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Egan v. United States Agency for Internal Development

August 31, 2004

THOMAS A. EGAN, APPELLANT
v.
UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT, APPELLEE



Appeal from the United States District Court for the District of Columbia (No. 01cv2414)

Before: Sentelle, Rogers, and Garland, Circuit Judges.

The opinion of the court was delivered by: Garland, Circuit Judge

On Motion for Summary Affirmance

Plaintiff Thomas Egan appeals from the district court's grant of summary judgment in favor of his former employer, the United States Agency for International Development (USAID). Egan brought suit contesting the Foreign Service Grievance Board's dismissal of grievances 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 district 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 ... 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 involuntary. Grievance from T.A. Egan to J. Rush, Jr. (Oct. 30, 1998). Specifically, Egan alleged that he had been "effectively ... 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 meritless. 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, promotion, reassignment to South Africa, and pay and allowances. 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[,] ... 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] resignation" 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 reconsideration 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 advised 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.

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 decision 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 Automated Printing Serv., 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 ... 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 ...


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