Margot Ellen Reiner v. United States of America

WILKEY, Circuit Judge,

concurring:

I join in the judgment and opinion of the court. I also write separately to amplify several points touched upon by the court’s opinion.

Margot Ellen Reiner asks us to correct an egregious administrative error, one which impeded her promising career in the Foreign Service. Officers in the Foreign Service are entitled to have their promotion considered periodically by selection boards. After Reiner entered the Foreign Service in 1971, however, the State Department failed to submit her file to the first five boards which should have considered her for promotion. Reiner appealed first to the State Department, then to the Foreign Service Grievance Board, asking that this error be corrected.

The task of the Grievance Board was to ensure that Reiner be placed in the position she would have reached had her file been considered by those five boards. Usually, the remedy in cases such as Reiner’s is to give the grievant the same promotions achieved by members of her “class” with comparable Foreign Service records — i.e., the promotions achieved by fellow officers who entered the Foreign Service with the grievant and performed as well as she.

This method of comparison cannot be applied to Reiner’s case. Her career differs from that of the other members of her “class” in two respects. First, unlike most Foreign Service Officers, Reiner entered the Foreign Service with five years of experience as a Foreign Service Staff Officer. During these five years, she performed tasks usually assigned to Foreign Service Officers, and her performance is described as “excellent.” Thus, she brought to the Foreign Service valuable experience and a proven record, which most novice Foreign Service Officers do not offer.

Second, because of her experience as a Foreign Service Staff Officer, Reiner was eligible for promotion immediately upon her entry into the Foreign Service. Other Foreign Service Officers, by contrast, must serve an eighteen month probationary period before they are considered for promotion.

For these two reasons, the Grievance Board could not determine Reiner’s appropriate level of promotion simply by comparing her with other members of the class of 1971, the class with which she entered the Foreign Service. The court holds here that the Grievance Board erred in proceeding on the basis of such a comparison. 1

Reiner contends that the Board’s decision must be corrected to take account of the two differences between her and other members of the class of 1971. Initially, Reiner argues that the Board should correct its decision for the fact that Reiner did not serve an eighteen month probationary period. As the court holds, we must remand to the Board so that this correction may be made. 2

I would emphasize further that the Board’s failure to take the probationary period into account may have harmed the plaintiff in two respects. First, Reiner should have been considered for promotion eighteen months before her fellow entrants into the Service. Indeed, she should have been evaluated by four selection boards while other members of her class were still on probation. 3 Second, Reiner performed eighteen months of full service in 1971-72, rather than the less important probationary service required of novice entrants. Her record for the first eighteen months would thus have presented to the selection boards a calibre of service higher than that of other class members. For example, Reiner completed an assignment in an FSO-4 position while other members of the 1971 class *1027 were receiving their initial training. 4 The Grievance Board on remand should take care to consider both aspects of Reiner’s record in fashioning appropriate relief.

To demonstrate how this might be done, I consider her requested promotions in turn.

First, Reiner agrees with the Grievance Board that her promotion to FSO-6 should have occurred in October 1972; 5 she apparently does not ask for reconsideration of this part of the Board’s decision in light of her 1966-1971 experiencé.

Second, in considering Reiner’s promotion from FSO-6 to FSO-5, the Grievance Board purported to “giv[e] some credit for Reiner’s service as an FSSO ....” 6 Rein-er does not question that the Board in fact did give weight to her previous record. Instead she asks that the Board “apply[ ] [the] same time-between-class period” to her as to other members of the class of 1971, who were promoted from FSO-6 to FSO-5 in two years. 7 Again, Reiner asks merely that her promotion be advanced to take into account her eighteen month head start over her peers.

With respect to promotion from FSO-5 to FSO-4, Reiner acknowledges that the Board “[gave] recognition to plaintiff’s 1966 to 1971 Foreign Service experience.” 8 She argues only that “the Board completely neglected the other critical factor which distinguishes her from the members of the Class of 1971 — her entry into the FSO promotion process 18 months earlier than any of the 1971 class members.” 9

Finally, Reiner argues, on the basis of the promotion history of the class of 1966, 10 that she should be promoted to FSO-3 within a decade of the date when she was first available for promotion. 11 The propriety of the ten-year figure does not depend upon Reiner’s FSSO service: it is derived from a comparison to officers who entered the class of 1966 without such experience. 12

Therefore, once we find that the Board did not appropriately take the eighteen month probationary period into account, plaintiff’s contentions as to her FSSO experience become in effect merged into this. 13 *1028 Remand to correct for Reiner’s eighteen month head start authorizes all the relief the plaintiff has requested. On this understanding, I concur with the Court’s holding that we remand for reconsideration of that issue alone.

I am confident that the Board on remand will do justice to the plaintiff’s outstanding record of service. On that basis, I join the judgment and opinion of the court.

. Opinion of the Court at 1025.

. Id. at 1024-1026.

. Id. at 1024.

. See Plaintiff’s Statement of Material Facts as to Which There is No Genuine Issue at 3 (1 June 1981), Joint Appendix (J.A.) at 20; Defendant’s Response at 2, J.A. at 26.

. See Appellant’s Brief at 34 and n.21; Foreign Service Grievance Board Decision at 23-24 (18 July 1980), J.A. at 147-148.

. Foreign Service Grievance Board Decision at 23, J.A. at 147.

. Appellant’s Brief at 34 and n.22.

. Id. at 35.

. Id. (emphasis added).

. With respect to the promotion to FSO-3, comparison to the class of 1966 is arguably appropriate because no comparison to the class of 1971 is possible: members of the 1971 class who served the eighteen month probationary period have not yet been available for promotion for ten years.

. See Appellant’s Brief at 36-37.

. See 1979 Class of 1966 Statistics (7 Sept. 1979), J.A. at 113. It should be noted that the Board on remand reaches this issue for this first time: Reiner could not make this argument to the Board in 1980, since she had not been eligible for promotion for ten years at that time.

. It is thus unnecessary to speculate that Reiner “did receive some credit for her experience” because she was classified, pursuant to 22 U.S.C. § 911 (1976), at FSO-7 rather than FSO-8 upon entry into the Foreign Service. See Opinion of the Court at 1024. The Grievance Board does not mention this argument as a basis for its decision; and its treatment of Reiner’s prior service appears sufficiently justified for the reasons discussed above.

Moreover, I doubt that, as a matter of law, Congress intended section 911 to reward prior service such as that of Reiner. The Foreign Service Act, which includes this provision, was passed in 1946. The Foreign Service Act of 1946, ch. 957, 60 Stat. 999 (1946) (codified at 22 U.S.C. §§ 801-1159 (1976)). But the program from which Reiner entered the Foreign Service was first established in 1964. See Opinion of the Court at 1018-1019; Foreign Affairs Manual Circular No. 255 at 1-5 (25 Nov. 1964), J.A. at 36-40. Moreover, that program was designed to attract talented young men and women who would perform Foreign Service tasks and who might later have an opportunity to enter the Service. Id. It seems unlikely that Congress contemplated this form of prior service when it drafted section 911.

Indeed, section 911 is apparently now invoked to reward a miscellany of prior training and experience. Most of the class of 1971 *1028 entered with FSO-7 classification. See Interrogatory No. 19, 99th Junior Officer Class (tabulation of promotional history submitted at hearing of 19 Nov. 1976), J.A. at 100-03. It would be fortunate if over 80% of our entering Foreign Service officers brought with them the equivalent of six years of “excellent” performance in Foreign Service responsibilities, but I doubt that this is in fact the case. In any event, it is for the Board, not this court, to make such findings in the first instance.