Fritch v. U.S. Department of State

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
Paul L. Fritch, )
)
Plaintiff, )
)
v. ) Civil No. 15-cv-00430 (APM)
)
U.S. Department of State, )
)
Defendant. )
_________________________________________)
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Plaintiff Paul L. Fritch is a career Foreign Service Officer employed since 1991 with
Defendant U.S. Department of State (“State”). In the summer of 2007, Plaintiff was “seconded”
from State to serve as the Director of the Office of the Secretary General for the Organization for
Security and Cooperation in Europe (“OSCE”). To effectuate the transition to his new position,
Plaintiff was “separated and transferred” from State to the OSCE. Plaintiff remained at the OSCE
until the spring of 2012, whereupon he returned to State.
Plaintiff’s secondment, however, resulted in the loss of critical benefits that he otherwise
would have enjoyed had he continued working at State. Most significantly, his years at the OSCE
did not count towards promotion eligibility within State. He also did not accrue certain types of
leave time and was not permitted to make contributions to his Thrift Savings Plan. Plaintiff also
paid more than $140,000 for his own housing while living in Europe.
After Plaintiff returned to State, he filed a grievance challenging these adverse impacts.
State rejected his grievance, finding that Plaintiff’s classification as “separated and transferred”
from the agency rendered him ineligible for those benefits. Plaintiff appealed that decision to the
Foreign Service Grievance Board (“FSGB” or “the Board”). The FSGB affirmed the agency’s
denial of his grievance and subsequently rejected Plaintiff’s request for reconsideration, in part
because it was based on arguments that Plaintiff had not raised during his grievance or his appeal.
Plaintiff brought this suit under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq.,
challenging the FSGB’s rulings. His overarching contention is that the denial of benefits was
contrary to State’s own policies and regulations and thus was an arbitrary and capricious agency
action. State defends the FSGB’s ruling as rationally based on the record evidence and further
asserts that this court lacks jurisdiction to review the Board’s refusal to consider arguments raised
for the first time on reconsideration. Plaintiff, for his part, counters that the Board in fact has
considered arguments raised by other grievants for the first time on reconsideration and that, as a
result, its refusal to consider such arguments in his case was arbitrary and capricious.
This matter is before the court on the parties’ cross-motions for partial summary judgment. 1
The court concludes that it lacks jurisdiction to review those legal arguments that Plaintiff raised
with the FSGB for the first time in his request for reconsideration. Additionally, the court finds
that the Board did not arbitrarily and capriciously apply its own discretionary procedural rule—
namely, that it will not consider legal arguments raised for the first time on requests for
reconsideration—to Plaintiff’s request. Finally, the court concludes that the Board’s decision
denying Plaintiff’s appeal on the merits was not arbitrary and capricious. Accordingly, the court
1
This matter is before the court on partial motions for summary judgment because the parties’ motions concern only
Counts I and II of Plaintiff’s four-count Amended Complaint. After the FSGB affirmed the denial of Plaintiff’s initial
grievance, Plaintiff filed a second grievance with State. Counts I and II relate to the denial of Plaintiff’s initial
grievance. Counts III and IV, on the other hand, concern the denial of Plaintiff’s second grievance. See Am. Compl.,
ECF No. 21, ¶¶ 32-38, 44-49. The parties agreed that their initial round of briefing would address only Counts I and
II. See Joint Status Report, ECF No. 22. Therefore, Counts III and IV, and any issues pertaining to the second
grievance, are not presently before the court.
2
grants Defendant’s Motion for Partial Summary Judgment and denies Plaintiff’s Cross-Motion for
Partial Summary Judgment.
II. BACKGROUND
A. Factual Background
1. Plaintiff’s Transfer to the Organization for Security and Cooperation in
Europe
Plaintiff is a career Foreign Service Officer employed since 1991 by Defendant
U.S. Department of State (“State”). Def.’s Mem. in Supp. of Mot. for Partial Summ. J., ECF No.
24 [hereinafter Def.’s Mot.], at 2; Pl.’s Opp’n to Def.’s Mot. for Partial Summ. J., ECF No. 31
[hereinafter Pl.’s Opp’n], at 5. In April 2007, State’s Bureau of Human Resources circulated a
Vacancy Announcement soliciting applications from agency employees interested in serving as
Director of the Office of the Secretary General for the Organization for Security and Cooperation
in Europe (“OSCE”). Def.’s Mot. at 2; Pl.’s Opp’n at 7. Plaintiff submitted an application and,
on May 7, 2007, the OSCE selected him for the position. Def.’s Mot. at 2–3; Pl.’s Opp’n at 7.
State approved Plaintiff’s transfer and agreed to “second” him to the OSCE for two years with the
possibility of a one-year extension. Def.’s Mot. at 3; Pl.’s Opp’n at 7.
Plaintiff and State’s Human Resources staff worked together to effectuate his transfer to
the OSCE. Def.’s Mot. at 3. On July 21, 2007, State officially transferred Plaintiff to the OSCE
pursuant to a “separation and transfer” agreement whereby Plaintiff was formally separated from
State while working at the OSCE but retained the right to resume his employment at the conclusion
of his secondment. Def.’s Mot. at 3; Pl.’s Opp’n at 7–8. Importantly, Plaintiff was not “detailed”
to work at OSCE. Unlike a separated-and-transferred employee, a detailed State employee remains
employed by State while working at another organization and continues to accrue benefits,
including promotion eligibility, as if he was working at State. Def.’s Mot. at 3. On the other hand,
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employees that are separated and transferred from State, like Plaintiff, are no longer employed by
State, but retain unilateral reemployment rights upon the conclusion of their tenure with the
secondment organization. Id.
Shortly after he started work at the OSCE, Plaintiff repeatedly attempted to confirm that,
despite being separated and transferred, he remained eligible for promotion consideration. Def.’s
Mot. at 5. Plaintiff asserted that he remained eligible for promotion because he received an
“Information Sheet” with his separation and transfer agreement, which stated that “[State]
employees are entitled to be considered, while employed by the OSCE, [for promotions] in
accordance with the governing precepts.” Def.’s Mot. at 3 (emphasis added). State ultimately
informed Plaintiff, however, that its internal policies—known as the Governing Precepts—
disqualified him from promotion consideration while he was working at the OSCE. Id.; Pl.’s
Opp’n at 8. Despite being fully aware of State’s position, Plaintiff twice extended his secondment
at the OSCE before resuming work at State in June 2012. Def.’s Mot. at 5.
2. Plaintiff’s Agency-Level Grievance
Upon returning to State, Plaintiff, proceeding pro se, filed an agency-level grievance
challenging the loss of benefits during his time at the OSCE. 2 Id. at 6; Pl.’s Opp’n. at 16; Admin.
Rec. Part 3, ECF No. 35-4 [hereinafter A.R. Pt. 3], at 1–19. Specifically, Plaintiff asserted before
the agency that he had remained eligible for benefits, including promotion eligibility, while he
worked at the OSCE because:
• “[T]he Separation Agreement was a binding contract that imposed obligations on
both parties” and that the Information Sheet, as incorporated into the Separation
2
Under State’s policies, Plaintiff could not challenge the loss of benefits while he remained separated from State.
Def.’s Mot. at 6. Accordingly, when Plaintiff returned to State in 2012, he timely filed a grievance. Id.
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Agreement, contained language “guarantee[ing] . . . promotion eligibility,” which
superseded the Governing Precepts;
• State had “broad discretion to treat any given assignment as a ‘detail’ or a
‘transfer’” and that the “final decision to opt for a separation/transfer was taken
with the sole purpose of processing the assignment as quickly and efficiently as
possible”;
• State had not, as it contended, made a “conscious policy choice” to “exclud[e] . . .
[transferred] employees from consideration [for] promotion” in order to discourage
State employees from “serving in lengthy assignments with international
organizations.” To the contrary, State actually “actively encourage[d] qualified
employees to serve in key positions within [international organizations], and
lobbie[d] on behalf [of its employees for those positions]”;
• State could have “resolved” the “contradiction between [the] Separation Agreement
and the [Governing Precepts]” in order to “mitigate” Plaintiff’s damages; and
• Plaintiff could “reasonably have expected to be competitive for a promotion”
during his time at OSCE.
See A.R. Pt. 3 at 25, 28–31.
State denied Plaintiff’s grievance on November 20, 2016. Def.’s Mot at 6. With respect
to Plaintiff’s main argument, the agency concluded that the Information Sheet did not create any
contractual obligations between State and Plaintiff, much less an obligation negating the
Governing Precepts’ clear exclusion of Plaintiff from promotion consideration. A.R. Pt. 3 at 197–
201. The agency also rejected Plaintiff’s other arguments. See id.
3. Plaintiff’s Appeal to the Foreign Services Grievance Board
On January 10, 2013, Plaintiff, continuing to proceed pro se, appealed State’s decision to
the Foreign Services Grievance Board (“FSGB” or “the Board”). Def.’s Mot. at 7; Pl.’s Opp’n at
17; A.R. Pt. 3 at 1–32. In his appeal, Plaintiff reiterated and expanded upon the arguments outlined
above. He also, for the first time, argued that:
• The paperwork effectuating his transfer—a form SF-50—actually reflected that he
had been assigned not to the OSCE, but to the Multinational Force & Observers
(“MFO”), an independent international organization with peacekeeping
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responsibilities in the Sinai Peninsula. According to Plaintiff, MFO members “do
remain promotion-eligible while in separation/transfer (secondment) status,” and
that, as a result, the Department had purposefully “transferred” him to the MFO,
even though he technically worked at the OSCE, in order to ensure that he was
assigned to a “status explicitly eligible for promotion consideration under [the
Governing Precepts]”; and
• The “Grievance Staff, in its analysis of the case, disregarded duly submitted
evidence that did not conform to its own ‘theory of the case’ . . . flatly
misrepresented objective, easily verifiable facts critical to a fair, unbiased
resolution of the case . . . sought any interpretation . . . that might justify the denial
of the grievance . . . [and] thus failed to adhere to basic principles of due process.”
See A.R. Pt. 3 at 15–17.
While on appeal, Plaintiff received certain disclosures from the agency that prompted him
to file a Supplemental Submission to the Board on February 28, 2013. See Def.’s Mot. at 7–8;
Pl.’s Opp’n at 17; Admin. Rec. Pt. 4, ECF No. 36 [hereinafter A.R. Pt. 4], at 45–58. In his
Supplemental Submission, Plaintiff advanced the following additional contentions:
• A “newly disclosed” Standard Operating Procedure (SOP A-10) “clearly
indicate[d] that assignments of [employees] to the OSCE should be processed as
details . . . rather than separations/transfers” and that, as a result, State’s decision to
separate and transfer Plaintiff “was not merely a discretionary error, but rather a
clear violation of then-applicable Department policy”; and
• State “lacked the legal authority to process [his] assignment as a
separation/transfer” under 5 C.F.R. § 352.304 because “the OSCE was not included
on the Department’s ‘List of International Organizations’” approved for assignment
of federal employees. Under that regulation, Plaintiff argued, State employees
could be separated and transferred only to organizations designated on that list and
that all other employee transfer arrangements, including transfers to the OSCE,
were required to be processed as details.
See A.R. Pt. 4 at 47–48 (emphasis omitted).
On March 19, 2015, the FSGB denied Plaintiff’s appeal. Def.’s Mot at 8; Pl.’s Opp’n at
17; Admin. Rec. Pt. 6, ECF No. 38 [hereinafter A.R. Pt. 6], at 43–78. In its decision, the FSGB
closely examined Plaintiff’s arguments and found that State had made several “regrettable and
sloppy” errors during the grievance process. Namely, State had mistakenly determined that it was
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standard protocol to separate and transfer employees to organizations like the OSCE, when no
such standard protocol existed, and that the Information Sheet was not incorporated into the
Separation Agreement, when in fact it was incorporated by reference. See A.R. Pt. 6 at 73–74.
Notwithstanding these deficiencies, the Board found that State had not acted contrary to applicable
regulations or policy either in effectuating Plaintiff’s transfer or by failing to consider him for
promotion during his tenure at the OSCE. Specifically, the Board ruled that:
• The Information Sheet did not give rise to any contractual obligations between
Plaintiff and State;
• State did not violate its own internal policy which, as demonstrated by the
Governing Precepts, dictated that federal employees assigned to international
organizations other than the MFO were ineligible for promotion consideration;
• The fact that Plaintiff’s transfer paperwork indicated that he had been assigned to
the MFO, instead of the OSCE, was an administrative error and did not evince an
intent to afford Plaintiff the same benefits as those employees seconded to the
MFO;
• State had legal authority under 5 C.F.R. § 352.304 to transfer Plaintiff to the OSCE,
even though the OSCE had not yet been formally designated as an eligible foreign
organization, because State could have properly designated the OSCE—and in fact
later did properly designate it—as a qualifying organization under the regulations;
and,
• The grievance-level errors did not establish a “nefarious motive” sufficient to
constitute a due process violation.
See id. at 64–77.
4. Plaintiff’s Request for Reconsideration
Plaintiff then filed a Request for Reconsideration with the FSGB on April 16, 2014. Def.’s
Mot. at 9; Pl.’s Opp’n at 17; A.R. Pt. 6 at 87–103. Notably, Plaintiff retained a lawyer to file his
Request for Reconsideration. A.R. Pt. 6 at 104.
With the assistance of counsel, Plaintiff argued that the Board should reconsider its
decision because it had (1) failed to adequately address whether State had violated its own Standard
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Operating Procedure—SOP A-10—by separating and transferring Plaintiff to the OSCE, and
(2) given “undue weight to opinions” of staff when considering whether State had intentionally
transferred Plaintiff to MFO status such that he could remain eligible for promotion consideration.
Id at 100–103.
In addition to challenging the Board’s disposition of arguments previously raised, Plaintiff
raised a number of new arguments for the Board’s consideration. They included that:
• The McDonnell Douglas burden-shifting framework applied to his appeal and, as a
result, the Board committed legal error by refusing to shift the evidentiary burden
from the Plaintiff to State in order to address “the gaps in the Department’s
evidence”;
• State had cited, and the FSGB had applied, the wrong version of 5 C.F.R. § 352.304
when analyzing Plaintiff’s claim that State lacked the legal authority to effectuate
his transfer to a non-designated foreign organization. According to Plaintiff, the
FSGB erroneously applied the version of section 352.304 in effect at the time of
the appeal in 2013, as opposed to the version in effect when Plaintiff was separated
and transferred to OSCE in 2007. Under the 2007 version of section 352.304,
Plaintiff argued, only the Office of Personnel Management—and not State itself—
could provide the “necessary” approval for an employee “secondment to a non-
listed organization,” such as the OSCE. Because the Office of Personnel
Management had not approved Plaintiff’s transfer to the OSCE, his assignment
only could have been properly effectuated as a detail, thus preserving his promotion
eligibility; and
• State’s decision denying him promotion consideration conflicted with 5 C.F.R.
§ 352.314(a), which provides that “[e]ach agency shall consider each employee
detailed or transferred to an international organization for all promotions for which
he would be considered were he not absent.” Plaintiff argued that section 352.314
had controlling force over the Governing Precepts, upon which State erroneously
had relied to deny Plaintiff promotion consideration.
See id. at 87–88, 90–93, 94, 97 (emphasis omitted).
The FSGB denied Plaintiff’s Request for Reconsideration in its entirety. With respect to
the arguments that Plaintiff previously had raised before the Board, the Board concluded that it
had adequately considered the merits of those arguments and that Plaintiff had offered no valid
basis—either through the presentation of new evidence or demonstration of a change in
8
circumstances—to warrant reconsideration. Def.’s Mot. at 10; Pl.’s Opp’n at 23; A.R. Pt. 6, at
268–278. The Board also refused to consider the three arguments that Plaintiff raised for the first
time in his Request for Reconsideration because Plaintiff “could have, but failed to raise [those
arguments] earl[ier] in his appeal either at the agency level or before [the Board].” A.R. Pt. 6 at
273.
B. Procedural Background
On March 24, 2015, Plaintiff filed suit in this court challenging the FSGB’s rulings. He
claimed that the FSGB’s decisions affirming the denial of his grievance and denying his Request
for Reconsideration were arbitrary and capricious, in violation of the Administrative Procedure
Act, 5 U.S.C. §§ 701, et seq. See Am. Compl., ¶¶ 39–46. The parties then filed motions for partial
summary judgment based solely on the administrative record, see supra, n.1, to which the court
now turns.
III. LEGAL STANDARD
Cross-motions for summary judgment ordinarily are reviewed under the standard set forth
in Federal Rule of Civil Procedure 56, which requires a court to grant summary judgment when
the pleadings and the evidence demonstrate that “there is no genuine issue as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). However, in
cases, such as this one, that involve the review of a final agency action, the Rule 56 standard does
not apply. See Stuttering Found. of Amer. v. Springer, 498 F. Supp. 2d 203, 207 (D.D.C. 2007).
Instead, “the district judge sits as an appellate tribunal” and “[t]he ‘entire case’ on review is a
question of law.” Am. Biosci. Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (citing
cases). “[T]he court’s review is limited to the administrative record,” Fund for Animals v. Babbitt,
903 F. Supp. 96, 105 (D.D.C. 1995) (citing Camp v. Pitts, 411 U.S. 138, 142 (1973)), and its role
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is limited to “determin[ing] whether or not as a matter of law the evidence in the administrative
record permitted the agency to make the decision it did,” see Sierra Club v. Mainella, 459 F. Supp.
2d 76, 90 (D.D.C. 2006) (internal quotation marks omitted).
Plaintiff argues that the FSGB’s decisions were “arbitrary [and] capricious.” 5 U.S.C.
§ 706(2)(A). Application of the “arbitrary and capricious” standard requires courts to determine
whether the action at issue was based on “reasoned analysis.” Motor Vehicle Mfrs. Ass’n of U.S.
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 56–57 (1983). Generally, an agency has
engaged in reasoned analysis when the administrative record indicates it “examine[d] the relevant
data and articulate[d] a satisfactory explanation for its action including a ‘rational connection
between the facts found and the choice made.’” Id. at 43 (quoting Burlington Truck Lines, Inc. v.
United States, 371 U.S. 156, 168 (1962)).
Where, however, the administrative record indicates that an agency “relied on factors
which Congress has not intended it to consider, entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that runs counter to the evidence before the
agency, or [made a decision that] is so implausible that it could not be ascribed to a difference in
view or the product of agency expertise,” it has acted in an arbitrary and capricious manner. Id.
This standard is not “particularly demanding,” Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C.
Cir. 1993), and a reviewing court may “uphold a decision of less than ideal clarity if the agency’s
path may reasonably be discerned,” Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S.
281, 286 (1974). A court, however, should not “supply a reasoned basis for the agency’s action
that the agency itself has not given,” State Farm, 463 U.S. at 43 (internal quotation marks omitted).
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IV. DISCUSSION
As factual recitation above shows, Plaintiff raised a raft of arguments before State and the
FSGB in support of his central contention that the agency wrongly deprived him of promotion
consideration and other benefits while he was assigned to the OSCE. Plaintiff in this case has
pared his arguments down to five.
First, Plaintiff contends that the Board applied the wrong version of 5 C.F.R. § 352.304
when ruling that State had the legal authority to assign him to the OSCE by separation and transfer
without the prior approval of the Office of Personnel Management. See Pl.’s Opp’n at 29–33.
Instead of applying the version in effect when the transfer occurred, the Board wrongly applied
the version in effect at the time of Plaintiff’s appeal. Second, he claims that the Board’s decision
conflicts with 5 C.F.R. § 352.314, which requires agencies to “consider each employee detailed or
transferred to an international organization for all promotions for which he would be considered
were he not absent.” See id. at 34–37. Third, he argues that the agency’s admitted error on the
SF-50 form of assigning him to the Multinational Force & Observers (“MFO”), instead of the
OSCE, “shift[ed] the burden of proof to the Department” to show that it would have taken the
same action with respect to Plaintiff even in the absence of the error. See id. at 37–40. Fourth,
Plaintiff contends that the Board’s decision not to address his Request for Reconsideration, in
which he argued for the first time that the Board had applied the incorrect regulation, was
inconsistent with its prior practice to consider such arguments. See id. at 46–50. And, fifth, he
challenges as arbitrary and capricious the Board’s conclusion that the SF-50’s erroneous
designation of Plaintiff to the MFO was an administrative error which did not demonstrate, as
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Plaintiff had argued, that State actually intended to detail him, rather than separate and transfer
him, to the OSCE. See id. at 40–43.
Defendant asserts that all but one of these arguments is nonreviewable. Specifically,
Defendant contends that the court lacks jurisdiction to review the Board’s discretionary decision
not to grant Plaintiff’s Request for Reconsideration because Plaintiff could have raised the
arguments therein in his initial appeal. See Def.’s Mot. at 18–21; Def.’s Reply in Supp. of Partial
Mot. for Summ. J., ECF No. 33 [hereinafter Def.’s Reply], at 8–11. Thus, according to Defendant,
the court cannot review Plaintiff’s first four arguments. Id. As to Plaintiff’s fifth argument—that
the Board’s decision with respect to the SF-50 was arbitrary and capricious—Defendant defends
that ruling as rationally based on the evidence presented. Def.’s Mot. at 14–16; Def.’s Reply at 8–
11. The court has carefully reviewed the record and agrees with Defendant that Plaintiff’s
arguments are without merit.
A. Plaintiff’s First Three Arguments Are Not Reviewable
1. The Court Lacks Jurisdiction to Review Those Arguments that the FSGB
Determined Were Raised for the First Time on Reconsideration
Our Court of Appeals has made clear that: “An agency’s denial of a petition, or a request,
for reconsideration is not itself subject to judicial review if the petition alleges only material error
in the agency’s original decision.” Sendra Corp. v. Magaw, 111 F.3d 162, 166 (D.C. Cir. 1997)
(internal quotation marks omitted); accord Schoenbohm v. FCC, 204 F.3d 243, 245 (D.C. Cir.
2000) (holding that the court lacks jurisdiction to review an agency’s denial of a petition for
reconsideration “unless the request for reconsideration was based on new evidence or changed
circumstances”); Canady v. SEC, 230 F.3d 362, 364 (D.C. Cir. 2000) (“Denial of agency
reconsideration is generally nonreviewable unless the request for reconsideration was based on
new evidence or changed circumstances.” (internal quotation marks omitted)). That rule is based
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on the Supreme Court’s decision in ICC v. Brotherhood of Locomotive Engineers (BLE), in which
the Court held that, “where a party petitions an agency for reconsideration on the ground of
material error, i.e., on the same record that was before the agency when it rendered its original
decision, an order which merely denies rehearing of . . . [the prior] order is not itself reviewable.”
482 U.S. 270, 280 (1987). “That is so, the Court said, even if the agency order refusing
reconsideration discussed the merits of the [petitioners’] claims at length, as long as the agency’s
formal disposition is to deny reconsideration, and . . . it makes no alteration in the underlying
order.” Vill. of Barrington, III v. Surface Transp. Bd., 758 F.3d 326, 328 (D.C. Cir. 2014) (quoting
BLE, 482 U.S. at 280). Nonreviewability in this context means that the court lacks jurisdiction.
See Entravision Holdings, LLC v. FCC, 202 F.3d 311, 312 n.** (D.C. Cir. 2000).
It is clear to this court, as it was to the Board, that Plaintiff raised the first three arguments
identified above—which concern (1) the application of 5 C.F.R. § 352.304, (2) the application of
5 C.F.R. § 352.314, and (3) shifting the burden of proof to State because of certain errors—for
the first time in his Request for Reconsideration. There is no mention whatsoever of those
contentions in either the agency or appellate record. And, aside from refusing to consider those
arguments, the Board’s order denying reconsideration simply reaffirmed its original ruling without
modification, see A.R. Pt. 6 at 274, 277, and is thus “not itself reviewable.” See BLE, 482 U.S. at
280. Accordingly, the court lacks jurisdiction to consider those arguments.
Plaintiff attempts to avoid the jurisdictional bar articulated in BLE and Schoenbohm by
arguing that “[t]he principle at issue in Schoenbohm—rejecting judicial review under the APA
following a denial of reconsideration—has never been applied after the FSGB denies
reconsideration of a request citing legal error.” Pl.’s Reply in Supp. of Cross-Mot. for Summ. J.,
ECF No. 34 [hereinafter Pl.’s Reply], at 8. True, as Plaintiff contends, there appears to be no
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appellate decision from this circuit squarely on point. However, district courts are regularly tasked
with applying existing precedents to new contexts. Here, the court holds that the logic of
Schoenbohm applies with equal force to preclude review of the FSGB’s decision in this case as it
did to preclude agency review in Schoenbohm itself.
The Court of Appeals has, at least indirectly, applied Schoenbohm to hold that an FSGB
decision denying reconsideration is unreviewable. In Egan v. United States Agency for
International Development, the Court of Appeals faced the question whether the FSGB’s denial of
a plaintiff’s second request for reconsideration was reviewable. See 381 F.3d 1 (D.C. Cir. 2014).
The court held that it lacked jurisdiction to review plaintiff’s challenge because an agency’s
“‘denial of successive requests for reconsideration of the same decision are not’” reviewable. Id.
at 5 (quoting Sendra Corp., 111 F.3d at 167). Although the court primarily relied on Sendra
Corporation, it also cited Schoenbohm for the principle that “an agency’s denial of a request for
reconsideration ‘is generally nonreviewable unless the request . . . was based on new evidence or
changed circumstances.’” Id. (quoting Schoenbohm, 204 F.3d at 245, 250). Although Egan
admittedly concerned the FSGB’s denial of a second request for reconsideration, whereas this case
involves the denial of an initial request, Plaintiff has not articulated any reason why the Court of
Appeals would not apply the rule of Schoebohm to these circumstances. Accordingly, the court
finds that Schoenbohm applies equally in this context and forecloses review of the Board’s decision
to deny requests for reconsideration alleging, as here, material error in the Board’s original
decision.
Plaintiff also cites two district court cases—United States Department of State v. Coombs,
417 F. Supp. 2d 10 (D.D.C. 2006), and Ehrman v. United States, 429 F. Supp. 2d 61 (D.D.C.
2006)—to avoid the jurisdictional bar. See Pl.’s Reply at 8–10. Plaintiff argues that the courts in
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both cases elected to review the Board’s decision to deny the plaintiffs’ appeals even though the
Board had already denied their requests for reconsideration. Id. Those cases are inapposite,
however. Putting aside the fact that the decision in Coombs was subsequently reversed and
vacated, neither case concerned, or even addressed beyond mere mention, the FSGB’s decision to
deny the requests for reconsideration. In fact, the plaintiffs in both cases—unlike Plaintiff here—
first raised the arguments before the agency and the Board prior to presenting them to the district
court. See Coombs, 417 F. Supp. 2d at 12–13; Ehrman, 429 F. Supp. 2d at 70. Thus, neither
Coombs nor Ehrman supports Plaintiff’s assertion that this court can consider the arguments raised
for the first time in his Request for Reconsideration when the FSGB itself declined to do so.
2. Plaintiff Did Not Preserve the Precise Issues He Now Advances Concerning
5 C.F.R. §§ 352.304 and 352.314
Plaintiff also makes another argument in an effort to preserve review of his first and second
arguments. He contends that Schoenbohm is inapplicable, because he, in fact, raised the arguments
he now advances concerning 5 C.F.R. §§ 352.304 and 352.314 before the Board on appeal, not for
the first time in his Request for Reconsideration. See Pl.’s Reply at 11–25. The court disagrees.
The Court of Appeals has consistently held that that courts “are bound to adhere to the hard
and fast rule of administrative law, rooted in simple fairness, that issues not raised before an agency
are waived and will not be considered by a court on review.” Coburn v. McHugh, 679 F.3d 924,
929 (D.C. Cir. 2012) (internal quotation marks omitted). This rule “holds special force where, as
here, an appeal follows adversarial administrative proceedings in which parties are expected to
present issues material to their case. In that setting, the rationale of requiring issue exhaustion is
at its greatest[.]” Wallaesa v. FAA, 824 F.3d 1071, 1078 (D.C. Cir. 2016) (internal quotation marks
omitted).
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Wallaesa is instructive. There, the plaintiff—an airline passenger—petitioned for review
of a sanction that the Federal Aviation Administration (“FAA”) had imposed on him arising out
of his disruptive and abusive behavior during a flight. Wallaesa, 824 F.3d at 1074–76. The
plaintiff asserted on appeal that the FAA lacked the authority to regulate the type of non-violent
passenger conduct at issue in his case. The Court of Appeals found that the plaintiff had preserved
that argument for review because he had asserted before the agency that the regulation at issue
“applie[d] to requirements of Pilots and Aircraft to Conform to Safety Standards, [but] not to
passengers.” Id. (internal quotation marks omitted). The court, however, concluded that the
plaintiff had failed to preserve “several other issues” he had raised for the first time in his petition
for review, including that the regulation at issue was invalid because it was unconstitutionally
vague and “promulgated without adequate notice and comment.” Id. at 1078 n. 5. The court
explained: “Raising new arguments is one thing—raising new issues is entirely another.” Id. at
1078.
Admittedly, the line separating a preserved new argument from an unpreserved new issue
is not always a clear one. The Court of Appeals, however, has offered some guidance. For
example, the court has explained that the waiver analysis centers on whether a party raised the
“specific argument” presented to the district court, and “not merely the same general legal issue,”
before the agency. See Koretoff v. Vilsack, 707 F.3d 394, 398 (D.C. Cir. 2013). Put another way,
there must be a demonstrable “congruity . . . between a party’s arguments before an administrative
agency and [a federal] court” to support judicial review. Id. (internal quotation marks omitted).
Applying Koretoff, the court finds that Plaintiff did not raise before the FSGB the issues
he now advances in this court concerning the application of 5 C.F.R. §§ 352.304 and 352.314.
Thus, the court declines to consider those unpreserved issues.
16
With respect to section 353.304, Plaintiff describes his argument before the Board as
follows: “[W]ith his Supplemental Submission, [Plaintiff] submitted to the Board documents
indicating that OSCE had not been added to the list of approved international organizations until
after his assignment, and that the Department therefore had no legal basis to separate/transfer an
employee to the [OSCE].” Pl.’s Reply at 13–14. In denying that argument on appeal, the Board
applied the version of section 353.304 that went into effect on December 1, 2008, after Plaintiff
was assigned to the OSCE. Under the later version of the regulation, State had the authority to
transfer an employee to an organization if (a) the organization was one that “the Department of
State ha[d] designated as an international organization,” or (b) “the organization concerned could
[have been] designated as [a covered] international organization” under the relevant statues.
5 C.F.R. §§ 352.304(a), (b) (2008). Plaintiff’s argument before the Board, even as he describes,
was that the OSCE did not meet either criteria. The Board concluded otherwise, holding that the
OSCE qualified as an international organization that “could be” designated under section
352.304(b) and that, as a result, State did have the legal authority to effectuate Plaintiff’s transfer
at the time. A.R. Pt. 6 at 69–77.
That is not, however, the “specific argument” that Plaintiff raises here. Before this court
Plaintiff contends that the FSGB committed error by applying the wrong version of section
352.304. He argues that the Board should have applied the version in effect when his transfer
occurred in 2007, instead of the version that was in effect at the time of appeal. Under the earlier
version, State lacked the authority to unilaterally determine whether an organization that was not
already designated and pre-approved under the regulations nonetheless could have been
designated. Instead, it had to—but did not in his case—first obtain the approval of the Office of
Personnel Management before transferring any employee to a non-designated organization. See
17
5 C.F.R. § 353.304 (2001). Plaintiff did not, however, raise this “specific argument” before the
FSGB. Koretoff, 707 F.3d at 398. At most, he raised the “same general legal issue”—whether the
OSCE was an eligible international organization under section 352.304—before the agency. Id.
But Plaintiff simply never made the argument that he does now before the Board.
The same is true as to his argument concerning section 352.314. Plaintiff never once even
mentioned section 352.314 before the Board. See Pl.’s Reply at 21 (acknowledging that “the
Department” raised section 352.314 in response to his Supplemental Submission). Instead, he
generally argued that his transfer agreement required State to consider him for promotion while he
worked at the OSCE. See id. at 22 (admitting that he “had argued that the separation/transfer
agreement . . . [including] an ‘Information Sheet’ . . . explicitly stat[ed] that he was eligible for
promotion during his assignment to the OSCE”). Again, while Plaintiff may have raised the
“general legal issue” of whether State was compelled to consider him for promotion even while
separated to the OSCE, he never raised the “specific argument” that State was so compelled by
section 352.314. See Koretoff, 707 F.3d at 398.
Accordingly, the court finds that Plaintiff failed to preserve both arguments concerning the
application of 5 C.F.R. §§ 352.304 and 352.314 and the court will not consider them now. Coburn,
679 F.3d at 931.
B. Plaintiff’s Fourth Argument
Plaintiff next argues that the Board’s refusal to consider the arguments he raised for the
first time on reconsideration was arbitrary and capricious because “the Board failed to reconcile
its rejection of [his] regulatory arguments with its treatment of previous reconsideration requests.”
Pl.’s Opp’n at 46. In other words, Plaintiff believes that the Board treated him differently than
others who, in similar circumstances, received consideration of their newly raised arguments.
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Defendant contends that the Board’s decision to apply its discretionary rule to decline review of
Plaintiff’s Request for Reconsideration is nonreviewable. The court disagrees. Because Plaintiff’s
argument, strictly speaking, does not assert that the Board committed a “‘material error’ in [its]
original decision,” Sendra Corp., 111 F.3d at 166, but rather asserts disparate treatment when
compared to its earlier decisions, the court has jurisdiction to review the Board’s decision on that
narrow ground, see Jicarilla Apache Nation v. U.S. Dep’t of Interior, 613 F.3d 1112, 1120 (D.C.
Cir. 2010) (addressing argument that an agency’s decision was “arbitrary and capricious because
[the agency] failed to provide a reasoned explanation for departing from precedent”).
Plaintiff cites four prior Board decisions that he contends demonstrate that “[t]he Board
has not previously rejected allegations of illegality,” or a clear error of law, “on motions to
reconsider.” Pl.’s Opp’n at 47–49. They are: (1) FSGB 2014-007R (Dec. 17, 2014), see Pl.’s
Opp’n, Ex. C, ECF No. 31-3 [hereinafter 2014-007R]; (2) FSGB 2011-054 (May 30, 2014), see
Pl.’s Opp’n, Ex. D, ECF No. 31-4 [hereinafter 2011-054]; (3) FSGB No. 2006-11 (Aug. 22, 2016),
see Pl.’s Opp’n, Ex. E, ECF No. 31-5 [hereinafter 2006-11]; and, (4) FSGB 2002-40 (Sept. 30,
2003), see Pl.’s Opp’n, Ex. F., ECF No. 31-6 [hereinafter 2002-040]. Although the Board is not
required to “grapple with every last one of its precedents, no matter how distinguishable, . . .
[n]ormally, an agency must adhere to its precedents in adjudicating cases before it.” Jicarilla
Apache Nation, 613 F.3d at 1120 (citation omitted). If it does not follow its own precedent, then
the Board “must provide an adequate explanation to justify treating similarly situated parties
differently.” Burlington N. & Santa Fe Ry. Co. v. Surface Transp. Bd., 403 F.3d 771, 776 (D.C.
Cir. 2005).
The court has reviewed each of the four FSGB decisions cited by Plaintiff and concludes
that each is sufficiently distinct from the Board’s decision in the instant case. First, FSGB decision
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2002-040 simply does not support Plaintiff’s assertion of disparate treatment, as the Board in that
case also denied the request for reconsideration. See 2002-040 at 10. Second, Plaintiff’s citation
to 2011-054 is similarly unavailing, as there the Board considered only arguments that were raised
before the agency and, in fact, explicitly rejected the grievant’s attempts to raise new substantive
arguments on reconsideration. See 2011-054 at 7. Finally, the grievants in the remaining two
cases did not ask, as Plaintiff did, for the Board to reconsider its decision on the merits. Rather, in
one decision, the Board only reconsidered “the relief aspect of its [earlier] decision,” see 2014-
007R at 3, and in the other, the Board only reconsidered the threshold issue of whether the
grievant’s claim was timely filed under its regulations, see 2006-011 at 4–5. These decisions are
not sufficiently similar to Plaintiff’s request—that the Board fully reconsider its merits
determination based on arguments not previously presented, but available, at the time of appeal—
for this court to find that the Board’s application of a discretionary rule of review was arbitrary
and capricious. Accordingly, the court finds that the Board did not violate the APA by denying
Plaintiff’s Request for Reconsideration.
C. Plaintiff’s Fifth Argument
Lastly, the court reaches Plaintiff’s fifth and final argument, in which Plaintiff asserts that
the Board acted arbitrarily and capriciously by refusing to find, based on the SF-50, that State had
intentionally assigned him to the Multinational Force & Observers (“MFO”), instead of the OSCE.
See Pl.’s Opp’n at 38–39 (arguing that State assigned Fritch to “the MFO, and only the MFO” and
that there is no evidence that he was ever formally assigned to the OSCE). Plaintiff argues that
the Board’s error led it to mistakenly conclude that he was ineligible for promotion consideration.
See id. at 38 (arguing that employees assigned to the MFO “are eligible for promotion during their
assignments”).
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Under the APA, a reviewing court may “hold unlawful and set aside an agency action” it
deems to be “arbitrary [or] capricious.” 5 U.S.C. § 706(2)(A). When analyzing agency action
under the “arbitrary and capricious standard,” courts must determine whether the action at issue
was based on “reasoned analysis.” State Farm, 463 U.S. at 57; see also Republican Nat’l Comm.
v. Fed. Election Comm’n, 76 F.3d 400, 407 (D.C. Cir. 1996). Generally, an agency has engaged
in such analysis when the administrative record indicates it “examine[d] the relevant data and
articulate[d] a satisfactory explanation for its action including a rational connection between the
facts found and the choice made.” State Farm, 463 U.S. at 43.
The court has reviewed the FSGB’s decision and finds that the Board sufficiently
considered Plaintiff’s argument that, under the SF-50, he was actually assigned to the MFO, and
not the OSCE, and that the decision to reject that argument was grounded in a “rational connection
between the facts found and the choice made.” Id. Specifically, the Board found that there was
no evidence, other than the erroneous classification itself, establishing that State personnel
intended to confer upon Plaintiff those benefits afforded to the MFO staff. See A.R. Pt. 6 at 30–
31. Furthermore, as the Board held, under the governing regulations, benefits determinations are
based on the organization where the employee actually served, and not where they were mistakenly
assigned. Id. The court finds no reversible error in the Board’s analysis. 3
3
Plaintiff similarly challenges as arbitrary and capricious the Board’s failure to (1) “explain why the Department
refused to treat [him] in the same manner it had treated everyone assigned to the OSCE” by “assigning [him] to the
U.S. Embassy or Mission in [his] intended duty station, and then assigning [him] to duties at the OSCE”; and
(2) “reconcile the Department’s decision to separate/transfer [him] to the OSCE with the Board’s own finding that the
Department was not required” to do so. Pl.’s Opp’n 43–45. However, the Board expressly and sufficiently addressed
both contentions in its original decision and, accordingly, did not act arbitrarily and capriciously. See A.R. Pt. 6 at
27–30.
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IV. CONCLUSION AND ORDER
For the foregoing reasons, the court grants Defendant’s Motion for Partial Summary
Judgment in its entirety and denies Plaintiff’s Cross-Motion for Partial Summary Judgment.
Dated: October 27, 2016 Amit P. Mehta
United States District Judge
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