Fritch v. U.S. Department of State

MOTION for Summary Judgment

D.D.C.May 17, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) PAUL FRITCH, ) ) Plaintiff, ) Civil Action No. 15-430 (APM) v. ) ) U.S. DEPARTMENT OF ) STATE, ) ) Defendant. ) ) DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Pursuant to Federal Rule of Civil Procedure 56, Defendant United States Department of State (“Defendant” or “Department”), by and through undersigned counsel, respectfully moves for summary judgment in its favor on the remaining claims in this case set out in Counts III and IV of Plaintiff Paul Fritch’s Amended Complaint (“Amended Complaint” or “Amended Compl.”).1 Defendant is entitled to judgment as a matter of law on Counts III and IV based on the administrative record on file with the Court. In support of this Motion, the Department respectfully refers the Court to the accompanying Memorandum of Points and Authorities, which includes a Statement of Facts with references to the administrative record.2 See LCVR 7(h)(2). A proposed Order consistent with this Motion is attached hereto. Respectfully submitted, 1 Defendant’s Motion for Partial Summary Judgment as to Counts I and II of the Amended Complaint (Motion for Partial Summary Judgment) was granted in its entirety by order of this Court dated October 27, 2016. See Memorandum Opinion and Order, ECF 42. 2 The administrative record in this matter was filed in two parts. The first part was filed in connection with the briefing on Counts I and II of the Amended Complaint (hereinafter referenced as “1ROP” for the record relating to the grievance appeal and “1ROP(R)” for the record relating to the request for reconsideration of the decision issued in that appeal or “1Bates”). The second part was filed on January 26, 2017 in connection with the briefing relating to Counts III and IV of the Amended Complaint (hereinafter referenced as “2ROP” or “2Bates”). Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 1 of 29 2 CHANNING D. PHILLIPS, DC Bar #415793 United States Attorney for the District of Columbia DANIEL F. VAN HORN, DC Bar # 924092 Chief, Civil Division _____________________________ Patricia K. McBride, PA Bar #54561 Assistant United States Attorney Civil Division 555 4th Street, NW, Room E-4808 Washington, DC 20530 Tel: 202-252-7123 Fax: 202-252-2599 Email: Patricia.McBride@usdoj.gov Attorneys for Defendant Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 2 of 29 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) PAUL FRITCH, ) ) Plaintiff, ) Civil Action No. 15-430 (APM) v. ) ) U.S. DEPARTMENT OF ) STATE, ) ) Defendant. ) ) ORDER Upon consideration of Defendant’s Motion for Summary Judgment, supporting Memorandum of Points and Authorities with included Statement of Facts and Procedural History with references to the administrative record, Plaintiff’s response thereto, and the entire record herein, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that judgment shall be entered in favor of Defendant on the remaining claims set out in Plaintiff’s Amended Complaint. It is SO ORDERED this ____ day of ___________, 2017. ___________________________ Amit P. Mehta United States District Judge Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 3 of 29 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) PAUL FRITCH, ) ) Plaintiff, ) Civil Action No. 15-430 (APM) v. ) ) U.S. DEPARTMENT OF ) STATE, ) ) Defendant. ) ) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION This is an appeal from a Foreign Service Grievance Board order that dismissed a grievance appeal filed by Plaintiff Paul Fritch (Plaintiff) in July 2014 on the common-law ground of claim preclusion (“Order of Dismissal”). In August 2012, Plaintiff, who had previously separated from the Department and transferred to an international organization, filed a grievance complaining that he did not receive certain benefits upon his subsequent reemployment with the Department (“First Grievance”). The gravamen of the First Grievance claimed that the Department deprived him of promotion consideration from August 2007 to March 2012 when he was “seconded” via a separation and transfer from the Department to serve in a position as the Director of the Office of the Secretary General for the Organization for Security and Cooperation in Europe (“OSCE”). See Def.’s Statement of Facts and Procedural History (“SOF”) §§ II(A), (B). This First Grievance, which grieved the denial of promotion consideration in connection with his separation and transfer from the Department on August 7, 2012, was denied by the Department on November 20, 2012. Id. Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 4 of 29 2 Plaintiff subsequently appealed the denial of his grievance to the Foreign Service Grievance Board (“FSGB” or “Board”), which thereafter denied the appeal. On April 16, 2014, Plaintiff submitted a Request for Reconsideration of this FSGB decision, which the Board also denied. Id. This Court upheld the Board’s denial of both the FSGB decision denying Plaintiff’s appeal and the FSGB decision denying Plaintiff’s subsequent request for reconsideration of that same decision. Civil No. 15-cv-00430 (APM)(D.D.C. Oct. 27, 2016). On April 21, 2014 – shortly after filing his request for reconsideration in the First Grievance – Plaintiff filed a second grievance (“Second Grievance”) with the Department based on the same set of underlying facts as the First Grievance, asserting claims for benefits in connection with his separation and transfer to the OSCE that could have been, but were not, brought in the First Grievance. When no decision was issued by the Department within 90 days,3 Plaintiff appealed this Second Grievance to the FSGB. The Board, in a decision which thoroughly addressed Plaintiff’s arguments, dismissed the Second Grievance because the claims presented therein were based on the same set of facts and transactions that formed the basis of a prior grievance that had been decided in favor of the Department, and were thus barred under the common-law doctrine of claim preclusion. The Board’s decision was rational, well-reasoned, and amply supported by the administrative record. The Board carefully reviewed Plaintiff’s grievance appeal in light of the administrative record and the arguments from both parties and correctly dismissed Plaintiff’s appeal of the Second Grievance because Plaintiff failed to bring all of his claims relating to the same series of events during the First Grievance. 3 As recognized by Plaintiff, his then-pending request for reconsideration in his First Grievance, if granted, could have rendered the Second Grievance moot. 2ROP at 5 (2Bates 6). The Department advised Plaintiff and the Board that, because the Second Grievance was contingent upon the Decision in the First Grievance being upheld, it would await the Board’s order on the request for reconsideration before continuing to investigate and process the Second Grievance. 1ROP(R) at 113 (1Bates 923). Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 5 of 29 3 Accordingly, for the reasons set forth below, the Department’s Motion for Summary Judgment should be granted and the only remaining claims in this case – Counts III and IV of Plaintiff’s Amended Complaint challenging the Board’s decision in this regard – should be dismissed with prejudice. II. STATEMENT OF FACTS AND PROCEDURAL HISTORY Pursuant to Local Civil Rule 7(h)(2), Defendant, by and through counsel, hereby submits the following statement of facts with references to the administrative record in Support of Defendant’s Motion for Summary Judgment: A. Plaintiff Is Separated and Transferred From the Department to Assume a Position at the OSCE. Plaintiff is a Foreign Service Officer who has been employed by the Department, an executive agency of the United States under the Administrative Procedure Act (APA), 5 U.S.C. §701(b)(1), since June 6, 1991. See Amended Compl. ¶¶ 6-7, ECF 21; 1ROP at 25 (1Bates 31). In response to an April 2007 Vacancy Announcement, Plaintiff submitted an application for the position of Director of the Office of the Secretary General of the OSCE. 1ROP at 25 (1Bates 31). The OSCE selected Plaintiff for the position and informed the Department’s Director General of the Foreign Service and Director of Human Resources (“Director General”) of this selection in a letter dated May 7, 2007. 1ROP at 290 (1Bates 296). On July 23, 2007, the Director General informed the OSCE that the Department supported Plaintiff’s selection and indicated that Plaintiff would be “seconded” to the OSCE for two years with the possibility of a one-year extension. Id. After he was accepted for this position at the OSCE, Plaintiff and various personnel in the Department’s Bureaus of European Affairs, International Organization Affairs, and Human Resources discussed the method by which the assignment would be effected. 1ROP at 693-697, 766 (1Bates 699-702, 772). The Department determined that Plaintiff’s assignment to the OSCE Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 6 of 29 4 was properly effectuated via a separation and transfer from the Department (referred to as a “secondment” for internal Departmental HR purposes), where Plaintiff would separate his employment with and transfer from the Department to the OSCE but retain re-employment rights at the Department at the conclusion of his employment with the OSCE (rather than via a “detail,” wherein Plaintiff would remain an employee of the Department but perform work for the OSCE). Id. Subsequent Directors General approved extensions of Plaintiff’s “secondment” in July 2009 for two years (1ROP at 291 (1Bates 297)) and in April 2011 for an additional six months (1ROP at 292 (1Bates 298)). As a result, Plaintiff served in the position of Director of the Office of the Secretary General at the OSCE from September 2007 through March 2012, and was re- employed by the Department in June 2012. 1ROP at 199 (1Bates 205); Amended Compl. ¶ 19, ECF 21. B. Plaintiff Files His First Grievance Claiming He Was Entitled to Benefits In Connection With His Assignment to the OSCE. Plaintiff was ineligible to file a grievance while he remained an employee of the OSCE and separated from the Department. 1ROP at 767 (1Bates 773). Having exercised his reemployment rights with the Department in June 2012 following the end of his second extension with the OSCE, Plaintiff filed his First Grievance with the Department on August 7, 2012. 1ROP at 24-35, 767- 768 (1Bates 30-41, 773-774). In his agency-level grievance, Plaintiff complained that he was not provided certain benefits to which he was entitled in connection with his separation from the Department and transfer to the OSCE. 1ROP at 24-25 (1Bates 30-31). Specifically, Plaintiff argued (i) that the terms of the separation agreement used to implement his separation and transfer from the Department entitled him to consideration for promotion within the Department’s Foreign Service while serving at the OSCE, (ii) that he did not receive such consideration, and (iii) that the Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 7 of 29 5 Department should have instead processed his “secondment” to the OSCE as a “detail” instead of a separation and transfer. Id. In that First Grievance, Plaintiff requested that he be allowed to place evaluative material covering his time at the OSCE into his file; that he receive reconstituted selection boards for 2008 through 2012 for purposes of consideration for promotion; and that any promotion effectuated by any such reconstituted selection board be made retroactive to the date of the original selection board with back pay and interest. 1ROP at 34 (1Bates 40). On November 20, 2012, the Department denied Plaintiff’s First Grievance. 1ROP at 199-203 (1Bates 205 – 209). C. Plaintiff Appeals the Denial of His First Grievance to the FSGB. Plaintiff appealed the denial of his First Grievance to the FSGB on January 10, 2013. 1ROP at 3-22 (1Bates 9-28). In that appeal, Plaintiff complained of certain alleged errors in connection with his assignment to the OSCE via separation and transfer from the Department. Specifically, Plaintiff complained that the Department improperly processed his 2007 assignment to the OSCE as a separation and transfer rather than a detail, failed to provide him with certain promotion consideration, and failed to take corrective action when the matter was brought to the Department’s attention. 1ROP at 328 (1Bates 334). In addition to the relief requested at the Agency level relating to promotion consideration, Plaintiff also sought reimbursement of housing expenses that he incurred while assigned to the OSCE, as well as sick leave and home leave that he would have accrued if his “secondment” had been effectuated via a detail rather than a separation and transfer. 1ROP at 340 (1Bates 346). On March 19, 2014, the Board denied Plaintiff’s appeal of the First Grievance in its entirety. 1 ROP at 763-798 (1Bates 769-804). D. Plaintiff Requests Reconsideration of the Board’s Decision Denying His Appeal of His First Grievance. On April 16, 2014, Plaintiff filed a Request for Reconsideration of the FSGB’s March 19, 2014, decision, arguing that the Board committed reversible error and that Plaintiff possessed Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 8 of 29 6 purported “newly discovered or previously unavailable evidence” that warranted reconsideration. 1ROP(-R) at 2-76 (1Bates 812-886). Plaintiff argued, inter alia, that the Board erred in finding that he was properly excluded from promotion consideration under the Procedural Precepts (hereinafter “precepts”) because the precepts conflicted with 5 C.F.R. § 352.314(a), which purportedly entitled him to consideration for promotion during his time at OSCE: c. Failure to Comply with 5 CFR § 352.314(a) The Board found that Grievant had been properly excluded from promotion consideration under Part I(B)(7)(k) of the Procedural Precepts, and that “[t]he exclusion and exception to exclusion are part of published agency policy that is not contrary to law, regulation, or collective bargaining agreement.” Decision at 27. See also id. at 26 (“Certain separated/transferred members of the Foreign Service (MFO employees) are specifically eligible for promotion review under the Precepts, but certain other separated/transferred employees (at other international organizations) are not.” This is a clear error of fact and of law because the portion of the Precepts relied upon by the Board, Part IB(7)(k), is directly contrary to 5 C.F.R. § 352.314(a), which provided that “[each] agency shall consider each employee detailed or transferred to an international organization for all promotions for which he would be considered were he not absent” (emphasis added). The Board gave precedence to the Precepts over the explicit terms of Grievant’s separation/transfer package on the ground that the former had greater legal force than the latter. While that may be true, it is equally true that duly promulgated laws and regulations have greater legal force than the Precepts, to the extent – as is the case here – they conflict. 1 ROP(R) at 10-11 (Bates 820-821). Plaintiff also argued that the Department failed to comply with Executive Order 11552 and 5 U.S.C. § 8432(c), which address circumstances in which an agency should give consideration to qualifications acquired during service with an international organization when determining the position and grade to which an employee is assigned upon his reemployment with the agency, and that this alleged failure constituted “further evidence that the manner in which the Department processed Grievant’s assignment in 2007 constituted a regulatory violation. 1 ROP(R) at 12 (Bates Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 9 of 29 7 822). Specifically, Plaintiff quoted from the following section of the aforementioned Executive Order: “[u]pon return of an employee to his agency, the agency shall give due consideration to the employee’s overall qualifications, including those which may have been acquired during his service with the international organization in determining the position and grade in which he is reemployed” 1 ROP(R) at 13 (Bates 823)(emphasis added). E. Plaintiff Files His Second Grievance Again Seeking Benefits In Connection With His Separation and Transfer to the OSCE and Appeals this Second Grievance to the Board. On April 21, 2014 – five days after filing his Request for Reconsideration in the First Grievance – Plaintiff filed his Second Grievance, arguing that he was entitled to certain benefits as a consequence of his separation and transfer to the OSCE. 2ROP at 10-14 (2Bates 11-15). Specifically, Plaintiff alleged in the Second Grievance that the Agency: (1) failed to comply with 5 C.F.R. § 352.314(a) when it did not consider Plaintiff for promotion during the period of time when he was separated and transferred from the Department to the OSCE; (2) acted inconsistently with Executive Order 11552 and 5 U.S.C. §3584 when it allegedly failed to give sufficient consideration to Plaintiff’s qualifications gained during his service with the OSCE when determining the position and grade to which he was assigned upon his reemployment with the Agency; (3) violated 5 U.S.C. §8432(c) when the Agency failed to provide Plaintiff with the opportunity to make up the Thrift Savings Plan (hereinafter “TSP”) contributions missed during his service with the OSCE and to reimburse him for any missed Agency basic and matching TSP contributions; and (4) failed to reimburse Plaintiff for housing expenses incurred when Plaintiff was separated and transferred from the Department and employed by the OSCE. 2ROP at 11-13 (2Bates 12-14). Plaintiff sought as remedies an upward adjustment of his grade level, recovery of Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 10 of 29 8 missed TSP contributions and earnings, and reimbursement of housing expenses. 2ROP at 13-14 (2Bates 14-15). This Second Grievance was based on the same set of underlying factual circumstances as the First Grievance, i.e., Plaintiff’s separation and transfer to the OSCE and his subsequent reemployment with the Department. See 2ROP at 10 (2Bates 11) (“[The present grievance assumes] that the 2007 assignment was…a legitimate separation/transfer under 5 U.S.C. §3582 and 3 FAM 2115.5. Under these assumptions, the Department committed at least three separate statutory, regulatory and policy violations in processing [Plaintiff’s] June 2012 reemployment following the completion of his service with the OSCE.”). Additionally, the Second Grievance also relied upon many of the same legal authorities that Plaintiff cited in his Request for Reconsideration of the Board’s Decision on his First Grievance. For example, like the Request for Reconsideration in the First Grievance, the Second Grievance alleged that the Department violated the requirement in 5 C.F.R. § 352.314(a) that “[e]ach agency shall consider each employee detailed or transferred to an international organization for all promotions for which he would be considered were he not absent.” See 2ROP at 10-11 (Bates 11-12) (emphasis added by Plaintiff). And it alleged an identical violation of Executive Order 11552 and 5 U.S.C. § 3584, quoting the same provision from the Executive Order requiring that: “[u]pon return of an employee to his agency, the agency shall give due consideration to the employee’s overall qualifications, including those which may have been acquired during his service with the international organization, in determining the position and grade in which he is reemployed[.]” 2ROP at 10- 12 (Bates 11-13) (emphasis added by Plaintiff). Only this time, instead of citing these authorities in support of arguments that the Board’s Decision in the First Grievance was erroneous (as Plaintiff did in his Request for Reconsideration of the Board’s decision on the First Grievance), Plaintiff Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 11 of 29 9 relied upon them as independent bases for an entitlement to benefits that he claimed he should have received a result of his separation and transfer from the Department to the OSCE. Furthermore, as he did in the First Grievance, Plaintiff requested reimbursement for housing expenses incurred during his assignment to the OSCE, and added a new claim seeking the opportunity to make up TSP contributions that he did not make while working at the OSCE. 2ROP at 13-14 (Bates 14-15). On July 21, 2014, Plaintiff appealed his Second Grievance directly to the FSGB, after waiting the required 90 days for an Agency-level decision.4 2ROP at 4-43 (2Bates 5-44); Amended Compl. ¶ 35, ECF 21. F. The Board Grants the Department’s Motion to Dismiss the Second Grievance. On August 5, 2014, the Department filed its Motion to Dismiss or Stay Proceedings (“Motion to Dismiss”) in the Second Grievance arguing, among other things, that Plaintiff’s second grievance appeal should be dismissed under the common-law doctrine of claim preclusion. 2ROP at 56-63 (2Bates 57-64).5 On September 24, 2015, the Board dismissed Plaintiff’s Second Grievance based on the common-law doctrine of claim preclusion: We are not persuaded by grievant’s claims that the facts in the instant grievance are distinct and apart from those he cited during his first grievance. First, he argues that the subject of the first grievance is the July 2007 assignment to the OSCE, and that the focus of the second grievance is the Department’s “failure to award [him] benefits that should have accompanied his re-employment in June 2012 at the conclusion of that assignment.” We are not convinced that the two claims are separate and distinct for two reasons: 1) the right to re-employment and any claim 4 As noted supra at 2, the Department stayed its investigation and processing of the Second Grievance pending the Board’s decision on Plaintiff’s Request for Reconsideration on the First Grievance, given the interrelation of the two grievances. 5 In the administrative proceedings below, the Department asserted that “the claims set out in [Plaintiff’s] Second Grievance [were] based on the same set of…transactions and facts that formed the basis of his claims in the First Grievance[,]” i.e., Plaintiff’s separation and transfer to the OSCE and subsequent reemployment with the Department, and thus “the ‘facts essential’ to the Second Grievance were present in the First Grievance.” 2ROP at 62 (2Bates 63). As such, the Department argued, Plaintiff was obligated under the doctrine of claim preclusion to plead the claims asserted in the Second Grievance as claims brought in the alternative in his First Grievance, and thus should not be permitted to pursue them in the subsequent proceeding. 2ROP at 62 (2Bates 63). Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 12 of 29 10 of benefits resulting from this right derive from the same separation/transfer action common to both grievances; without establishing in the first grievance that he claimed and was granted reinstatement to the Foreign Service (in 2012) – pursuant to the separation/transfer agreement – he would not have been able to pursue requests for relief in the first grievance; also, without exercising his re-employment rights, he would not have been able to bring any claim against the agency; 2) we reject grievant’s apparent rationale that the Board’s denial of his claims in [the First Grievance] gave rise to claims presented in the instant grievance; the Board’s decision in the first grievance has no bearing on additional arguments he could have made in presenting his claims during that grievance concerning his allegations that the Department failed to award him certain benefits he felt he should have received upon his re-employment with the agency in June 2012. He freely chose not to make those arguments in presenting the first grievance at the agency level and subsequently on appeal to the Board. There is no new information available to grievant now – except that the Board has denied his first grievance and his motion to reconsider its Decision – that was not available to grievant when he brought his first grievance. He was obligated under the doctrine of collateral estoppel (claim preclusion), therefore, to bring all of his claims that relate to the same series of events during the first grievance. Grievant is precluded from making additional claims in a new grievance, based on those same facts that form the basis of the first grievance, after the Board reached a decision denying that grievance. To permit this would be tantamount to seeking a second Board reconsideration of the first grievance, without grievant having met the criteria for reconsideration as set forth in 22 U.S.C. 4136(9) and CFR 910.1. Grievant argues that the “alleged violations of statute, regulation and published agency policy in connection with his 2012 re-employment have heretofore neither been challenged nor adjudicated.” We do not dispute this claim, or that he raised these particular concerns for the first time in his motion to this Board to reconsider our Decision in the first grievance. The point is that these same arguments were available to him when he presented the first grievance at the agency level and when he appealed to this Board. In both instances, grievant chose not to avail himself of the opportunity to make those arguments. He asserts now that the instant grievance is “asking the Department to address violations of statute, regulation and published agency policy created by the Board’s finding” (in [the First Grievance]), an assertion with which we disagree. As the Department noted in its Rebuttal to Opposition to Motion to Dismiss, August 25, 2014, the Board’s Decision in the first grievance, contrary to grievant’s assertions, did not create any new facts; it simply “left undisturbed” the agency’s original decision to separate/transfer grievant to the OSCE. Grievant followed this original decision by accepting the assignment to OSCE, extending twice in the position, and by exercising his right of re- employment with the Department five years later. Grievant had the opportunity, and even the obligation under the doctrine of collateral estoppel, to raise during his argument of his first grievance any and all claims he had concerning Department violations of any kind that he deemed to flow from the separation/transfer action. As he failed to raise these claims in FSGB 2013-005 until after the Board issued its Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 13 of 29 11 Decision, he is barred from filing a new grievance now, based on the same underlying facts. 2ROP at 110-11 (2Bates 111-12). Accordingly, the Board dismissed the Second Grievance. 2ROP at 102-113 (2Bates 103-114). Thereafter, Plaintiff requested judicial review of the FSGB’s final action by this Court. See Amended Compl., ECF 21. III. ARGUMENT Plaintiff asks this Court to set aside the FSGB’s final action on the basis that the decision was “Arbitrary, Capricious, and Otherwise Not In Accordance with Law” and because “The FSGB Failed to Consider All Relevant Evidence in the Record and Provide a Reasonable Explanation for its Decision to Dismiss the New Grievance” Amended Compl. Count III, ECF 21. He advances two arguments in support of his arbitrary and capricious claim. First, Plaintiff asserts that he could not have previously filed the Second Grievance seeking the benefits he now claims he was entitled to following his re-employment “until it became clear that the Department would deny him those benefits following his re-employment[,]” and that Plaintiff’s Second Grievance was brought, in essence, “to enforce the Board’s findings in the [First Grievance], not to relitigate them.” Id. at ¶ 47. Second, Plaintiff contends that, by dismissing the Second Grievance pursuant to the common- law doctrine of claim preclusion without applying a test applicable to a different common-law doctrine not implicated here (issue preclusion), the FSGB deviated from a prior decision without explanation. Id. at ¶ 48. Additionally, Plaintiff alleges that the FSGB’s decision should be overturned because the Board failed to consider all relevant evidence in the record or to provide a reasonable explanation for its decision to dismiss the Second Grievance. See Amended Compl., Count IV, ECF 21. This claim appears to be based on a contention that the Board should have Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 14 of 29 12 addressed the merits of the very claims it found were barred by claim preclusion. Id. at ¶ 49 (emphasis in the original). Plaintiff’s quest to pursue additional claims based on the same set of underlying facts at issue in the claims he unsuccessfully pursued in his First Grievance should be denied. The FSGB, in a thorough, well-reasoned, and amply supported Order of Dismissal, fully assessed the arguments presented by the parties with respect to the issue of claim preclusion presented in the Motion to Dismiss and found that the motion should be granted. Its decision to do so was neither arbitrary and capricious, nor contrary to law. Plaintiff’s faulty argument that he could not have filed the Second Grievance “regarding the benefits denied to him following his re-employment until it became clear that the Department would deny him those benefits following his re-employment” does not constitute a ground sufficient to avoid the reach of claim preclusion here, nor to establish that the Board’s decision was arbitrary, capricious, or otherwise not in accordance with law. As the Board noted in its well- reasoned Order of Dismissal, the Board’s decision in the First Grievance merely left the original decision to effectuate his assignment to the OSCE as a separation and transfer undisturbed, and therefore Plaintiff could have pursued in his First Grievance the benefits he now claims in his Second Grievance to be owed as a result of that separation and transfer action. He did not do so and, thus, the Board properly determined that he was barred from pursuing those benefits in his subsequent Second Grievance. Plaintiff’s other arguments likewise fail. As an initial matter, his claim that the FSGB never before applied claim preclusion to dismiss a grievance and that it erred by not instead applying the elements of a different common-law doctrine – issue preclusion – during its analysis of whether the Second Grievance should be dismissed, as it was not raised or exhausted Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 15 of 29 13 during the administrative proceedings below and therefore cannot be considered by the Court. Further, even if his arguments in this regard were not barred, they would fail on the merits because Plaintiff has failed to cite any Board precedent that conflicts with its decision to dismiss his claims or to otherwise demonstrate that the Board’s dismissal was arbitrary or capricious or otherwise not in accordance with law. Finally, the Court may easily dispense with Plaintiff’s final claim that the FSGB failed to consider all relevant evidence in the record and provide a reasonable explanation for its decision to dismiss the Second Grievance when it did not require the Department to provide the benefits that Plaintiff sought in the Second Grievance. Plaintiff has not – and cannot – identify any specific evidence that the Board failed to consider in issuing its Order of Dismissal dismissing Plaintiff’s Second Grievance on the grounds of claim preclusion. To the extent that Plaintiff is arguing that the Board failed to consider all relevant evidence in the record because it dismissed Plaintiff’s Second Grievance on the grounds of the common-law doctrine of claim preclusion and declined to review the merits of Plaintiff’s claims in this Second Grievance, the very nature of the dismissal of Plaintiff’s claims on the ground of claim preclusion – as the name of the doctrine suggests – precluded the Board from even considering the merits of those claims, much less awarding any relief sought in connection with them. The Board’s decision to dismiss Plaintiff’s Second Grievance was well-reasoned and was not arbitrary or capricious. As such, this Court should reject Plaintiff’s arguments, affirm the FSGB’s order dismissing the Second Grievance under the highly deferential standard of review set forth in the APA, and grant summary judgment for the Department, because there remains no genuine issue of material fact. Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 16 of 29 14 A. Legal Standard 1. Summary Judgment Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is ordinarily appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). “However, in cases such as this one, that involve the review of a final agency action, the Rule 56 standard does not apply.” Memorandum Opinion and Order at 9, ECF 42 (citing Stuttering Found. of Am. v. Springer, 498 F. Supp. 2d 203, 207 (D.D.C. 2007). “Instead, ‘the district judge sits as an appellate tribunal’ and ‘[t]he ‘entire case’ on review is a question of law.’” Id. (quoting Am. Biosci. Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (citing cases). “‘[T]he court’s review is limited to the administrative record,’ Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995) (citing Camp v. Pitts, 411 U.S. 138, 142 (1973)), and its role is limited to ‘determin[ing] whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did,’ see Sierra Club v. Mainella, 459 F. Supp. 2d 76, 90 (D.D.C. 2006) (internal quotation marks omitted).” Id. 2. Administrative Procedure Act “The Foreign Service Act provides that the [Administrative Procedure Act] shall apply without limitation or exception to a district court’s review of a decision by the FSGB.” Olson v. Clinton, 602 F. Supp. 2d 93, 100 (D.D.C. 2009) (internal citations and quotations omitted). Under the APA, an agency’s action can only be set aside by the court if the action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 17 of 29 15 706(2)(A). This is a highly deferential standard of review, as the court is not to substitute its judgment for that of the agency. See e.g., Bloch v. Powell, 348 F.3d 1060, 1070 (D.C. Cir. 2003) (internal citations and quotations omitted). When a party seeks review of an agency action under the APA, “[t]he entire case on review is a question of law, and only a question of law,” and can be resolved on the administrative record in the context of a motion for summary judgment. Marshall Cnty Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993). For review of a final agency action under the APA, “it is the role of the agency to resolve factual issues,” and the district court “is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Baltimore v. Clinton, 900 F. Supp. 2d 21, 25 (D.D.C. 2012) (internal citations omitted). To survive judicial scrutiny, a FSGB decision need only “evince a rational connection between the facts found and the choice made” and not be “wholly unsupported by the evidence in the record.” Olson, 602 F. Supp. 2d at 100 (internal citations and quotations omitted). Judicial review should focus on “the administrative record already in existence, not some new record made initially in the reviewing court.”Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743 (1985) (quoting Camp, 411 U.S. at 142). Further, the administrative record need not include explicit discussion of every factor relevant to the agency’s decision, so long as the bases for the agency’s choices are otherwise clear from the nature and context of the challenged action. See Domtar Main Corp. v. F.E.R.C., 347 F.3d, 311-12 (D.C. Cir. 2003). “If the agency’s reasons and policy choices…conform to certain minimal standards of rationality…the [agency decision] is reasonable and must be upheld.” Olson v. Clinton, 602 F. Supp. 2d at 100 (internal quotations and citations omitted). The court should “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 18 of 29 16 Sys., Inc., 419 U.S. 281, 285-86, 95 (1974) (internal citation omitted). Indeed, the Court of Appeals has held, with regard to the FSGB specifically, that “Congress’ decision to restrict [judicial] review to an ‘arbitrary and capricious’ standard reflects a legislative judgment that the [FSGB]’s familiarity with the foreign service ought to be respected by the judiciary.” United States v. Paddack, 825 F.2d 504, 514 (D.C. Cir. 1987). Summary judgment in this case thus serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review. See Richards v. Immigration & Naturalization Serv., 554 F.2d 1173, 1177 n. 28 (D.C. Cir. 1977); see also Fla. Power & Light, 470 U.S. at 743, (“The task of the reviewing court is to apply the appropriate APA standard of review to the agency decision based on the record the agency presents to the reviewing court.”). B. The Court Should Uphold the FSGB’s Dismissal of the Second Grievance 1. The FSGB’s Decision To Dismiss the Second Grievance On the Ground of Claim Preclusion Is Not Arbitrary, Capricious, or Contrary to Law (Count III). As detailed below, the FSGB’s conclusions and determinations regarding the claims and evidence presented to it by Plaintiff and by the Department are rationally connected to the facts and well-supported by the evidence. As such, and because the FSGB’s decision falls well within the grounds of reasonableness, this Court should grant Defendant’s Motion for Summary Judgment. See Bloch, 348 F.3d at 1068. “Application of the ‘arbitrary and capricious’ standard requires courts to determine whether the action at issue was based on ‘reasoned analysis.’” Memorandum Opinion and Order at 10, ECF 42 (quoting Motor Vehicle Mfrs. Ass’n of U.S. Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 56-57 (1983)). “Generally, an agency has engaged in reasoned analysis when the administrative record indicates it ‘examine[d] the relevant data and articulate[d] a satisfactory Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 19 of 29 17 explanation for its action including a ‘rational connection between the facts found and the choice made.’’” Id. (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 158 (1962))). “This standard is not ‘particularly demanding,’ Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993), and a reviewing court may ‘uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned,’ Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974).” Id. “If the agency’s reasons and policy choices…conform to certain minimal standards of rationality…the [agency decision] is reasonable and must be upheld.” Olson, 602 F. Supp. 2d at 100 (internal quotations and citations omitted). Here, even a cursory review of the Board’s Order of Dismissal evidences an obvious and rational connection between the facts found and the decision made by the Board. As is demonstrated by the FSGB’s detailed Order of Dismissal, which, inter alia, summarized the positions of both parties, the Board conducted a thorough and detailed analysis of the parties’ arguments relating to the doctrines of claim preclusion and judicial estoppel, and found Plaintiff’s arguments to be unconvincing.6 2ROP at 102-13 (2Bates 103-14). The Board then made and explained its determinations on the essential matters in dispute. Specifically, having reviewed the submissions by both parties, the Board, whose panel members also sat on the panel that denied Plaintiff’s Request for Reconsideration of the Board’s decision on the First Grievance, and were thus familiar with the facts in both of Plaintiff’s grievances, rationally determined that the essential facts underlying each grievance were indeed the same, that no material new information was available to Plaintiff at the time that he brought his Second 6 The Board also summarized the parties’ arguments relating to Section 1109 of the Foreign Service Act, but determined that it did not need to reach this issue in its decision given that Plaintiff’s Second Grievance is based on the same “underlying facts” as his First Grievance such that the common-law doctrine of clam preclusion would preclude the Board from reviewing Plaintiff’s Second Grievance. Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 20 of 29 18 Grievance that was not available to him when he brought his First Grievance, and that he was obligated under the doctrine of claim preclusion to bring all of his claims relating to the same series of events during the first grievance.7 2ROP at 109-11 (2Bates 110-12). The fact that Plaintiff disagrees with the Board’s conclusions does not make those conclusions arbitrary, capricious or an abuse of discretion. Indeed, so long as the Board’s conclusions “evince a rational connection between the facts found and the choice made” and are not “wholly unsupported by the evidence in the record,” the decision must be upheld. Olson, 602 F. Supp. 2d at 100 (internal citations and quotations omitted). In this case, the Board’s Order on Dismissal easily satisfies that standard. A. The FSGB’s Decision Regarding the Applicability of the Common-Law Doctrine of Claim Preclusion Is Not Arbitrary, Capricious, or Contrary to Law. Plaintiff appears to allege that the Board’s decision to dismiss the Second Grievance on the ground of claim preclusion was nevertheless “arbitrary, capricious and unreasonable” because he “could not have filed the new grievance regarding the benefits denied to him following his re-employment until it became clear that the Department would deny him those benefits following his re-employment” and, thus, his Second Grievance “in essence was seeking to enforce the Board’s findings in the original grievance, not to relitigate them.” See Amended Compl. ¶ 47, ECF 21. But in the Order of Dismissal, the FSGB provided a concise explanation of its decision to reject Plaintiff’s contention that he should be permitted to bring a second action to, in essence, “enforce the Board’s findings” in the First Grievance: [Plaintiff] asserts now that the instant grievance is “asking the Department to address violations of statute, regulation and published agency policy created by the Board’s finding” (in [the First Grievance]), an assertion with which we disagree. As the 7 The Board also made the rational and considered determination that the doctrine of judicial estoppel does not apply to this case, and declined to rule on the arguments related to Section 1109(a) of the Foreign Service Act as such a ruling was not necessary given the Board’s ruling on the claim preclusion issue. 2ROP at 109 (2Bates 110), 2ROP at 111-12 (2Bates 112-13). Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 21 of 29 19 Department noted in its Rebuttal to Opposition to Motion to Dismiss, August 25, 2014, the Board’s Decision in the first grievance, contrary to grievant’s assertions, did not create any new facts; it simply “left undisturbed” the agency’s original decision to separate/transfer grievant to the OSCE. Grievant followed this original decision by accepting the assignment to OSCE, extending twice in the position, and by exercising his right of re-employment with the Department five years later. Grievant had the opportunity, and even the obligation under the doctrine of collateral estoppel, to raise during his argument of his first grievance any and all claims he had concerning Department violations of any kind that he deemed to flow from the separation/transfer action. As he failed to raise these claims in [the First Grievance] until after the Board issued its Decision [in the First Grievance], he is barred from filing a new grievance now, based on the same underlying facts. 2ROP 111 (2Bates 112). The Board’s explanation as to how it arrived at its conclusion quite clearly “evince[s] a rational connection between the facts found and the choice made[,]” Olson, 602 F. Supp. 2d at 100 (internal citations and quotations omitted), and is both well-reasoned and fully supported by the record. Plaintiff also challenges the Board’s decision on the grounds that: (1) the FSGB had not previously applied claim preclusion to dismiss a grievance; and (2) in determining whether claim preclusion should be applied, the Board should have applied a four-part test applicable to issue preclusion. As shown below, Plaintiff’s arguments in this regard fail for two independently sufficient reasons. First, Plaintiff failed to raise these arguments with the Board during the administrative proceedings below and therefore has waived them on appeal. Second, the Board’s decision to apply the well-established doctrine of claim preclusion more than satisfied the minimal standards for rationality required for its decision to survive scrutiny. As an initial matter, “[t]he Court of Appeals has consistently held that courts ‘are bound to adhere to the hard and fast rule of administrative law, rooted in simple fairness, that issues not raised before an agency are waived and will not be considered by a court on review.’” Memorandum Opinion and Order at 15, ECF 42 (quoting Coburn v. McHugh, 679 F.3d 924, 929 (D.C. Cir. 2012) (internal quotation marks omitted)). “This rule ‘holds special force where, as Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 22 of 29 20 here, an appeal follows adversarial administrative proceedings in which parties are expected to present issues material to their case. In that setting, the rationale of requiring issue exhaustion is at its greatest[.]’” Id. (quoting Wallaesa v. FAA, 824 F.3d 1071, 1078 (D.C. Cir. 2016) (internal quotation marks omitted)). In applying this rule, the “waiver analysis centers on whether a party raised the ‘specific argument’ presented to the district court, and ‘not merely the same general legal issue,’ before the agency.” Id. at 16 (quoting Koretoff v. Vilsack, 707 F.3d 394, 398 (D.C. Cir. 2013). “Put another way, there must be a demonstrable ‘congruity…between a party’s arguments before an administrative agency and [a federal] court’ to support judicial review.” Id. (quoting Koretoff, 707 F.3d at 398) (internal quotation marks omitted). In his response to the Agency’s Motion to Dismiss wherein the Agency argued, inter alia, for dismissal of the Second Grievance based on the common-law doctrine of claim preclusion, Plaintiff did not raise an issue as to whether the Board was prohibited from recognizing or applying the doctrine of claim preclusion to dismiss his grievance by virtue of the fact that it had not done so in any prior case. See 2ROP at 66-78 (2Bates 67-79). To the contrary, Plaintiff urged the Board to recognize and apply a different common-law doctrine – judicial estoppel – to reject the Motion to Dismiss even though he conceded that he had been “unable to find a Decision in which the Board ha[d] applied” that particular doctrine. 2ROP 72-75 (2Bates 73- 76).8 Nor did Plaintiff assert that a prior Board decision established that each of the prerequisites for issue preclusion had to be satisfied in order to dismiss a grievance on the ground of claim preclusion. As such, Plaintiff is foreclosed from now raising for the first time in this APA proceeding the argument of whether the Board was permitted to recognize and apply the doctrine 8 The Board considered the merits of Plaintiff’s judicial estoppel argument and found it without merit, determining that the “Department’s position has been both consistent and persuasive that the underlying facts are the same in both grievances.” 2 ROP at 112 (Bates 113). Plaintiff has not challenged the Board’s rejection of his judicial estoppel argument. Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 23 of 29 21 of claim preclusion to his case without examining whether the elements of issue preclusion were established. See Nat’l Whistleblower Ctr. v. Nuclear Regulatory Comm’n, 208 F.3d 256, 265 (D.C. Cir. 2000) (holding that an argument not presented to the Commission was untimely and could not be considered by the court); Hall v. Nat’l R.R. Passenger Corp., 559 F. Supp. 2d 38, 48 (D.D.C. 2008) (waiving arguments the plaintiffs made that were not presented to the Retirement Plan Committee during the administrative review process). Further, even if Plaintiff had timely raised the propriety of the Board’s application of the common-law doctrine of claim preclusion to dismiss a grievance, he would not have been able to show that the decision by the Board to do so here constituted an abuse of discretion. The “basic legal doctrine” of claim preclusion has been summarized in the Restatement (Second) of Judgments as follows: A valid and final personal judgment rendered in favor of the defendant bars another action by the plaintiff on the same claim. …. [T]he claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. Rose v. Town of Harwich, 778 F.2d 77, 79 (1st Cir. 1985) (quoting Restatement (Second) of Judgments §§ 19, 24(1) (1980)). This fundamental common-law doctrine, also sometimes referred to as res judicata, has been recognized by a number of federal courts and administrative tribunals. See, e.g., Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981) (“The doctrine of res judicata is so familiar that it is unnecessary here to rehearse more than its bare outlines. In brief, the doctrine is designed to conserve judicial resources, avoid inconsistent results, engender respect for judgments of predictable and certain effect, and to prevent serial forum-shopping and piecemeal Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 24 of 29 22 litigation. Under the doctrine, the parties to a suit and their privies are bound by a final judgment and may not relitigate any ground for relief which they have already had an opportunity to litigate – even if they chose not to exploit that opportunity….”); Senju Pharm. Co., Ltd. v. Apotex, Inc., 746 F.3d 1344, 1348-49 (Fed. Cir. 2014); Rose, 778 F.2d at 79; Robinson v. Purcell Constr. Corp., 647 Fed. App’x. 29, 30 (2nd Cir. 2016) (Summary Order); Pittston Co. v. United States, 199 F.3d 694, 704 (4th Cir. 1999); Petro-Hunt v. United States, 365 F.3d 385, 397-98 (5th Cir. 2004); Carroll v. City of Cleveland, 522 Fed. App’x. 299, 306-07 (6th Cir. 2013); Frier v. City of Vandalia, 770 F.2d 699, 701-02 (7th Cir. 1985); Capital Promotions, L.L.C. v. Don King Prods, 527 Fed. App’x. 587, 589 (8th Cir. 2013); Stone v. Dept. of Aviation, 453 F.3d 1271, 1275 (10th Cir. 2006); Potter v. Toei Animation Co., Ltd., Civil Action No. 10-2085, 2013 WL 11248348 at *2 (TTAB August 12, 2013); Sikorsky Aircraft Corp. v. United States, 122 Fed. Cl. 711, 719-21 (August 20, 2015). In its Order of Dismissal, the Board clearly articulated the reasons why it recognized and applied the doctrine of claim preclusion in dismissing Plaintiff’s Second Grievance: [Plaintiff] was obligated under the doctrine of collateral estoppel (claim preclusion), therefore, to bring all of his claims that relate to the same series of events during the first grievance. Grievant is precluded from making additional claims in a new grievance, based on those same facts that form the basis of the first grievance, after the Board reached a decision denying that grievance. To permit this would be tantamount to seeking a second Board reconsideration for the first grievance, without grievant having met the criteria for reconsideration as set forth in 22 U.S.C. 4136(9) and CFR 910.1. 2ROP at 110 (2Bates 111) (emphasis added). This explanation easily satisfies the requirement under Olson that an agency’s “reasons and policy choices…conform to certain minimal standards of rationality][.]” See Olson, 602 F. Supp. 2d at 100. As such, the Board’s decision to recognize and apply the doctrine of claim preclusion in this matter “is reasonable and must be upheld.” Id. Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 25 of 29 23 Plaintiff’s argument that the FSGB erred because it did not apply of the elements of issue preclusion to this case wholly lacks merit. As noted by the U.S. Court of Appeals for the Sixth Circuit (discussing Ohio law), claim preclusion and issue preclusion are two “discrete doctrines” of res judicata: The former [claim preclusion] makes “an existing final judgment or decree between the parties to litigation…conclusive as to all claims which were or might have been litigated in a first lawsuit.” Nat’l Amusements, Inc. v. City of Springdale, 558 N.E.2d 1178, 1180 (Ohio 1990) (internal quotations omitted); the latter [issue preclusion] “precludes the relitigation, in a second action, of an issue that has been actually and necessarily litigated and determined in a prior action which was based on a different cause of action.” Whitehead v. Gen. Tel. Co., 254 N.E.2d 10, 13 (Ohio 1969). Carroll, 522 F. App’x at 303 (emphasis added). In the proceedings before the Board, the Department did not invoke, and Board did not consider, the doctrine of issue preclusion as a ground for dismissal.9 Rather, the FSGB dismissed the Second Grievance by applying the common -law doctrine of claim preclusion (which bars “all claims which…might have been litigated in a first lawsuit” regardless of whether a particular issue was actually raised in the initial action). As such, it cannot be said that the Board erred in eschewing an examination of whether the elements of issue preclusion were satisfied in arriving at its decision in this case. 2. The FSGB Considered All Relevant Evidence in the Record and Provided a Reasonable Explanation for its Decision to Dismiss the Second Grievance (Count IV). Plaintiff also contends that the FSGB did not consider all relevant evidence in the record and/or did not provide a reasoned explanation for its decision to Dismiss the Second Grievance 9 The Department notes that both Plaintiff and the Board appear to have, in one instance each, incorrectly referenced the matter at issue as one of “issue preclusion.” See 2 ROP at 75 (2Bates 76) (wherein Plaintiff wrongly asserted that the Department had suggested “that its notion of estoppel, issue preclusion, was adopted by the Board….”) (emphasis added); 2 ROP at 104 (2Bates 105) (in which the Board correctly described one of the substantive grounds for the motion to dismiss as that “the grievance appeal should be dismissed because grievant should bring all claims arising out of the same set of facts in a single grievance” but inaccurately identified this principle as “issue preclusion[.]”) In the discussion section of the Order, however, the Board made clear that it was applying and analyzing the common-law doctrine of “claim preclusion” in deciding whether to dismiss the Second Grievance. See 2ROP at 109-111 (2 Bates 110-112). Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 26 of 29 24 when it dismissed the Second Grievance without requiring the Department “to provide those benefits specifically guaranteed by law to those employees in the status (re-employment following a separation/transfer to an international organization) it had found applied to him.” Amended Compl. ¶ 49, ECF 21. As such, Plaintiff is effectively arguing that the Board erred by failing to rule in his favor on, and award him the relief requested in connection with, the claims for benefits that he brought in the Second Grievance. Plaintiff does not clarify what type of “evidence” he alleges was not properly evaluated by the Board – perhaps because he cannot. Further, an agency need not include explicit discussions of every factor that is irrelevant to its decision as long as the bases for the agency’s policy choices are otherwise clear from the nature and context of the challenged action.10 In addition, the Court should not “substitute its judgment for that of the agency” about the proper weight to be given different sections of the administrative record.11 To the extent that Plaintiff is alleging that the Board’s decision to dismiss Plaintiff’s Second Grievance is not well-reasoned or did not properly consider relevant evidence in this matter, such an argument must fail for the reasons described in Section II.B.1 above. Furthermore, when the Board decided to dismiss Plaintiff’s Second Grievance on the grounds of the doctrine of claim preclusion, the Board properly refrained from addressing the merits of that dismissed claim. As discussed above, “[o]ne purpose of claim preclusion is to compel litigants to bring all related claims in a single lawsuit.” Hawthorne-Burdine v. Oakland 10 See Domtar Maine Corp. v. Fed. Energy Regulatory Comm’n, 347 F.3d 304, 312 (D.C. Cir. 2003) (upholding agency decision supported by a reasonable framework even where agency “does not explicitly advance this framework”); see also Olson v. Clinton, 602 F. Supp. 2d 93, 100 (D.D.C. 2009), aff’d, 409 Fed. App’x 359 (D.C. Cir. 2011) (“If the agency’s reasons and policy choices . . . conform to certain minimal standards of rationality . . . the [agency decision] is reasonable and must be upheld.”) (internal citations omitted). 11 Reiner v. United States, 686 F.2d 1017, 1024 (D.C. Cir. 1982); see also Ackerman v. United States, 324 F. Supp. 2d 1, 6-8 (D.D.C. 2004) (declining to “second-guess” the FSGB’s decision to ascribe more importance to some parts of the record than others). Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 27 of 29 25 Univ., 2016 WL 319523, 117 LRP 5448 (E.D. Mich. Feb. 14, 2017) (citing Heike v. Cent. Mich. Univ. Bd. Of Trustees, 573 F. App’x 476, 482 (6th Cir. 2014) (citing Wilkins v. Jakeway, 183 F.3d 528, 532 n.4 (6th Cir. 1999)). “Thus, this element of claim preclusion bars not only claims already brought, but also claims that should have been brought in the original action.” Id. (Emphasis added). Having found that Plaintiff was barred under the doctrine of claim preclusion from pursuing the claims set out in the Second Grievance seeking benefits allegedly owed to him as a result of his separation and transfer because those claims should have been brought in the First Grievance, the Board was, of course, precluded from considering the merits of those claims (much less awarding the relief Plaintiff sought in connection with them). As such, this argument wholly lacks merit and should be summarily dismissed. IV. CONCLUSION For the foregoing reasons, the Court should grant the Department’s Motion for Summary Judgment, and Counts III and IV of Plaintiff’s Amended Complaint should be dismissed in their entirety, with prejudice. Respectfully submitted, CHANNING D. PHILLIPS, DC Bar #415793 United States Attorney for the District of Columbia DANIEL F. VAN HORN, DC Bar # 924092 Chief, Civil Division _____________________________ Patricia K. McBride, PA Bar #54561 Assistant United States Attorney Civil Division 555 4th Street, NW, Room E-4808 Washington, DC 20530 Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 28 of 29 26 Tel: 202-252-7123 Fax: 202-252-2599 Email: Patricia.McBride@usdoj.gov Attorneys for Defendant Case 1:15-cv-00430-APM Document 46 Filed 05/17/17 Page 29 of 29