declaring that the "words of a statute must be read in their context and with a view to their place in the overall statutory scheme"
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The opinion
Notice: This opinion is subject to formal revision before publication in the
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided August 31, 2004
No. 03-5267
THOMAS A. EGAN,
APPELLANT
v.
UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT,
APPELLEE
–————
On Motion for Summary Affirmance
–————
Appeal from the United States District Court
for the District of Columbia
(No. 01cv2414)
–————
R. Craig Lawrence, Assistant U.S. Attorney, filed the
motion for summary affirmance for appellee. With him on
the motion were Roscoe C. Howard, Jr., U.S. Attorney, Claire
M. Whitaker, Assistant U.S. Attorney, and Osvaldo Luis
Gratacos, U.S. Agency for International Development.
Thomas A. Egan filed the opposition for appellant.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: SENTELLE, ROGERS, and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Plaintiff Thomas Egan appeals
from the district court’s grant of summary judgment in favor
of his former employer, the United States Agency for Inter-
national Development (USAID). Egan brought suit contest-
ing the Foreign Service Grievance Board’s dismissal of griev-
ances he filed after leaving the Foreign Service. Because the
district court correctly determined that Egan’s lawsuit was
untimely under the Foreign Service Act, we affirm the dis-
trict court.
I
Egan was a member of the Foreign Service and served as
an auditor in USAID’s Office of the Inspector General (OIG)
in Bangkok, Thailand during the mid-1990s. He resigned in
September 1996, alleging that his superiors had treated him
unfairly and had created a ‘‘stressful work environment TTT
within the Bangkok office.’’ Mem. from T.A. Egan to J.
Rush, Jr. (Sept. 27, 1996). Around that time he also accepted
a job in the private sector in Singapore, where he began work
on or about October 28, 1996.
On January 27, 1997, Egan filed four grievances with the
OIG, suggesting, among other things, that his resignation had
been involuntary. On March 20, 1997, the OIG rejected those
grievances, in part because it found that Egan had voluntarily
resigned. It made that finding based on the fact that Egan
had chosen the effective date of his resignation, had declined
an offer of reassignment to Washington, D.C., and had told
OIG employees that he already had a job offer in Singapore.
Letter from E.L. Mosley to T.A. Egan 3-4 (Mar. 20, 1997).
The OIG also informed Egan of his right to appeal its
decision to the Foreign Service Grievance Board (FSGB)
within 60 days. Id. at 4.
Egan did not appeal to the FSGB. Instead, over a year
and a half later he filed a second set of grievances with the
OIG, again contending that his resignation had been involun-
3
tary. Grievance from T.A. Egan to J. Rush, Jr. (Oct. 30,
1998). Specifically, Egan alleged that he had been ‘‘effective-
ly TTT terminated from [his] position of employment by the
OIG’’ through ‘‘acts of duress, coercion, and misinformation.’’
Id. at 7-8. Egan requested multiple remedies, including
reinstatement, back pay, and allowances for the period of
separation. Id. at 9. On February 5, 1999, the OIG rejected
Egan’s second set of grievances, finding the grievances merit-
less. Letter from E.L. Mosley to T.A. Egan (Feb. 5, 1999).
It again reminded Egan that he had 60 days to file an appeal
with the FSGB. Id. at 2.
This time Egan did appeal, requesting, inter alia, pro-
motion, reassignment to South Africa, and pay and allow-
ances. Letter from T.A. Egan to FSGB at 5 (Mar. 22, 1999).
On April 6, 2000, the FSGB declined to hear Egan’s appeal.
It noted that, ‘‘because the principal focus of grievant’s
claim — that he has been constructively discharged without
the rights to which he was entitled — has already been
decided adversely to him[,] TTT he is estopped from raising
again that same issue.’’ Apr. 2000 FSGB Denial at 8. In
short, the FSGB concluded that the OIG’s March 20, 1997
decision on the issue of ‘‘the voluntariness of [his] resigna-
tion’’ had become controlling upon Egan’s failure to appeal,
and that both the OIG and FSGB were bound by that
decision. Id. at 9-10.
Although not required by law to file a petition for reconsid-
eration before obtaining judicial review of the FSGB’s order,
see 22 C.F.R. § 910.1, Egan filed two such petitions. The
Board denied his initial request for reconsideration on August
9, 2000, finding that Egan had not submitted any newly
discovered or previously unavailable material evidence — the
standard for reconsideration under the FSGB’s regulations.
Aug. 2000 FSGB Denial at 3; see 22 C.F.R. § 910.1. In
response to a subsequent e-mail from Egan, the Board ad-
vised him that its regulations contained no provision for a
second petition for reconsideration. E-mail from B. Chessin
to T.A. Egan (Oct. 10, 2000). Egan nevertheless filed a
second request for reconsideration, which the Board denied
on June 5, 2001. June 2001 FSGB Denial.
4
On November 20, 2001, Egan filed a complaint against
USAID in the United States District Court for the District of
Columbia, seeking review of the FSGB’s April 6, 2000 deci-
sion and of its August 2000 and June 2001 orders denying
reconsideration. The district court granted USAID’s motion
for summary judgment, finding that Egan’s complaint was
untimely because he had failed to file it within 180 days of the
FSGB’s final action, as required by section 1110 of the
Foreign Service Act, 22 U.S.C. § 4140. Egan v. Natsios, No.
01-2414, Mem. Op. & Order at 3-5 (D.D.C. Aug. 7, 2003).
Egan appealed to this court, and USAID now moves for
summary affirmance of the district court’s judgment.
II
We review the district court’s grant of summary judgment
de novo. Information Handling Serv., Inc. v. Defense Auto-
mated Printing Servs., 338 F.3d 1024, 1031–32 (D.C. Cir.
2003). Summary judgment is appropriate only if ‘‘ ‘there is
no genuine issue as to any material fact and TTT the moving
party is entitled to a judgment as a matter of law.’ ’’
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)
(quoting FED. R. CIV. P. 56(c)). Since this case reaches us on
a motion for summary affirmance, the appellee must also
‘‘demonstrate that the merits of [its] claim are so clear as to
justify expedited action.’’ Walker v. Washington, 627 F.2d
541, 545 (D.C. Cir. 1980); see also United States v. Allen, 408
F.2d 1287, 1288 (D.C. Cir. 1969).
The district court granted summary judgment because it
found Egan’s complaint untimely under section 1110 of the
Foreign Service Act. That section provides:
Any aggrieved party may obtain judicial review of a final
action of the Secretary or the Board on any grievance in
the district courts of the United States TTT if the request
for judicial review is filed not later than 180 days after
the final action of the Secretary or the Board (or in the
case of an aggrieved party who is posted abroad at the
time of the final action of the Secretary or the Board, if
the request for judicial review is filed not later than 180
5
days after the aggrieved party’s return to the United
States).
22 U.S.C. § 4140(a). There is no dispute that Egan filed his
November 2001 district court complaint more than 180 days
after the FSGB’s April 2000 decision and August 2000 denial
of reconsideration. Accordingly, judicial review of those or-
ders is time barred unless some exception applies.
Egan contends that an exception does apply, namely the
exception set forth in section 1110’s parenthetical phrase,
which permits ‘‘an aggrieved party who is posted abroad at
the time of the final [FSGB] action’’ to file within 180 days
after he returns to the United States. Egan believes he
comes within this exception because, at the time of the FSGB
decision, he was ‘‘posted abroad’’ by his new private-sector
employer in Singapore.
A phrase like ‘‘posted abroad’’ can, of course, have several
meanings. In one context, it could refer to working at the
overseas office of a private employer. Indeed, in another
context it could mean mailing a letter from a foreign postbox.
But the only meaning that makes sense in the context of the
Foreign Service Act is working abroad for the Foreign Ser-
vice. See FDA v. Brown & Williamson Tobacco Corp., 529
U.S. 120, 133 (2000) (declaring that the ‘‘words of a statute
must be read in their context and with a view to their place in
the overall statutory scheme’’) (internal quotation marks
omitted).
The Foreign Service Act uses the term ‘‘post’’ on numerous
occasions, and each time it refers to a place where an
employee of the Service is stationed. See, e.g., 22 U.S.C.
§ 4022(a) (‘‘The Secretary shall establish foreign language
proficiency requirements for members of the Service who are
to be assigned abroad in order that Foreign Service posts
abroad will be staffed by individuals [proficient in the lan-
guage].’’); id. § 4057 (‘‘The Secretary of State may from time
to time establish a list of places which TTT are to be classed as
unhealthful posts.’’); id. § 4081(1) (‘‘The Secretary may pay
the travel and related expenses of members of the Service
TTT including costs or expenses incurred for TTT proceeding
6
to and returning from assigned posts of dutyTTTT’’). The
legislative history of the specific provision at issue here
confirms that interpretation. Both the Senate Report and
the House Conference Report on the Foreign Relations Au-
thorization Act for fiscal years 1994 and 1995, which included
the relevant language amending section 1110, characterize the
amendment as requiring the ‘‘filing of judicial review of
Foreign Service Grievance Board decisions within 180 days of
final action by the Board, or in the case of employees at posts
abroad, within 180 days after the employee’s return to the
United States.’’ H.R. CONF. REP. NO. 103–482, at 181 (1994)
(emphasis added); S. REP. NO. 103-107, at 25 (1993) (same).
Both reports also make clear that the ‘‘employees’’ they are
referring to are ‘‘Foreign Service employees.’’ H.R. CONF.
REP. NO. 103–482, at 180; S. REP. NO. 103-107, at 24.
Egan notes that the Act specifically permits former mem-
bers of the Service to file grievances, see 22 U.S.C. § 4132,
and argues that to interpret ‘‘posted abroad’’ to refer only to
those posted abroad by the government would render the
term ‘‘aggrieved party’’ in section 1110 meaningless as far as
former members are concerned. See id. §§ 4131(a)(1)(G),
4132 (describing the circumstances under which former Ser-
vice members may file grievances); see also United States
Info. Agency v. Krc, 989 F.2d 1211, 1217 (D.C. Cir. 1993).
That is so, he says, because former Service members who are
aggrieved and living abroad would not be able to comply with
the section’s requirements. But this contention is plainly
wrong. Aggrieved former Foreign Service members would
still have 180 days from the date of the FSGB’s final decision
to file for review in district court. 22 U.S.C. § 4140(a).
Although they would not have the additional time that Con-
gress has afforded members of the Service, 180 days is surely
sufficient time in which to file an appeal — even from
Singapore. And it is hardly surprising that Congress would
make allowances for the difficulties faced by current Foreign
Service employees stationed abroad, without making similar
provisions for those who have left government service.
For the foregoing reasons, we conclude that Congress
intended the more generous time limits afforded those ‘‘post-
7
ed abroad’’ to apply only to members of the Foreign Service.
Because Egan was not a member of the Foreign Service
when the FSGB issued the orders from which he seeks to
appeal, the statute gave him only 180 days in which to file a
request for judicial review. Since Egan’s district court com-
plaint came more than 180 days after the FSGB’s April 6,
2000 decision and August 9, 2000 denial of reconsideration, his
appeal from those orders was untimely.
This leaves only the appeal from the FSGB’s June 5, 2001
order denying Egan’s second request for reconsideration,
which would be timely — if that order were reviewable. But
it is not. As we said in Sendra Corporation v. Magaw:
‘‘While an agency’s first refusal to grant reconsideration may
be reviewable in limited circumstances, its denial of succes-
sive requests for reconsideration of the same decision are not.
Whether an agency should even respond to such entreaties is
‘committed to agency discretion by law,’ and therefore not
subject to judicial review.’’ 111 F.3d 162, 167 (D.C. Cir. 1997)
(quoting 5 U.S.C. § 701(a)(2)); see also Schoenbohm v. FCC,
204 F.3d 243, 245, 250 (D.C. Cir. 2000) (holding that an
agency’s denial of a request for reconsideration ‘‘is generally
nonreviewable unless the request TTT was based on new
evidence or changed circumstances’’).
III
Because Egan’s complaint was not filed within the statuto-
ry time limit, the district court properly concluded that
USAID was entitled to summary judgment as a matter of
law. The judgment of the district court is therefore
Affirmed.