Salleh v. Christopher
| Decision Date | 14 June 1996 |
| Docket Number | No. 95-5271,95-5271 |
| Citation | 85 F.3d 689 |
| Parties | , 8 NDLR P 163 Jamari SALLEH, Appellee v. Warren CHRISTOPHER, Secretary of State, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (93cv2405); Kessler, J.
R. Craig Lawrence, Assistant United States Attorney, argued the cause, for appellant, with whom Eric H. Holder, Jr., United States Attorney, Washington, DC, was on the briefs. Susan A. Nellor entered an appearance.
Stephen L. Spitz, argued the cause and filed the brief, Washington, DC, for appellee.
Sharon L. Papp, was on the brief, Washington, DC, for amicus curiae.
Before: SILBERMAN, BUCKLEY, and ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge SILBERMAN.
Appellant, the Secretary of State, argues that he has the authority to discharge Jamari Salleh, a Foreign Service Officer, even though the Foreign Service Grievance Board concluded that cause for the discharge had not been established at a § 610(a)(2) hearing. Since the Board's decision under the Foreign Service Act is final, the district court opinion reinstating Salleh and awarding back pay is affirmed.
Jamari Salleh was hired by the State Department in 1981 as a Foreign Service Officer and was subsequently granted career status. In 1989, she was indicted for submitting falsified claims for reimbursement to the U.S. Government to which she pleaded guilty and received a three-year suspended sentence, four years probation, a $5,000 fine, and was ordered to return the illegally obtained money. The court refused to decide whether Ms. Salleh should be required to resign from the Foreign Service, noting that the "proper decision-maker in that connection should be the Department of State."
After her conviction, the Acting Director General of the Foreign Service proposed that she be discharged. At Ms. Salleh's request, the Foreign Service Grievance Board conducted an evidentiary hearing on the discharge proposal. The Board concluded that discharging Ms. Salleh would violate § 501 of the Rehabilitation Act of 1973 since Ms. Salleh's criminal conduct stemmed from her alcoholism, a disability under the act, and, even if it were not, discharge would still be inappropriate given the effect drinking had on her behavior. The Secretary of State, Warren Christopher, issued an order in June, 1993 (some 13 months later) concluding that he "possesses authority to review conclusions of the Foreign Service Grievance Board, and to reach a contrary conclusion if merited." The Secretary thus directed Ms. Salleh's discharge without pursuing judicial review of the Board's decision. The Secretary asserted that "the charged employee's conduct in committing these crimes is prejudicial to the U.S. Government and the Department of State, and that her continued employment does not promote the efficiency of the Foreign Service." In response, the Board expressed the view that its decision was final and could not be ignored by the Secretary.
Ms. Salleh filed an action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (1994), and the Foreign Service Act of 1980, as amended, 22 U.S.C. § 3901 et seq. (1994), seeking reinstatement, back pay, a declaratory judgment that the Secretary's action was ultra vires, injunctive relief, a writ of mandamus directing the Secretary to comply with the Board's decision, and any other appropriate relief. On cross-motions for summary judgment, the district court concluded that the Board's decision was final and therefore the Secretary's discharge of Ms. Salleh was illegal. The district court subsequently ordered the State Department to reinstate Ms. Salleh and provide her with full back pay and other benefits retroactive to the date of her discharge.
The government contends that the language and structure of the Foreign Service Act provides the Secretary with authority to overrule the Board and discharge an employee such as Ms. Salleh. Both parties agree that whether the government is correct or not depends on the proper interpretation of § 610(a) of the Foreign Service Act which states:
(a) Authorization of Secretary; hearing prior to separation; waiver of hearing
(1) The Secretary may separate any member from the Service for such cause as will promote the efficiency of the Service.
(2) A member of the Service who ... is assigned to a salary class in the Foreign Service Schedule and ... is serving under a career appointment ... shall not be separated from the Service under this section until the member has been granted a hearing before the Foreign Service Grievance Board and the cause for separation established at such hearing, unless the member waives in writing the right to a hearing. If such cause is not established at such a hearing, the Grievance Board shall have the authority to direct the Department to pay reasonable attorneys fees to the extent and in the manner provided by section 4137(b)(5) of this title. The hearing provided under this paragraph shall be in accordance with the hearing procedures applicable to grievances under section 4136 of this title and shall be in lieu of any other administrative procedure authorized or required by this or any other law.
22 U.S.C. § 4010 (1994) (emphases added). Ms. Salleh was clearly entitled to a § 610(a)(2) hearing as she was assigned to a salary class in the Foreign Service Schedule and was serving under a career appointment. But what is the Board's function in such a hearing? The government relies on the "plain meaning" of § 610(a)(1) as providing the Secretary with plenary authority to discharge employees such as Ms. Salleh. Section 610(a)(2), it is argued, merely provides a member of the Foreign Service, if she so chooses, an opportunity to present her side at the hearing. The government concedes that the grounds for the discharge must be "established at such hearing," but it claims that it is up to the Secretary to ultimately decide whether such a showing has been made. The Board's role is to merely preside over the hearing and make recommendations to the Secretary. The Board, on the other hand, reads § 610(a)(2) as delegating to it the final authority to determine whether the Secretary's decision is justified.
The government insists the Secretary's interpretation of § 610(a) is entitled to Chevron deference since the dispute between Ms. Salleh and the Secretary (really, the Board and the Secretary) involves the scope of his authority under § 610(a)(1). While it is of course true that this dispute involves the scope of the Secretary's power under § 610(a)(1), it is equally true that the scope of the Board's authority under § 610(a)(2) is at stake. The issue can be formulated either way. The government relies on Molineaux v. United States, 12 F.3d 264 (D.C.Cir.1994), a case in which we did defer to the Secretary's interpretation of the Foreign Service Act. But Molineaux did not create a general rule that the Secretary, as opposed to the Board, is always entitled to deference as to his interpretation of the statute. Molineaux involved a challenge to the Secretary's compliance with § 601(c)(2)(C), 22 U.S.C. § 4001(c)(2)(C) (1994), which specifically directs the Secretary to determine the proper number of promotions into the Senior Foreign Service based upon various factors. Moreover, there was no disagreement in Molineaux between the Board and the Secretary as to the statute's meaning. Id. at 266-67. Here, we have arguably inconsistent grants of authority to the Secretary and the Board. To defer to the government is virtually to assume that Congress delegated the disputed authority to the Secretary--which is the very issue on the merits.
The premise of Chevron deference is that Congress has delegated the administration of a particular statute to an executive branch agency. See Adams Fruit Co. v. Barrett, 494 U.S. 638, 649, 110 S.Ct. 1384, 1390, 108 L.Ed.2d 585 (1990). From that premise is implied the additional delegation to reconcile ambiguities in statutory language. Where, as here, the premise is in dispute because two executive branch entities (in this case a department and an independent adjudicatory body) claim conflicting administrative authority, it would be inappropriate to defer to either's statutory interpretation as to the issue of basic authority. Although we have recognized that Chevron deference applies to an agency's interpretation of its "jurisdictional" authority, see Oklahoma Natural Gas Co. v. FERC, 28 F.3d 1281, 1283-84 (D.C.Cir.1994), we have never deferred where two competing governmental entities assert conflicting jurisdictional claims. 1
This case is analogous to those decisions of ours that have declined to defer to an agency's interpretation of a statute when more than one agency is granted authority to interpret the same statute. See, e.g., Rapaport v. U.S. Dept. of Treasury, 59 F.3d 212, 216-17 (D.C.Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 775, 133 L.Ed.2d 727 (1996); Benavides v. U.S. Bureau of Prisons, 995 F.2d 269, 272 n.2 (D.C.Cir.1993); Professional Reactor Operator Soc. v. U.S. NRC, 939 F.2d 1047, 1051 (D.C.Cir.1991). In such cases, it cannot be said that Congress implicitly delegated to one agency authority to reconcile ambiguities or to fill gaps, because more than one agency will independently interpret the statute. 2 Similarly, here both the Secretary and the Board have been delegated authority under two sequential provisions of § 610(a). To determine their respective authority, the whole section must be interpreted. Therefore, insofar as they assert conflicting interpretations as to who has power to make the final decision on Ms. Salleh's discharge, we cannot defer to either.
The government emphasizes that § 610(a)(2)'s requirement that "cause for separation be established at such hearing" does not explicitly...
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