action, two former Foreign Service officers challenge their involuntary retirements from the Service. The plaintiffs, Peter Colm and John McIntyre, were selected out of the Foreign Service when they failed to be promoted within the period of time then prescribed by State Department regulations for officers of their class. They allege that the personnel files relied upon by the selection boards determining whether they would be promoted contained adverse and improper material to which they were denied access and to which, therefore, they could not respond. This procedure, they claim, has deprived them of property without due process of law in violation of the Fifth Amendment of the Constitution. Plaintiffs seek: (1) a declaratory judgment that their involuntary retirements were contrary to law; (2) reinstatement in the Foreign Service; and (3) an impartial administrative hearing to determine the propriety of their involuntary retirements.
The defendant, the Secretary of State, interposes the equitable defense of laches and alternatively argues on the merits that plaintiffs were not denied due process of law, because they were not deprived of any property interest. Before the Court at this stage of the litigation is plaintiffs' motion for summary judgment and defendant's motion to dismiss or in the alternative for summary judgment. On the basis of the pleadings, memoranda, affidavits, exhibits and oral argument of the parties, and for the reasons to be outlined in this Memorandum, the Court finds that on the merits the defendant is entitled to summary judgment.1
The Foreign Service Act of 1946, as amended,2 provides for selection-out of the Service on time-in-class grounds and on substandard performance grounds:
The selection-out for time-in-class, § 633(a)(1) of the Act4 is in essence an "up or out" system. Either the Foreign Service officer is promoted to the next class within the specified time period or he is involuntarily retired. The Congressional purpose behind this system is to develop an "elite corps" of men and women capable of serving at the highest levels of the Foreign Service. An officer who has reached his highest level of performance in the middle grades does not belong in this group. When it is determined that he is unable to further develop or assume greater responsibilities, there is no place for the officer in the Service. His separation is accomplished by the "promotion-up or selection-out" system.5
Plaintiff Colm entered the Foreign Service on September 19, 1960, as a Class 4 officer. Plaintiff McIntyre entered as a Class 6 officer on August 14, 1955, was promoted to Class 5 on January 29, 1957, and to Class 4 on April 7, 1962. The maximum time-in-class for Class 4 officers was eight years during plaintiffs' service. Not having been promoted in that time, Colm was involuntarily retired on September 20, 1968, and McIntyre on November 15, 1970.
Promotion of Foreign Service officer is determined by his comparative ranking against all other officers in his class. The performance of each Foreign Service officer is evaluated annually by his supervisors according to precise and clear criteria established by the Department of State and generally made known to the members of the Foreign Service.6 These reports plus other documentation relating to an officer's performance constitute his "performance file." In accordance with the Foreign Service Act, § 623,7 Selection Boards are convened annually to review each officer's performance file and to rank that officer in comparison with his peers on the basis of relative merit.
It is the administrative management of the Department of State, however, that determines the number of officers in each class to be promoted. When compiling rank-order lists of officers, the Selection Boards do not know the cut-off point above which all officers so ranked will be nominated for promotion.
The fact, then, that an officer is selected out on time-in-class grounds does not mean that his performance has been unsatisfactory, nor even that it has not been above average. Rather, it reflects the fact that during the years in his class other officers were deemed to have had better performance records.
Section 633 of the statute also provides for selection-out for substandard performance.8 Foreign Service officers who are ranked in the bottom percentages of their class are involuntarily retired. Plaintiffs were not separated pursuant to this provision. In the case of Lindsay v. Kissinger,9 it was held that certain procedural safeguards must be afforded in substandard performance selection-out proceedings. These included the right to a hearing upon adequate notice, to be represented by a retained attorney, to appear personally at Government expense, to present witnesses, and to confront persons within the State Department who have submitted adverse materials to the officer's performance file.10 The Lindsay plaintiffs were Foreign Service officers at the time their suit was filed. In the subsequent case of Bergstrom v. Kissinger,11 the same court held that the Lindsay holding would not be retroactively applied to former Foreign Service officers who had been involuntarily retired under the substandard performance selection-out procedures prior to the Lindsay decision.12
There is one other section of the Foreign Service Act which provides for separation of officers from the Service. Section 637(a) provides for separation of an officer "on account of the unsatisfactory performance of his duties, or for such other cause as will promote the efficiency of the Service . . .."13 The section requires that such an officer be given written reasons for his separation and be afforded a hearing at which his unsatisfactory performance or other cause for separation must be established.
Plaintiffs were never allowed to see certain confidential portions of their efficiency reports. Therefore they were not even aware of the adverse comments in their files which they allege severely impaired their promotion possibilities. Even had they been aware of these materials, there was little they could do to rebut them under the existing State Department regulations.14 Their only response would have been to submit a simple rebuttal which would have been placed in their personnel files. It is asserted by plaintiffs that such action would have worked to the prejudice of their careers even more, because their superiors would have deemed them not to be "team players" and to be "rocking the boat." There was no opportunity to mount any challenge to these comments before an impartial tribunal.
The selection-out of plaintiffs under such circumstances, it is alleged, violates plaintiffs' rights to procedural due process. Plaintiffs assert that it is now settled law that before an individual may be dismissed from public employment, he is entitled to a hearing process at least informing him of the grounds for dismissal and giving him an opportunity to challenge those grounds.15 Plaintiffs state that they had a reasonable expectation that they would be able to continue in the Foreign Service until they reached the mandatory retirement age.16 They acknowledge that a Foreign Service officer's appointment is subject to earlier termination for cause, for substandard performance, or for failure to be promoted. In the case of selection-out for cause, the Foreign Service Act itself requires a hearing.17 In the case of selection-out for substandard performance, the Lindsay case requires that a hearing be given. Thus plaintiffs argue selection-out for failure to be promoted, which cuts short the same expectation of continued employment as the other two selection-out procedures, must also be accompanied by a due process hearing.
The defendant does not dispute, and indeed even acknowledges, that plaintiffs have been denied a "due process" hearing. The issue, then, is whether plaintiffs were deprived of a "property interest" in their continued employment. The Court concludes that they had no such property interest in the constitutional sense and they were therefore not entitled to a due process hearing before their employment was terminated.
Several cases decided by the Court of Claims in the 1960's indicated that government employees both Foreign Service and military officers in a system of selection-out for reasons other than cause were not entitled to the due process protections of a hearing. Thus in Chwat v. United States,18 the Court of Claims distinguished between the provisions of § 637(a) of the Foreign Service Act19 providing for separation for cause and requiring a hearing, and § 633(a),20 providing for selection-out for substandard performance and making no mention of a hearing. Where Congress had expressly provided for a hearing in one situation, the court would not implicitly provide for it in the other.21
These cases, of course, were...
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