Molineaux v. U.S., 92-5208

• Decision Date: 07 January 1994
• Docket Number: No. 92-5208,92-5208
• Citation: 12 F.3d 264
• Parties: Paul D. MOLINEAUX, et al., Appellants, v. UNITED STATES of America, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 264

12 F.3d 264

304 U.S.App.D.C. 238

Paul D. MOLINEAUX, et al., Appellants, v. UNITED STATES of America, et al.

No. 92-5208.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 19, 1993.

Decided Jan. 7, 1994.

Thomas G. Corcoran, Jr. argued the cause for appellants. With him on the brief was Bridget R. Mugane.

Diane Sullivan, Asst. U.S. Atty., argued the cause for appellees. With her on the brief were J. Ramsey Johnson, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys. Before: EDWARDS, SILBERMAN, Circuit Judges, and MILTON I. SHADUR, ^* Senior District Judge, United States District Court for the Northern District of Illinois, Eastern Division.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

This is an appeal from a district court order affirming a decision of the Foreign Service Grievance Board. Appellants, Foreign Service Officers, claim that the Secretary of State violated a statutory requirement that the number of Foreign Service promotions be based on a long-term projection designed to provide a regular, predictable flow of promotions. The Board determined that appellants' arguments were without merit, and the district court agreed. We affirm.

I.

In 1980, Congress laid down a framework for hiring, promoting, and retaining Foreign Service Officers. Foreign Service Act of 1980, Pub.L. No. 96-465, 94 Stat. 2071 (1980). Just as the military, the Foreign Service is an "up or out" system. Officers, after a probationary period, are granted "career appointments." 22 U.S.C. Secs. 3941(d), 3946 (1988). After securing a career appointment, an officer has 20 years to be promoted into the Senior Foreign Service (SFS); failing such a promotion, an officer is involuntarily retired. 22 U.S.C. Sec. 4007 (1988). Congress enacted the Foreign Service Act of 1980, in part, to deal with personnel problems stemming from a perceived lack of opportunities for promotion into the SFS.

Section 601(c)(2) of the Act directs the Secretary of State to determine the number of promotions "based upon a systematic long-term projection of personnel flows and needs designed to provide [inter alia] a regular predictable flow of talent ... into the SFS." 22 U.S.C. Sec. 4001(c)(2)(C) (1988). ¹ To comply with the statute, the Secretary devised a personnel model to help him determine the number of needed promotions. The model generates promotional estimates for each of five years based on the attrition of existing officers, the number of available positions and the available people at each level, and other estimated figures. These estimates are then averaged, and the resulting average is used for the upcoming year as the available number of promotions. ² In two years, 1984 and 1985, the five-year rolling average was itself averaged with the projection for the upcoming year (so-called double-averaging), thus putting more weight on the upcoming year.

Appellants are 22 individuals who were Class One Foreign Service Officers (Officers or FSO-1s) prior to their involuntary retirement. After the Department rejected their claim that the State Department violated section 601(c)(2) by not basing the number of promotions upon the required systematic, long-term projections, the Officers filed grievances with the Foreign Service Grievance Board. Some sought retroactive promotion, while others desired an extension of time in which to gain a promotion, and a few who had resigned or retired sought reinstatement.

The Officers argued that the Department's projections were not "designed to provide" a regular, predictable flow because when new circumstances arose, the Department did not take steps to ensure appropriate promotion into the SFS. When it became apparent that a decline in voluntary senior attrition was occurring and that positions within the SFS would be eliminated, the Department should, it is argued, have taken steps to counteract a decline in FSO-1 promotions. Instead of increasing egress from the SFS to accommodate the FSO-1s, however, the Department decreased the number of promotions by issuing limited career extensions ³ to SFS Officers who might otherwise be forced out. The Officers claimed that the Department ultimately subordinated the regular predictable flow requirement to its desire to retain current SFS Officers. ⁴

Appellants further asserted that the Department, by misrepresenting the likelihood of promotions, misled them into entering a competition for promotions into the SFS earlier than they would have done otherwise. Under the statutory and regulatory scheme, FSO-1s must choose to open their six-year promotional "windows" to compete for promotions into the SFS. If officers are not promoted within those six years, they are involuntarily retired. After receiving a Department letter which assured all officers that the Secretary would comply with the Act when determining the number of promotions, appellants opened their windows.

The Department responded that the projections used by the Secretary did not have to "ensure" a regular, predictable flow. As long as they were "designed to provide" such a flow, the statute was satisfied. The Department also claimed that promotion was not given absolute priority over all other departmental interests. The statute did not force the Department to ignore other needs in order to obtain a steady progression into the SFS.

In a lengthy opinion, the Board concluded that the Department had not violated the statute. ⁵ The Board reasoned that though there had not been a regular, predictable flow of promotions into the SFS, it agreed with the Secretary that the statute did not actually require such a flow. The Department was obliged only to develop projections which were "designed to provide" the flow. Designed to provide meant something akin to "reasonably calculated to achieve certain outcomes, or designed to serve the purpose of bringing about." The Department's model met that standard. Had all the assumptions about future trends been correct, the congressional goal of a regular, predictable flow might have been met as well.

With respect to the Officers' contentions that the Department had improperly subordinated promotions to senior retention, the Board concluded that legitimate unanticipated occurrences--the decline in senior attrition and a decline in the total number of senior positions--permitted the Department to retain SFS Officers over promoting FSO-1s. The Department did not need to annually adjust the amount of SFS attrition when it became clear that there was less voluntary departure and that some SFS positions would be eliminated. In other words, the statute did not require that the Department increase the number of SFS Officers leaving the Service to make way for FSO-1s.

II.

The Officers assert that the Secretary of State did not comply with the statute because the number of promotions actually generated by the model was not based upon a "long-term projection," was not "systematic," and the model was not "designed to provide" a "regular, predictable flow of promotions." This language, as is apparent, is not very precise. Rather than specifying a set number of yearly promotions into the SFS, Congress merely instructed the Secretary to fix the number of available promotions based on a long-term projection. 22 U.S.C. Sec. 4001(c)(2)(C) (1988). Indeed, before the Board, the Department unsuccessfully argued that section 601 provides "no law to apply," see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971). The government does not reiterate the argument before us, but we acknowledge that the statutory language has little bite; the command is muted--one of emphasis, even attitude, rather than exact instructions. The words "long-term projection" and "regular, predictable flow of promotions" obviously permit a range of interpretation and application.

Accordingly, the government argues that Chevron deference is owed to the Secretary's interpretation of the language, see Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and the Board's conclusion that the model complied with the statute is likewise subject to only limited review--as a finding of fact. We have previously considered the interrelationship between the Secretary and the Board in the context of judicial deference. See United States v. Paddack, 825 F.2d 504, 513-14 (D.C.Cir.1987). In that case, involving an interpretation of the State Department's travel expense regulations, the Board rejected the Department's interpretation. We refused to defer to the Secretary because the United States Information Agency, the employing agency within the Department, had actually changed its interpretation under pressure from the General Accounting Office, and the Secretary had not actually offered a departmental interpretation of the regulation. Under those unusual circumstances, we felt obliged to defer to the Board, whose decision we were charged with reviewing. Id. at 514.

The Supreme Court, faced subsequently with an analogous situation--whether to defer to the Secretary of Labor's construction of her regulation in an appeal from the Occupational Safety and Health Review Commission or to defer to the Commission's contrary construction--determined that the policies underlying the doctrine of judicial deference to an agency's regulatory interpretation counseled deference to the Secretary rather than to an independent adjudicatory agency. See Martin v. Occupational Safety and Health Review Comm'n, 499 U.S. 144, 150-57, 111 S.Ct. 1171, 1176-79, 113 L.Ed.2d 117 (1991). The provisions in OSHA dealing with judicial review of the Commission spoke only of findings of fact. Those findings were to be treated as "conclusive" so long as "supported by substantial evidence". 29 U.S.C. Sec. 660(a) (1988). Accordingly, the Court concluded that Congr...