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02/14/89 Francis S. Hall, v. James A. Baker

February 14, 1989

FRANCIS S. HALL, APPELLANT

v.

JAMES A. BAKER, SECRETARY, U.S. DEPARTMENT OF STATE 1989.CDC.61 DATE DECIDED: FEBRUARY 14, 1989



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Appeal from the United States District Court for the District of Columbia, Civil Action No. 86-02049.

APPELLATE PANEL:

Ruth B. Ginsburg, Starr and Sentelle, Circuit Judges. Opinion for the Court filed by Circuit Judge Starr.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STARR

This is an appeal mounted by a former foreign service officer from a judgment of the District Court upholding a decision of the Foreign Service Grievance Board. The principal issue is whether the Board acted lawfully in holding that it did not have jurisdiction to entertain the claim presented. On review, we conclude that the Board departed without reasoned explanation from its previously announced understanding of the scope of its jurisdiction. I

Francis S. Hall was a foreign service officer from 1960 to 1982. During the course of his State Department career, Hall served in such diverse places as Japan, Vietnam, England, Venezuela, Mexico, and Washington, D.C. His performance in these various posts was evaluated by the State Department under the provisions of the Foreign Service Act. *fn1

We summarize briefly the pertinent facts with respect to Hall's various reviews. In 1978, a Foreign Service Selection Board "low-ranked" Hall in its annual review of the relative performance of all FSOs in each salary class. *fn2 This ranking, along with all files and other material relevant to Hall's performance, was then forwarded to the Foreign Service Performance Standards Board for review. *fn3 After an independent examination of his case, the PSB designated Hall for involuntary retirement. The PSB thereupon notified Hall by letter that he had been "selected out" of the Service; it further advised him that he could appeal this determination to a Special Review Board. The letter did not mention that Hall had an alternative avenue of relief, by way of an appeal to the Foreign Service Grievance Board. 22 U.S.C. § 4131(a) (1982).

Hall thereupon brought an appeal before a Special Review Board .4 SRBs are required by their own regulations (dubbed "Precepts") to make three inquiries on appeals of selections out: (a) whether the selection out is based on prejudicially inaccurate or incomplete documentary materials; (b) whether the PSB complied with its own Precepts; and (c) whether the officer's performance was temporarily affected by factors beyond his or her control that are not likely to recur. 3 Foreign Affairs Manual Circular No. 753 (June 9, 1978); Record of Proceedings at 194.

After hearing testimony from Hall and two other witnesses, and considering Hall's performance file and written submissions, the SRB upheld the PSB's determination. See 1979 Special Review Board Decision on the Appeal of Francis S. Hall; Supplemental Appendix at 1; 22 U.S.C. § 4008(a) (providing that "administrative review of the performance of the member . . . shall include an opportunity for the member to be heard"). The SRB was impressed, however, with Hall's dedication and integrity, and therefore recommended that his selection out be deferred so that he would be eligible for a retirement annuity. See SRB Decision at 5; S.A. at 5. The Director General agreed with the SRB's recommendation, and Hall's retirement was, in consequence, postponed until mid-1982.

Subsequently, Hall filed several grievances with the Foreign Service Grievance Board ("FSGB" or "Board"),5 including the issue of his selection out.6 Hall challenged his involuntary retirement on a number of grounds, including claims that the SRB considered prejudicial information not properly before it; that the SRB failed to follow its own Precepts; and that he had not been given proper notice of his right to appeal to the FSGB. The FSGB did not reach the merits of Hall's claim, however, as it declined to accept jurisdiction over the grievance. Quoting section 1109(a) of the Foreign Service Act, the FSGB stated:

"A grievant may not file a grievance with the if the grievant has formally requested, prior to filing a grievance, that the matter or matters which are the basis of the grievance be considered or resolved and relief be provided under another provision of law, regulation or Executive Order . . . and the matter has been carried to final decision under such provision on its merits or is still under consideration."

FSGB Decision at 5-6 (quoting 22 U.S.C. § 4139(a) (1982)); S.A. at 11-12. According to the FSGB, Hall was "endeavoring to emphasize a different interpretation of essentially the same facts presented to the SRB in 1979, a proceeding in which he unsuccessfully appealed his selection out." FSGB Decision at 5; S.A. at 11. Since the SRB proceeding was carried to final decision, see SRB Precepts, 3 FAMC No. 753, § G(2) (June 9, 1978); R.O.P. at 200, the FSGB concluded that "grievant's selection out . . . is not a matter properly before this Board." FSGB Decision at 5; S.A. at 11.

Hall sought review of the FSGB's decision in the United States District Court. 22 U.S.C. § 4140 (1982). The District Court affirmed the FSGB's jurisdictional determination to the extent that the issues presented to the FSGB were the same as those presented to the SRB. However, the court apparently interpreted the term "matter or matters" in 22 U.S.C. 4139(a) differently than had the FSGB. While the Board viewed "matter or matters" as being, broadly, Hall's selection out, the District Court viewed the phrase as referring to individual claims advanced by Hall regarding his selection out. Despite the disparity in interpretations, the District Court affirmed the FSGB's decision in all respects. See Hall v. Shultz, No. 86-2049, mem. op. (D.D.C. Jan. 5, 1988); Joint Appendix at 161. This appeal followed. II

Hall's central claim is that the FSGB erred in declining to accept jurisdiction over his grievance. In particular, he alleges that the Board unreasonably interpreted "matter or matters" in 22 U.S.C. 4139(a) to mean Hall's selection out. To evaluate the FSGB's interpretation, we would normally apply the familiar principles of 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 its progeny. Here, however, Hall has effectively pretermitted our traditional Chevron inquiry by his assertion that the FSGB has departed, without reasoned explanation, from its previously-announced interpretation of the "matter or matters" language. As a threshold issue, ...


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