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02/27/87 Willene Daniels v. Charles Z. Wick

February 27, 1987

WILLENE DANIELS

v.

CHARLES Z. WICK, DIRECTOR, U.S. INFORMATION AGENCY, ET AL., APPELLANTS 1987.CDC.89 DATE DECIDED: FEBRUARY 27, 1987



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. 83-01437.

APPELLATE PANEL:

Wald, Chief Judge, Starr, Circuit Judge, and McGowan, Senior Circuit Judge.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WALD

The issue in this case is whether the Foreign Service Act of 1980 (Act) permits the foreign service grievance board to order a tenured, career appointment as a remedy for violation of the rights of a non-tenured limited term appointee. The grievance board in the case of Willene Daniels decided that tenure was the only adequate remedy for the hostile treatment Daniels had received at the hands of one of her superiors during her limited appointment, which "prevented [her] from carrying out her duties." Def. App. at 46. The Acting Director *fn1 of the United States Information Agency (USIA or agency) refused to implement the recommendation of the grievance board on the ground that the Act requires that all tenure appointments be made upon recommendation by a tenure board. The District Court disagreed with the Acting Director and ordered him to follow the grievance board's recommendation. We hold that the Act requires all career appointments to be made upon recommendation of a tenure board; accordingly, we reverse the District Court and remand the matter to it with an order to reinstate the Acting Director's veto of the grievance board's recommendation. I. BACKGROUND

A. The Foreign Service Act of 1980

The Foreign Service Act of 1980, 22 U.S.C. §§ 3901-et seq. (1982 & Supp. III 1985), provides that

(a) before receiving a career appointment in the Service, an individual shall first serve under a limited appointment as a career candidate for a trial period of service prescribed by the Secretary. During such trial period of service, the Secretary shall decide whether --

(1) to offer a career appointment to the candidate under section 3943 of this title, or

(2) to recommend to the President that the candidate be given a career appointment under section 3942 of this title.

(b) Decisions by the Secretary under subsection (a) of this section shall be based upon the recommendations of boards, established by the Secretary and composed entirely or primarily of career members of the Service, which shall evaluate the fitness and aptitude of career candidates for the work of the Service.

22 U.S.C. § 3946. The limited appointment that a career candidate must first serve "may not exceed 5 years in duration and . . . may not be extended or renewed." 22 U.S.C. § 3949.

The Act also provides a generous grievance procedure, under the aegis of the grievance board that "shall consist of no fewer than [five] members who shall be independent, distinguished citizens of the United States, well known for their integrity, who are not employees of the Department or members of the Service." 22 U.S.C. § 4135(a). The makeup of the grievance board is in marked contrast to that of tenure boards, which are "composed entirely or primarily of career members of the Service." 22 U.S.C. § 3946(b). If the grievance board finds that a grievance is meritorious, it may "direct the Department to retain in the Service a member whose separation would be in consequence of the matter by which the member is aggrieved." 22 U.S.C. § 4137 (b) (3). Additionally,

if the Board finds that the grievance is meritorious and that remedial action should be taken that relates directly to promotion or assignment of the grievant or to other remedial action not otherwise provided for in this section, or if the Board finds that the evidence before it warrants disciplinary action against any employee of the Department or member of the Service, it shall make an appropriate recommendation to the Secretary . . . . The Secretary shall implement the recommendation . . . except to the extent that . . . the Secretary rejects the recommendation . . . except to the extent that . . .the Secretary rejects the recommendation in whole or in part on the basis of a determination that implementation of the recommendation would be contrary to law . . . .

22 U.S.C. § 4137(d).

B. The Proceedings in ...


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