The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 14, 2022 Decided March 7, 2023
No. 21-5140
JULIE A. BEBERMAN,
APPELLANT
v.
ANTONY J. BLINKEN, SECRETARY OF STATE, IN HIS OFFICIAL
CAPACITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-00873)
Peter J. Lynch argued the cause for appellant. On the
briefs was Julie A. Beberman, pro se.
Christopher C. Hair, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were R. Craig
Lawrence and Peter C. Pfaffenroth, Assistant U.S. Attorneys.
Stephanie R. Johnson, Assistant U.S. Attorney, entered an
appearance.
Before: RAO and WALKER, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge WALKER.
WALKER, Circuit Judge: Julie Beberman asked the
Foreign Service Grievance Board to review the Foreign
Service’s decision to deny her tenure. While the Board was
considering her grievances, Beberman asked the Board to grant
“interim relief.” That relief would have let Beberman keep
working for the Foreign Service until her case was decided.
But the Board refused to grant it. So Beberman filed this suit,
claiming that the Board should have given her relief.
After Beberman lost in the district court and appealed to
this court, the Board reached final decisions on her grievances.
Those decisions moot Beberman’s request for interim
relief. It is too late for the Board to reconsider its interim-relief
decisions, so reversing and remanding would change nothing.
And though Beberman’s complaint asked for backpay, she is
not entitled to that remedy. We thus affirm the district court’s
decision to dismiss Beberman’s backpay claim, and we dismiss
Beberman’s appeal of her interim-relief claims as moot.
I
Career candidates in the United States Foreign Service are
hired for a limited term but become eligible for permanent
positions after three years. See 22 U.S.C. § 3949; 22 C.F.R.
§ 11.20(a)(3). Candidates who are not offered tenure within
five years must leave the service. Id.
That is what happened to Beberman. The Foreign Service
Commissioning and Tenure Board denied her tenure and
“recommended [her] for separation from the [s]ervice.” Govt.
Add. 46.
3
Beberman appealed the Tenure Board’s decisions to the
Foreign Service Grievance Board, which adjudicates
employment complaints by Foreign Service employees. See 22
C.F.R. § 901.18. In total, Beberman filed five grievances with
the Board, challenging a hodgepodge of the Service’s
decisions.
While each of those grievances was pending, Beberman
asked the Grievance Board for interim relief. Interim relief lets
the Board stop employees’ “involuntary separation” from the
Foreign Service while the Board resolves their grievances. 22
U.S.C. § 4136(8).
The Board rejected all of Beberman’s interim-relief
petitions. Undeterred, she asked the Board to reconsider.
Again, it declined. As a result, Beberman left the Foreign
Service in late 2019, while her grievances were still pending
before the Board.
Rather than waiting for the Board’s final decisions,
Beberman filed suit in federal district court. She challenged
the Board’s denials of interim relief, its refusals to reconsider
those denials, and its failure to compel discovery in one of her
interim-relief petitions.
The district court dismissed Beberman’s suit, finding that
she could not seek judicial review of the Board’s actions until
the Board had reached a final decision on the merits of her
grievances. See 22 U.S.C. § 4140(a) (authorizing “judicial
review of a final action of the Secretary or the Board on any
grievance” (emphasis added)).
Beberman appealed. We took briefing and heard argument
on whether Beberman’s claims were premature. But since
4
then, the Grievance Board has reached final decisions on all of
Beberman’s grievances.
That development moots Beberman’s petition for judicial
review of the Board’s interim-relief decisions.
II
Federal courts may hear only “Cases” and
“Controversies.” U.S. Const. Art. III, § 2, cl. 1. So litigants
must have a “legally cognizable interest, or personal stake, in
the outcome of the [case].” Genesis Healthcare Corp. v.
Symczyk, 569 U.S. 66, 71 (2013) (cleaned up). That
requirement ensures that courts stick to their “constitutionally
limited role of adjudicating actual and concrete disputes” and
do not issue free-roving advisory opinions. Id.; see also
Hayburn’s Case, 2 U.S. (2 Dall.) 408 (1792).
At “all stages of litigation,” litigants must show that “an
‘actual controversy’ persist[s].” Hollingsworth v. Perry, 570
U.S. 693, 705 (2013). If an intervening development deprives
a litigant of a stake in the outcome of the suit, “the action can
no longer proceed and must be dismissed as moot.” Genesis
Healthcare, 569 U.S. at 72. A claim becomes moot “when it
is impossible for a court to grant any effectual relief whatever
to the prevailing party.” Chafin v. Chafin, 568 U.S. 165, 172
(2013) (cleaned up).
Here, this court can do nothing to remedy the Board’s
failure to give interim relief. Consider the two remedies
Beberman requested in her complaint.
5
A
First, Beberman asked the district court to reverse the
Board’s interim-relief decisions and to remand to the agency
for reconsideration. But that request is now moot. Interim
relief is a stop-gap measure that preserves the status quo while
the Board considers a grievance. It has no place where, as here,
the Board has reached a final decision. See Aragon v. Tillerson,
240 F. Supp. 3d 99, 107 (D.D.C. 2017) (interim relief is for
when a plaintiff is “likely to prevail on the merits”). So
reversing the Board’s decisions and remanding to the agency
would make no difference.
The Foreign Service Act confirms as much. Under the
Act, interim relief lets the Board stop the Foreign Service from
“involuntar[ily] separat[ing]” an employee only when that
separation is “related to a grievance pending before the Board.”
22 U.S.C. § 4136(8) (emphasis added). If no grievance is
pending, the Board has no power to issue interim relief.
That is the case here. The Board has reached final
decisions on all Beberman’s grievances. And it “denied [her]
request to file a motion for reconsideration.” Beberman Sup.
Br. 8.
B
Second, in a single sentence of her complaint, Beberman
asked the district court to “[o]rder backpay.” JA 9. But the
district court correctly dismissed that claim. Because
Beberman’s backpay claim lacks merit, it does not give her a
“personal stake in the outcome” of her petition for review of
the Board’s interim-relief decisions. Genesis Healthcare, 569
U.S. at 71.
6
True, a claim for backpay will often prevent mootness. If
a court can order backpay as a remedy, it is not “impossible for
[it] to grant any effectual relief.” Chafin, 568 U.S. at 172
(cleaned up). But a backpay claim will produce no “federal
controversy” under Article III when the claim is “insubstantial,
implausible . . . or otherwise completely devoid of merit.”
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89
(1998) (cleaned up); cf. Chafin, 568 U.S. at 174 (claim was not
“so implausible that it is insufficient to preserve jurisdiction”);
Powell v. McCormack, 395 U.S. 486, 498 (1969) (“failure to
plead sufficient facts” to establish a claim to a remedy can
result in mootness).
That is a low bar. Any plausible argument that backpay is
available will do. See Chafin, 568 U.S. at 172. But Beberman
fails to clear that bar. Because this court has no power to issue
backpay as a judicial remedy, Beberman’s claim is “completely
devoid of merit.” Steel Co., 523 U.S. at 89 (quotation marks
omitted). 1
To start, backpay is not an available remedy on judicial
review of the Board’s orders. Nothing in the Foreign Service
Act authorizes a court to issue backpay. Plus, under the Act,
judicial review is adjudicated “in accordance with the standards
set forth in [the Administrative Procedure Act].” 22 U.S.C.
§ 4140(a). And backpay is not an available remedy under the
1
True, backpay may sometimes be the upshot of a petition for
judicial review. The Board can issue backpay. 22 U.S.C.
§ 4137(b)(4). And if it erroneously denies backpay, a grievant could
seek this court’s review. Id. § 4140(a). As a remedy, we could “hold
unlawful and set aside” the Board’s action and remand for it to award
backpay. 5 U.S.C. § 706. But that does not mean that this court may
award backpay as a free-floating remedy where, as here, a grievant
does not seek review of any backpay decision.
7
APA. See Hubbard v. Administrator, EPA, 982 F.2d 531, 539
(D.C. Cir. 1992) (en banc).
Pushing back, Beberman notes that the Foreign Service
Act allows the Board to “grant the grievant back pay.” 22
U.S.C. § 4137(b)(4). But that provision does not authorize a
court to award backpay. And even if we were to remand for
the Board to consider backpay, it wouldn’t matter to any of
Beberman’s five grievances. The Board can award backpay
only if it “finds that [a] grievance is meritorious.” Id.
§ 4137(b).
Here, the Board found no merit to four of Beberman’s
grievances. As for the fifth grievance, the Board held that
Beberman’s claim had merit, but it still denied her backpay.
And because Beberman has not petitioned for judicial review
of the Board’s decision to deny backpay in that grievance, we
cannot direct the Board to reconsider it.
So we affirm the district court’s decision to dismiss
Beberman’s backpay claim.
C
Finally, Beberman argues that a favorable decision by this
court could remedy her injury indirectly. She imagines
bringing a new grievance to the Board, claiming that the Board
improperly denied her a “financial benefit” when it rejected her
claims for interim relief. See 22 U.S.C. § 4131(a)(1)(G). In
that new grievance, she says, she could use our judgment here
as evidence that the Board’s denial of interim relief was
improper.
To support that argument, Beberman relies on our decision
in Miller v. Baker, 969 F.2d 1098, 1100 (D.C. Cir. 1992). In
8
that case, the Board gave Miller interim relief while it was
considering her grievance, but the Secretary of State fired her
anyway. Miller sued, seeking a declaration that the Board’s
interim-relief order bound the Secretary. In the meantime, the
Board denied Miller’s grievance. This court concluded that
Miller’s claim was live. If it held that the Secretary should not
have fired her, Miller could bring a new grievance alleging that
the Secretary’s wrongful act had denied her a financial
benefit — that is, the benefit of the Board’s interim-relief
order. Id.
But Beberman’s situation is different than Miller’s. No
order from this court could establish that Beberman is entitled
to a financial benefit. That’s because even if Beberman won
here, our order would merely direct the Board to reconsider its
interim-relief decisions. See Northern Air Cargo v. U.S. Postal
Service, 674 F.3d 852, 861 (D.C. Cir. 2012) (typical remedy
for unlawful agency action is to reverse its decision and
remand).
In other words, that order would give Beberman a shot at
convincing the Board to give her interim relief; it would not
show that she is entitled to a “financial benefit.” See 22 U.S.C.
§ 4131(a)(1)(G); cf. Miller, 969 F.2d at 1100. Yet even a shot
at convincing the Board wouldn’t help Beberman. She has no
grievance “pending” before the Board, so it cannot reconsider
a decision on interim relief. 22 U.S.C. § 4136(8).
Plus, this court lacks the power to issue any other remedy
more concretely establishing Beberman’s entitlement to
interim relief. Because we cannot order an agency to exceed
its statutory authority, we may not, for example, direct the
Board to issue interim relief, rather than just reconsider it. See
INS v. Pangilinan, 486 U.S. 875, 885 (1988) (neither “by
invocation of equitable powers, nor by any other means does a
9
court have the power” to order an agency to act outside
statutory “limitations”). And (once again) the Board has no
authority to issue interim relief without a “pending” grievance.
22 U.S.C. § 4136(8). 2
* * *
We affirm the district court’s decision to dismiss
Beberman’s backpay claim, and we dismiss Beberman’s appeal
of her interim-relief claims as moot.
So ordered.
2
Beberman’s complaint also asked for a “stay of [the Board’s]
decision denying [her] . . . interim relief.” JA 8. Because we dismiss
Beberman’s appeal and affirm the district court’s decision to deny
backpay, Beberman’s stay request is moot. See In re GTE Service
Corp., 762 F.2d 1024, 1026 (D.C. Cir. 1985).