Walter F. Costello, Appellant, v. Agency for International Development, 843 F.2d 540 (D.C. Cir. 1988)

The question presented by this case is whether the Foreign Service Grievance Board ("Board") has the authority to award attorney fees to a Foreign Service Officer ("FSO") who prevails in an action brought to separate him for cause from the Service pursuant to section 610(a) of the Foreign Service Act of 1980 ("Act"), 22 U.S.C. § 4010(a) (1982). The Act makes provision for such awards where the grievance of a FSO is found to be meritorious; the Board held in this case, however, that it had no authority to award fees because the hearing prescribed in section 610(a) (2) as a prerequisite to separation for cause was not a "grievance" procedure. The District Court agreed with this interpretation of the Act and affirmed.

We find it impossible to reconcile the Board's interpretation of the statutory scheme with any rational understanding of congressional intent. We therefore reverse the decision of the District Court and remand for further proceedings.

Appellant Walter F. Costello was, in 1983, a FSO employed by appellee Agency for International Development ("AID"). When AID proposed to "separate" him from the Service because of alleged misconduct during an earlier assignment in Somalia, Costello obtained a hearing before the Board, as provided by section 610(a) (2). In June 1984, the Board dismissed the case against Costello for want of sufficient evidence. Several months later Costello filed a motion with the Board requesting an award of attorney fees. In a decision dated May 24, 1985, the Board rejected the motion, on the ground that it had no authority under the Act to award fees in a separation-for-cause action.

The Board's authority to award attorney fees is found in section 1107(b) (5) of the Act, 22 U.S.C. § 4137(b) (5). Section 1107(b) provides that when the Board "finds that the grievance is meritorious," it shall have authority to direct the Department of State or other agency employing the FSO to take any of several remedial measures, including:

(5) to pay reasonable attorney fees to the grievant to the same extent and in the same manner as such fees may be required by the Merit Systems Protection Board under section 7701(g) of title 5....¹ 

As section 1107(b) applies only in the case of a "grievance," it is essential to determine whether a separation-for-cause action pursuant to section 610(a) is a grievance within the compass of section 1107(b). "Grievance" is defined in section 1101(a) (1), 22 U.S.C. § 4131(a) (1), as

any act, omission, or condition subject to the control of the Secretary [of State or other agency head] which is alleged to deprive a member of the Service who is a citizen of the United States of a right or benefit authorized by law or regulation or which is otherwise a source of concern or dissatisfaction to the member, including--

(A) separation of the member allegedly contrary to laws or regulations, or predicated upon alleged inaccuracy, omission, error, or falsely prejudicial character of information in any part of the official personnel record of the member....

Section 1101(b) makes several exceptions to this definition, including "any complaint or appeal where a specific statutory hearing procedure exists...." Section 1101(b) (4), 22 U.S.C. § 4131(b) (4).² 

The Board construed section 610(a) (2)³  to provide a "specific statutory hearing procedure" of the sort contemplated by section 1101(b) (4). The Board recognized that "the definition of 'grievance' in Section 1101 of the Act is broad enough to encompass a challenge to a separation for cause," and that under the remedial provisions of section 1107 the Board had the authority to remedy an attempted separation by ordering the Government to retain the grievant in the Service.⁴  "If these were the only provisions of the Act bearing on the subject," the Board stated, "we would have little doubt that a separation for cause could be challenged through the grievance procedure established by Chapter 11 of the Act." Costello v. AID, No. S-83-002-AID-2, slip op. at 4-5 (May 24, 1985), reprinted in Appellant's Appendix ("App.") 9, 13-14. The Board held, however, that section 610(a) (2) created a distinct separation-for-cause procedure, separate from "grievance" proceedings: "The import of this section, as the Board has understood it since the Act was passed, is to make separation for cause cases a discrete category of proceedings (subject, of course, to the same procedures used in grievance cases)." Id. at 5, App. 14. Any other interpretation, it contended, would make section 610(a) (2) "largely superfluous." Id. Therefore, having concluded that "a separation proceeding is not a grievance," the Board found that it had no authority to award attorney fees under section 1107(b) (5). Id. at 6, App. 15.

The District Court agreed. It relied on both section 1101(b) (4) and the last sentence of section 610(a) (2) to hold that

separation for cause hearings pursuant to subchapter VI and the grievance procedures pursuant to subchapter XI are distinct and mutually exclusive avenues of redress.... [T]he Act expressly establishes a special hearing right for separation for cause cases based on misconduct, and the existence of that statutory right takes this type of dispute out of the ordinary grievance procedures established in subchapter XI.

Costello v. Foreign Serv. Grievance Bd., No. 85-3890, slip op. at 5 (D.D.C. May 7, 1986), reprinted in App. 3, 7.

This case presents "a pure question of statutory construction," INS v. Cardoza-Fonseca, --- U.S. ----, 107 S. Ct. 1207, 1221, 94 L. Ed. 2d 434 (1987), with respect to which our task is to determine the intent of Congress. In so doing, we apply a familiar methodology:

On a pure question of statutory construction, our first job is to try to determine congressional intent, using "traditional tools of statutory construction." If we can do so, then that interpretation must be given effect....

NLRB v. United Food & Commercial Workers Union, Local 23, --- U.S. ----, 108 S. Ct. 413, 421, 98 L. Ed. 2d 429 (1987) (quoting Cardoza-Fonseca, 107 S. Ct. at 1221). In this case, we believe that " [t]he words, structure, and history of the [Act] clearly reveal that Congress intended" to authorize the Board to award attorney fees to a FSO who prevails in an action under section 610(a). United Food & Commercial Workers, 108 S. Ct. at 421. However, even if we were somehow to find the Act "silent or ambiguous with respect to the specific issue," Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 843, 104 S. Ct. 2778, 2782, 81 L. Ed. 2d 694 (1984), we would still reject the Board's construction because it is not "rational and consistent with the statute." United Food & Commercial Workers, 108 S. Ct. at 421. In either event, the judgment of the District Court upholding the Board's decision cannot stand.⁵ 

B. Section 610(a) (2) as a Grievance Proceeding

The correct construction of section 610(a) (2), see note 3 supra, is readily apparent when it is placed in the context of federal personnel policies generally. The requirement that cause must be established at a hearing before an employee may be removed is the exception rather than the norm in the federal service. The roughly comparable Civil Service provision, for example, contains no such requirement. See 5 U.S.C. § 7513 (1982).⁶  From this perspective, it seems apparent that the principal purpose of section 610(a) (2) is to specify the timing of the FSO's grievance proceeding in relation to his separation from the Service. The import of this section is to guarantee the FSO--who is already entitled to a hearing under the grievance procedures outlined in sections 1101-1110--that he can be separated only after the grievance hearing has been held and cause for separation established. Thus, the hearing referred to in section 610(a) (2) is simply the grievance hearing itself, rather than some separate hearing procedure.

This reading is fully consistent with the language of the statute, which states that the FSO "shall not be separated from the Service under this section [i.e., for cause] until the member has been granted a hearing before the Foreign Service Grievance Board and the cause for separation established at such hearing...." See note 3 supra. The requirements that the hearing be before the Foreign Service Grievance Board and that the grievance procedures of section 1106 be applied reinforce the interpretation that what is at issue here is a grievance proceeding.

Nor does the section's final clause compel a different result, as the District Court believed. The legislative history of section 610(a) makes quite clear the purpose of the statement that " [t]he hearing provided under this paragraph ... shall be in lieu of any other administrative procedure authorized or required by this or any other law." That provision was added by the Foreign Service Act of 1980, Pub. L. No. 96-465, 94 Stat. 2071, 2098.⁷  The Senate committee report makes plain that this language was intended to "avoid [ ] the potential of duplicate hearings for those few members who may also have access to the Merit Systems Protection Board." S.REP. NO. 913, 96th Cong., 2d Sess. 56, reprinted in 1980 U.S.CODE CONG. & ADMIN.NEWS 4419, 4473.⁸  It in no way suggests that the hearing provided by this section is not a grievance proceeding.

If section 610(a) (2) merely specifies that the FSO's grievance must be heard and decided prior to termination, then there is nothing at all in the statutory scheme that makes the separation-for-cause action anything other than a grievance proceeding within the meaning of section 1101.⁹  In particular, the exclusion in section 1101(b) (4) of complaints "where a specific statutory hearing procedure exists" has no application whatever, for the "hearing procedure" of section 610(a) (2) is simply the grievance procedure itself.¹⁰ 

The Board's contrary construction of section 610(a) (2), and other relevant provisions of the Act, cannot withstand scrutiny. The Board's interpretation produces incoherencies in the Act and would entail several anomalies. First, a FSO would be eligible for attorney fees when contesting a broad range of personnel issues, from the most minor working condition up through disciplinary suspension--but excluding only the most severe action of separation for cause. It is difficult to imagine any reason why Congress would have ordained such an arrangement.¹¹ 

Second, the Board's view that a separation-for-cause action is not a grievance proceeding would deprive the FSO not only of the right to attorney fees, but to any of the remedies provided by section 1107(b). In addition to awarding attorney fees, the Board is also given authority under that section to order the employing agency to correct personnel records, to reverse denials of compensation and benefits, to retain a member in the Service who would otherwise be separated, to reinstate a grievant and provide back pay, and to take other remedial action pursuant to labor-management agreement. 22 U.S.C. § 4137(b).¹²  The Board's construction would also call into question the District Court's jurisdiction to review separation-for-cause actions under the Act's judicial review provision in section 1110, which speaks of review of actions by the Board "on any grievance." 22 U.S.C. § 4140 (emphasis added).

At oral argument, counsel for the Government attempted to avoid these consequences by articulating a theory under which a FSO prevailing in a separation-for-cause hearing could gain access to the remedies of section 1107(b) by subsequently filing a separate "grievance." Once again, it is difficult to discern any reason why Congress would have intended such a cumbersome and duplicative procedure. What is more, under this bifurcated procedure the secondary proceeding would be a "grievance," but the initial separation-for-cause action would not. Thus, the heart of the dispute--the very issue on which the outcome turned--would be removed from the "grievance." The FSO could, accordingly, recover attorney fees for his lawyer's work on every issue except the central one of whether separation for cause was justified.¹³ 

There is no reason to be found--in the words of the Act, its legislative history, or in common sense--to justify a congressional intent to establish a scheme along the lines envisioned by Government counsel. Absent some plausible explanation, we will not ascribe to Congress a nonsensical answer to the problem before us, especially when there is a perfectly rational construction of the statute at hand.

CONCLUSION

We conclude that a separation-for-cause action under section 610(a) (2) is a "grievance," as that term is defined in section 1101. Even if it could be said that "Congress has not directly addressed [this] precise question ...," Chevron, 467 U.S. at 843, 104 S. Ct. at 2782, the Board's construction falls far short of being "rational and consistent with the statute." United Food & Commercial Workers, 108 S. Ct. at 421.

Since the action in which the appellant prevailed was a "grievance," the Board has the authority pursuant to section 1107(b) (5) to order an award of attorney fees if the criteria set forth in 5 U.S.C. § 7701(g) are met.¹⁴ 

We therefore reverse the decision of the District Court and remand so that the case may be returned to the Board for further proceedings consistent with this opinion.

So ordered.