Wright v. Foreign Service Grievance Bd.

• Decision Date: 03 August 2007
• Docket Number: Civil Action No. 06-0526(JDB).
• Citation: 503 F.Supp.2d 163
• Parties: Phillip E. WRIGHT, Plaintiff, v. FOREIGN SERVICE GRIEVANCE BOARD, et al., Defendants.
• Court: U.S. District Court — District of Columbia

503 F.Supp.2d 163

Phillip E. WRIGHT, Plaintiff, v. FOREIGN SERVICE GRIEVANCE BOARD, et al., Defendants.

Civil Action No. 06-0526(JDB).

United States District Court, District of Columbia.

August 3, 2007.

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COPYRIGHT MATERIAL OMITTED

Phillip E. Wright, China Grove, NC, pro se.

Diane M. Sullivan, United States Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

BATES, District Judge.

Plaintiff Phillip E. Wright is a former member of the Foreign Service who resigned from his position as a Public Affairs Officer in Kinshasa, Congo, on July 14, 2005, pursuant to the terms of a settlement agreement he reached with the State Department. The settlement agreement provided, in part, that plaintiff would relinquish all future administrative and judicial claims against the State Department. Prior to his resignation, plaintiff had filed a grievance appeal with the Foreign Service Grievance Board ("FSGB") on March 6, 2002, requesting that the State Department expunge or otherwise amend allegedly inaccurate and falsely prejudicial material in his official personnel file. Plaintiff, proceeding pro se, now brings this action against the FSGB, the State Department, and Condoleeza Rice in her official capacity as United States Secretary of State in part as an appeal of the FSGB's July 8, 2003 denial of plaintiffs grievance. Plaintiff also seeks a declaratory judgment that the July 14, 2005 settlement agreement is void (1) for being signed under duress, (2) for lack of consideration, (3) as against public policy, or (4) as a violation of due process.

Defendants move for summary judgment on plaintiffs challenge to the FSGB's July 8, 2003 decision (herein referred to as Count II), asserting that it is barred by the settlement agreement. Defendants further contend that even if the settlement agreement did not bar plaintiffs action, the FSGB's decision was neither arbitrary, capricious, an abuse of discretion, nor otherwise contrary to law. Defendants also move pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) to dismiss plaintiffs claim for rescission of his July 14, 2005 settlement agreement (herein referred to as Count III), alleging that the Court lacks subject-matter jurisdiction to entertain the claim and that plaintiff has failed to state a claim upon which relief may be granted. In addition, plaintiff has filed a motion for summary judgment as part of his opposition.

Upon consideration of the parties' submissions and for the reasons set forth below, the Court will grant defendant's motion for summary judgment on Count II. The Court will also grant defendant's motion to dismiss plaintiffs Count III nonconstitutional challenges to the settlement agreement for lack of subject-matter jurisdiction. The Court will grant defendant's motion to dismiss plaintiffs Count III constitutional claim — that the FSGB statutory scheme violates due process — for failure to state a claim upon which relief may be granted. Finally, the Court will deny plaintiffs motion for summary judgment.

BACKGROUND

Plaintiff Phillip E. Wright began his employment with the Foreign Service of the United States Information Agency ("USIA") in 1985.¹ A.R. 44. From 1985 to 1997, plaintiff served in field offices in South Africa, Macedonia, and China, as well as in the USIA Operations Center in Washington, D.C. See A.R. 44-48. Plaintiff then took an extended period of leave without pay before beginning work in the State Department Declassification Center in 1999. Pl.'s Ex. 1 at 14.

The material events in the present action began when plaintiff received a "low ranking" by the 2000 Selection Board (SB) and was referred to the 2000 Performance Standards Board (PSB). A.R. 44-49; 170-72. The 2000 PSB issued plaintiff a "Designation for Separation," mandating his "selection out" of the Foreign Service for failure to maintain the standards of performance required of his class. A.R. 44.-49. The Foreign Service utilizes an "up or out" personnel system, see Molineaux v. United States, 12 F.3d 264, 265 (D.C.Cir. 1994), whereby each year an SB reviews employees of the same grade for promotion and ranks "in order of merit those members recommended for immediate promotion." Defs.' Ex. 4 at 7. Each member reviewed for promotion is also reviewed for low ranking, and the SB must low rank five percent of the officers in each class reviewed. A.R. 170; see also 22 U.S.C. §§ 4002-03; Defs.' Ex. 4 at 8. The SB rankings are based largely upon annual Employee Evaluation Reports ("EERs"). See A.R. 56, 63-64, 165-172; see also Pl.'s Ex. 1 at 5-10; Defs.' Ex. 3 at 3; Defs. Ex. 4 at 2. The SB refers employees with the lowest rankings to the PSB, which may recommend that the Foreign Service Officer (FSO) be selected out. See 22 U.S.C. § 4008; see also Defs.' Ex. 4 at 9; Defs.' Ex. 5 at 3-5. Regardless of whether an FSO is selected out, those who are not promoted from one class to the next within a specified amount of time ("time in class") are automatically retired. See 22 U.S.C. § 4007(c).

If a member of the Foreign Service wishes to contest an EER as inaccurate, incomplete, or falsely prejudicial, or wishes to challenge a PSB Designation for Separation as contrary to law or predicated upon an alleged inaccuracy, omission, error, or falsely prejudicial information, he may file an agency-level grievance with the State Department. 3 Foreign Affairs Manual ("FAM") § 4412(c)(1), (5); 22 U.S.C. § 4131(a)(1)(A), (E); 22 C.F.R. § 901.18(a)(1), (5) (2007); 3 FAM § 4431-34. The State Department will review the grievance and issue a decision "within 90 days from the date of receipt of the initial written presentation of the grievance." 3 FAM § 4434.4(a). If a grievant is unsatisfied with the State Department's resolution of his grievance, he may appeal to the FSGB within sixty days. 3 FAM § 4451-52; 22 C.F.R. § 903.1 (2007).

In accordance with this procedure, plaintiff filed a grievance with the State Department on May 9, 2001, contesting his 2000 Designation for Separation; the low rankings he received in 1996, 1997, 1999, and 2000; and eight EERs spanning rating periods from 1986 to 1995. See A.R. 30-43. Upon examination of plaintiffs grievance, the State Department determined that there were "major procedural errors" in one of plaintiffs EERs, and ordered that the EER be expunged from plaintiffs official personnel file. A.R. 07-08; 222-23. Because the 2000 SB and 2000 PSB had drawn upon this EER in their assessments of plaintiff, the State Department issued an interim decision on June 19, 2001, rescinding plaintiffs 2000 Designation for Separation and deleting plaintiffs 2000 low ranking from its records. Id. However, on December 28, 2001 the State Department denied plaintiffs request to expunge or amend the remaining seven contested EERs, as well as his request to delete his 1996 and 1999 low rankings. A. R. 206-15.

Plaintiff appealed the partial denial of his grievance to the FSGB on March 6, 2002, seeking to have four EERs covering his service in China expunged in their entirety and three others (two from his service in Macedonia and one from his service in South Africa) amended. A.R. 02-06; 201; 530. Plaintiff further challenged his 1996 and 1999 low rankings on the grounds that they were both based upon the contested EERs, and on the basis that the 1999 SB Chairperson harbored personal hostility towards him. Id. On March 26, 2002, plaintiff submitted a discovery request to the State Department seeking to propound 945 interrogatory questions to forty-six individuals. A.R. 269-442. The State Department objected to plaintiff's request as unduly broad and in excess of the standard thirty-interrogatory limit. A.R. 443-46. After a lengthy debate between plaintiff and the State Department over the number of allowable interrogatories, the FSGB issued a final decision on October 1, 2002, mandating that plaintiff submit a revised list of thirty interrogatories within fifteen days. A.R. 447-92. When plaintiff failed to comply, the FSGB deemed discovery closed on December 2, 2002. A.R. 500-07.

On July 8, 2003, the FSGB issued its decision denying plaintiffs appeal in full. A.R. 527-42. First, the FSGB denied plaintiffs request to remove or amend his seven contested. EERs, holding that the "EERs met the general standards for its review of employee evaluations." A.R. 529; see also A.R. 533-36. Because the validity of the EERs was affirmed, the FSGB found no basis upon which to ex, punge plaintiffs 1996 low ranking. See A.R. 536. Finally, the FSGB rejected plaintiffs argument that his 1999 low ranking should be deleted, finding no evidence that "an adversarial relationship ever existed" between plaintiff and the 1999 SB Chairperson. A.R. 536-37.

While the FSGB appeal was pending, plaintiff received a low ranking by the 2002 SB. Pl.'s Ex. at 3-6. The 2002 SB "commend[ed] Mr. Wright's work in the Declassification Unit," but nonetheless found that plaintiff was not "on a par with his class," since he "ha[d], not had a recent opportunity to manage public diplomacy programs abroad." Pl.% Ex. at 5. Plaintiff was subsequently given this opportunity when he was sent to a new post in Kinshasa, Congo, but he was again low-ranked by the 2003 SB, which "called into question his interpersonal skills." Pl.'s Ex. 1 at 9-10. Because plaintiff had received more than one low ranking in five years, he was automatically referred to the 2003 PSB in accordance with State Department policy. Pl.'s Ex. 1 at 7; see also Defs.' Ex. 4 at 9. After reviewing plaintiff's personnel records in their entirety, the 2003 PSB designated plaintiff for selection out. Pl.'s Ex. 1 at 13-16. On April 1, 2005, plaintiff filed a grievance seeking agency review of his 2002 and 2003 SB low rankings as well as his 2003 PSB Designation for Separation. Pl.'s Ex. 1 at 23-33. Plaintiffs separation was held in abeyance while the State Department considered the merits of his grievance, see Pl.'s Ex. 1 at...