Picur v. Kerry
| Decision Date | 11 September 2015 |
| Docket Number | Civil Action No. 14–cv–1492 (KBJ) |
| Citation | 128 F.Supp.3d 302 |
| Parties | Gregory Picur, Plaintiff, v. John Kerry, Secretary, United States Department of State, Defendant. |
| Court | U.S. District Court — District of Columbia |
R. Scott Oswald, Nicholas Woodfield, Employment Law Group, P.C., Washington, DC, for Plaintiff.
Alexander Daniel Shoaibi, U.S. Attorney's Office, Washington, DC, for Defendant.
KETANJI BROWN JACKSON
Plaintiff Gregory Picur served as a Foreign Service criminal investigator for the Office of Inspector General of the United States Agency for International Development ("USAID OIG") from the 1990s until his retirement in May of 2010. The dispute in the instant case concerns the State Department's calculation of Picur's retirement annuity, which Picur alleges is incorrect. (See Compl., ECF No. 1, ¶ 14.)1 Generally speaking, Picur contends that the State Department wrongly based its annuity calculation on what the agency says Picur's salary should have been at the time of his retirement, rather than on the compensation that Picur actually received. (See id. ¶¶ 9–14.) Picur filed an administrative grievance contesting the agency's calculation of his retirement annuity, but the State Department denied his grievance (see id. ¶ 4), and on appeal of that denial, the Foreign Service Grievance Board ("FSGB") upheld the agency's calculation (see id. ¶¶ 5–8), finding that the State Department had determined Picur's retirement annuity in accordance with agency policies (see, e.g., id. ¶ 35). Picur has filed the instant action against Secretary of State John Kerry ("Defendant" or "the Secretary"), asking this Court to review and to set aside the FSGB's conclusion as arbitrary, capricious, and not in accordance with law under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701
–706 (2014). (See Compl. ¶¶ 2, 47–56.)
Before this Court at present is Defendant's motion for summary judgment. (See Def.'s Mot. for Summ. J. ("Def.'s Mot."), ECF No. 10, at 7–8.)2 Defendant argues that the FSGB's decision should be upheld because the Board examined the relevant evidence and provided a satisfactory explanation for its conclusion. (See Def.'s Mem. in Supp. of Def.'s Mot. ("Def.'s Br."), ECF No. 10, at 22–27.) But this Court finds that, when it affirmed the State Department's annuity calculation, the FSGB did not consider the crucial issue of whether or not the statutory scheme that governs calculation of Picur's annuity permits the agency to treat the annuity computation process as an opportunity to correct purported prior salary overpayments. In other words, it is clear to this Court that the FSGB ignored a key aspect of the problem that it was deciding in a manner that rendered its decision to uphold the State Department's annuity calculation arbitrary and capricious in violation of the APA. Consequently, Defendant's motion for summary judgment must be DENIED, the FSGB's decision must be VACATED, and the matter must be REMANDED for further consideration.
A separate order consistent with this memorandum opinion will follow.
Picur began working as a criminal investigator for USAID OIG in 1994; he was commissioned as a Foreign Service officer in 1998. (See Mem. from Melinda Chandler, U.S. Dep't of State to Mark S. Johnsen, Exec. Sec'y, FSGB (Jan. 9, 2014) ( ), AR at 127.) Picur served as a Foreign Service criminal investigator with USAID OIG until his retirement in May of 2010. (See id. ; see also Pl.'s Opp'n to Def.'s Mot. ("Pl.'s Opp'n"), ECF No. 12, at 6; Def.'s Br. at 11.)
Picur's career with USAID OIG included postings overseas—for example, Picur states that he was stationed in Egypt in 2006 and in Pakistan from 2009 through his retirement in 2010. (See Ltr. from Nicholas Woodfield to Linda Taglialatela, Deputy Assistant Sec'y for HR, U.S. Dep't of State (Mar. 2, 2012) ("Pl.'s Grievance"), AR at 17–18; Ltr. from Nicholas Woodfield to Mark. S. Johnsen, Exec. Sec'y, FSGB (Jan. 23, 2014) ("Pl.'s FSGB Rebuttal"), AR at 161; see also Pl.'s Opp'n at 6 ().) During the last ten years of his employment, Picur received an annual salary that was comprised of both his base pay amount—i.e., the set figure that corresponds to a Foreign Service employee's Class and Step within the Foreign Service's salary system, see 22 U.S.C. §§ 3963
, 3966 —and also an amount known as a "special differential," which is an additional payment that is provided to certain Foreign Service workers and is calculated as a percentage of that worker's base salary payment. See 22 U.S.C. § 3972(a) ().
22 U.S.C. § 4046(a)(1)
. The statute does not define "basic salary" as that term is used in section 4046(a)(1) ; however, section 4046(a)(8) makes clear that a participant's "basic pay" for annuity calculation purposes includes the special differential pay that Foreign Service officers are authorized to receive. Id. § 4046(a)(8). Moreover, section 4046(a)(9) provides that, when determining the average basic salary for the highest 3 consecutive years of service—commonly referred to as the participant's "high three" (see Compl. ¶ 13)—"the basic salary or basic pay of any member of the [Foreign] Service whose official duty station is outside the continental United States shall be considered to be the salary or pay that would have been paid to the member had the member's official duty station been Washington, D.C., including locality-based comparability payments[.]" 28 U.S.C. § 4046(a)(9).4
In August of 2010—a few months after his retirement—Picur received a letter from the State Department providing him with a " ‘final’ Annuity Calculation." (E-mail from Greg Picur to Amber Hanbury, HR Specialist, U.S. Dep't of State (Sept. 9, 2010), AR at 117.) According to Picur, "the ‘high three’ amount listed in th[at] calculation [was] substantially less than" the amount that "USAID OIG Human Resources" had told Picur to expect. (Id. ) Picur began corresponding with officials at the State Department and USAID OIG, inquiring about the details of his high three calculation and the reasons for the unexpected discrepancy. (See, e.g., Email from Bonnie Brown, Retiree Activities Coordinator, Am. Foreign Serv. Ass'n, to Richard A. Crisp, Supervisory HR Specialist, U.S. Dep't of State (Sept. 15, 2010), AR at 114–18.) In an e-mail dated September 10, 2010, on which Picur was copied, a Deputy Director of Human Resources at the State Department explained that the agency had calculated Picur's high three average based on the salary of a "GS–15 Step 10, which is Executive Schedule Level IV, or $155,500" pursuant a pay cap that was established in a memorandum that USAID Inspector General Donald A. Gambatesa issued in March of 2006. (Email from Richard A. Crisp, Supervisory HR Specialist, U.S. Dep't of State, to Joyce Douglas, HR Specialist, USAID OIG (Sept. 10, 2010), AR at 114–15; see also Memorandum: Law Enforcement Availability Pay (LEAP) or USAID OIG Commissioned Foreign Serv. Officer Criminal Investigators (Mar. 31, 2006) ("Gambatesa memo"), AR at 8–9.) The Gambatesa memo, which is addressed to the USAID OIG assistant inspector general for investigations, authorizes special differential pay for USAID OIG Foreign Service criminal investigators. (Seeid. at 8 ().) Significantly for present purposes, the memo further states that the "OIG's Acting Legal Counsel ... has made the determination that special differential is subject to a bi-weekly pay cap under the Foreign Affairs Handbook which is similar to the one provided to General Schedule employees" and "[t]herefore, along with granting the increase in special differential, OIG will also implement a bi-weekly pay cap for all [Foreign Service] officers." (Id. at 9 (emphasis supplied).) The Gambatesa memo also expressly adopts a grandfather clause, however; it states specifically that "[e]mployees whose total compensation is above the cap will be allowed to maintain their current total compensation[.]" (Id. )
The State Department acknowledges that Picur's salary was not, in fact, capped pursuant to the Gambatesa memo at the time that it was paid to him. (See Def.'s Suppl. FSGB Mem., AR at 131.) Nevertheless, the agency insists that the Gambatesa memo's salary limitations should have applied to Picur and, thus, that his special differential pay from 2006 forward should have been subjected to the biweekly cap such...
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