U.S. Information Agency v. Krc

• Decision Date: 05 June 1990
• Docket Number: No. 89-5220,89-5220
• Citation: 905 F.2d 389
• Parties: 53 Fair Empl.Prac.Cas. 51, 53 Empl. Prac. Dec. P 39,986, 284 U.S.App.D.C. 284 UNITED STATES INFORMATION AGENCY, Appellee, v. Jan KRC, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 389

905 F.2d 389

53 Fair Empl.Prac.Cas. 51, 53 Empl. Prac.

Dec. P 39,986,

284 U.S.App.D.C. 284

UNITED STATES INFORMATION AGENCY, Appellee, v. Jan KRC, Appellant.

No. 89-5220.

United States Court of Appeals District of Columbia Circuit.

Argued May 4, 1990.

Decided June 5, 1990.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 87-01740).

R. Laird Hart, with whom John P. Rupp, Arthur B. Spitzer and Elizabeth Symonds, Washington, D.C., were on the brief for appellant.

Edward R. Cohen, Atty., U.S. Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., and Barbara L. Herwig, Atty., U.S. Dept. of Justice, Washington, D.C., were on the brief for appellee.

Susan Z. Holik, was on the brief for amicus curiae.

Before WALD, Chief Judge, and MIKVA and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Chief Judge WALD.

Separate Statements filed by WALD, Chief Judge, and MIKVA, Circuit Judge.

WALD, Chief Judge:

In early 1985, the United States Information Agency ("USIA" or "the agency") terminated appellant Jan Krc's employment in the Foreign Service. ¹ After the Foreign Service Grievance Board ("FSGB" or "the Board") ordered Krc's reinstatement without prejudice, USIA appealed to the United States District Court for the District of Columbia, which refused to enforce the Board's decision. The district court also dismissed Krc's claims that his termination violated his constitutionally protected liberty and property interests, as well as his statutory rights under the Administrative Procedure Act ("APA"), 5 U.S.C. Secs. 701 et seq. (1988). We remand for the district court to consider Krc's assertion of a violation of his right to equal protection, but otherwise affirm the trial judge's conclusions.

I. BACKGROUND

A. Statutory

The 1980 Foreign Service Act ("the Act") created the FSGB to resolve certain types of "grievances" brought by members of the Foreign Service. See generally 22 U.S.C. Secs. 4131 et seq. (1988). The Board is composed of

no fewer than 5 members who shall be independent, distinguished citizens of the United States, well known for their integrity, who are not employees of the Department [of State] or members of the [Foreign] Service.

Id. Sec. 4135(a). In general, a "grievance" is

any act, omission, or condition subject to the control of the Secretary [of State] which is alleged to deprive a member of the Service who is a citizen of the United States of a right or benefit authorized by law or regulation or which is otherwise a source of concern or dissatisfaction to the member....

Id. Sec. 4131(a)(1). The Act lists several examples of grievances, including "separation of the member allegedly contrary to laws or regulations." Id. Sec. 4131(a)(1)(A). Expressly excluded from the grievances under the FSGB's jurisdiction, however, is "the termination of a limited appointment under [section 611 of the Act]...." Id. Sec. 4131(b)(3). Section 611 provides that the Secretary of State "may terminate at any time" the appointment of most members of the Service serving under a limited appointment, id. Sec. 4011, unless "separation is to be by reason of misconduct," id. Sec. 4010(a)(2)(B). If a limited appointment member is separated for misconduct--a separation pursuant to Sec. 610 of the Act, id. Sec. 4010(a)(2)(B)--the member is entitled to a "hearing before the Foreign Service Grievance Board and the cause for separation established at such hearing...." Id.

Upon finding a grievance properly within its jurisdiction to be meritorious, the Board is authorized to direct the State Department to correct the grievant's official personnel record; to reverse a decision denying the grievant compensation or any other perquisite of employment; to reinstate the grievant; and to take other appropriate remedial action. Id. Sec. 4137(b). Furthermore, if the FSGB finds that a grievance merits remedial action "that relates directly to promotion, tenure, or assignment of the grievant," the FSGB "shall make an appropriate recommendation" to the Secretary of State. The Secretary shall implement that recommendation unless, within a thirty-day period, the Secretary rejects the Board's recommendation on the grounds that implementation "would be contrary to law or would adversely affect the foreign policy or national security of the United States." Id. Sec. 4137(d). "[A]ggrieved" parties may obtain review by a United States district court of final actions taken by the Secretary of State or the Board with regard to "any grievance," according to the standards set by the APA. Id. Sec. 4140.

B. Procedural

Jan Krc, born in Czechoslovakia in 1956 and naturalized in 1973, entered the Foreign Service under a "limited" appointment as an "officer candidate" in 1982, and was first posted abroad, to Yugoslavia, in 1983. Before and during his Yugoslav posting, Krc attended Foreign Service security briefings informing him that the fraternization policy for Foreign Service members posted in Yugoslavia was more liberal than the policy with regard to other East Bloc countries, and that casual sex was permissible. Krc claims that he also determined that local norms and laws did not impede casual relationships, homosexual or heterosexual. During his posting, he had homosexual relationships with two other Foreign Service officers, two individuals who may have been Yugoslav citizens, and a third country national. The information Krc received during the briefings, however, did not comport with the fraternization policy of USIA's home office, which prohibited all sexual contact with Yugoslav citizens.

During his debriefing at the end of his posting in 1984, Krc told a USIA security officer that he had engaged in homosexual conduct while in Yugoslavia. On the basis of that debriefing, USIA cancelled Krc's pending posting to South Africa to investigate his admissions. On October 3, 1984, Krc was notified by USIA's Office of Personnel that he was being terminated for insubordination and misconduct pursuant to Secs. 610 and 611 of the Act. After Krc provided documentation that he had never been informed of USIA's strict fraternization policy, Angie Garcia, USIA's Personnel Director, issued a letter of reprimand in lieu of termination. A month later, on January 11, 1985, Bernard Dowling, USIA's Director of Security, informed Garcia that he would "not approve any foreign service assignment of Mr. Krc because of the strong security risk involved." Joint Appendix ("J.A.") 106. Dowling explained that Krc's homosexuality would make him extremely vulnerable to hostile intelligence approaches. Garcia informed Krc two weeks later that in light of Dowling's promise not to approve future overseas assignments, she was terminating his Foreign Service appointment effective February 28, 1985, pursuant to Sec. 611 of the Act.

On March 2, 1985, USIA officially terminated Krc's Foreign Service appointment. The next day, however, USIA appointed him to a position in its domestic civil service, at an annual salary $333 higher than his Foreign Service salary. USIA never revoked Krc's security clearance, which he continues to use for his domestic work.

Krc filed a complaint with the FSGB protesting the termination of his Foreign Service appointment. The FSGB initially decided in August 1985 that Krc's complaint constituted a grievance within its jurisdiction; in March 1987, the FSGB ordered Krc reinstated to the Foreign Service on the grounds that his termination was "arbitrary and capricious and contrary to agency regulations." J.A. 58. The Board found no nexus between "the interests of national security" and the factors on which USIA had relied in denying Krc's clearance for overseas duty, J.A. 62, and therefore ordered USIA to remove the restriction barring Krc from overseas assignments and to reinstate Krc, without prejudice, to a new five-year term as a Foreign Service career candidate.

In June 1987, USIA sued in United States District Court for the District of Columbia to set aside the FSGB's action. Krc counterclaimed, seeking enforcement of the Board's order and alleging that USIA's failure to obey the order violated both his statutory rights under the APA as well as his constitutional due process rights. See J.A. 232-37. In its first opinion, on April 20, 1989, the district court granted USIA's motion to set aside the Board's order on the ground that the FSGB "did not have the authority to review USIA's revocation of [Krc's] security approval for overseas service and to order his reinstatement as a limited appointee...." United States v. Krc, No. 87-1740, slip op. at 13 (D.D.C. Apr. 20, 1989). ² This holding was based largely on Department of the Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d918 (1988), which had been handed down after the FSGB's determination. The district judge also dismissed Krc's claim to a violation of his property interest without due process. In a second opinion, filed May 31, 1989, the judge dismissed Krc's claims that USIA violated his liberty interest; without any discussion, he also rejected Krc's contention that USIA violated his statutory rights under the APA, and dismissed the case from the court's docket. United States Information Agency v. Krc, No. 87-1740, slip op. at 5 (D.D.C. May 31, 1989) (order) [hereinafter cited as May 31 Order]. As Part II-C, infra, discusses further, the judge apparently ignored Krc's May 1 amended counterclaim, see J.A. 238-49, which detailed his equal protection claims. On July 21, the judge dismissed for lack of jurisdiction Krc's June 2 motion to file a second amended counterclaim further delineating his constitutional claims. United States Information Agency v. Krc, No. 87-1740 (D.D.C. July 21, 1989) (order dismissing motion to amend counterclaim for lack of jurisdiction).

II. ANALYSIS

We now consider the district court's refusal to enforce the Board's decision and the court's dismissal of...