United States Department of State v. G. Craig Coombs

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 15, 2007 Decided April 6, 2007
No. 06-5114
UNITED STATES DEPARTMENT OF STATE ,
APPELLANT
v.
G. CRAIG COOMBS ,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 04cv00025)
Tara Leigh Grove, Attorney, U.S. Department of Justice,
argued the cause for appellant. With her on the briefs were
Peter D. Keisler, Assistant Attorney General, Jeffrey A. Taylor,
U.S. Attorney, and Marleigh D. Dover, Attorney. Herbert E.
Forrest, Attorney, entered an appearance.
Bridget R. Mugane argued the cause and filed the brief for
appellee.
Before: G ARLAND and KAVANAUGH , Circuit Judges, and
SILBERMAN , Senior Circuit Judge.

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Opinion for the Court filed by Senior Circuit Judge
SILBERMAN .
SILBERMAN , Senior Circuit Judge: The United States
Department of State appeals the district court’s grant of appellee
G. Craig Coombs’s motion for summary judgment. In the
district court, State challenged a decision of the Foreign Service
Grievance Board (“FSGB” or “Board”) granting relief to
Coombs. The district court, reviewing the Board’s decision
under the Administrative Procedure Act, denied State’s appeal.
We reverse.
I
Coombs joined State in 1990 and, in 1998, was assigned to
be an administrative and consular officer at the United States
Consulate General in Surabaya, Indonesia. Coombs’s year 2000
employee evaluation report (“EER”) was critical of his
performance in Surabaya and did not recommend him for
promotion. Based on the 2000 EER, Coombs was “low-ranked”
by the Selection Board, which competitively evaluates Foreign
Service officers across each class. As a result, Coombs was
referred to the Performance Standards Board (“PSB”) for
consideration for selection out of the Foreign Service. The PSB
recommended that Coombs be selected out of the Foreign
Service, and State notified Coombs of his impending separation
in February 2001. Soon thereafter, State’s regional medical
officer, Dr. Riesland, learned from Coombs’s colleagues at the
Surabaya consulate that Coombs was exhibiting troubling
behavioral problems. Under the (apparently false) impression
that Coombs was still waiting to undergo a performance review,
Dr. Riesland arranged for Coombs to meet with State’s regional
psychiatrist, Dr. Lauer, for a clinical interview. After a two and
a half hour examination, Dr. Lauer determined that Coombs had
“no discernible pathology other than probable characterological

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issues.” Dr. Lauer observed that “no psychiatric medication
seems indicated at present.”
Coombs submitted an amended agency-level grievance in
May 2001 contesting his separation. His grievance contained an
affidavit from Dr. Bristol, a board-certified psychiatrist
unaffiliated with State, who, having reviewed prior EERs for
Coombs, diagnosed him with Obsessive-Compulsive Personality
Disorder and Acute Adjustment Disorder during the time period
covered by the 2000 EER. According to Dr. Bristol’s affidavit,
Coombs’s personality disorders became “exaggerated and
dysfunctional” due to the stress of his difficult work
environment in Surabaya. Coombs, relying on this affidavit,
argued that the 2000 EER was “falsely prejudicial” under the
terms of the Foreign Service Act (“FSA”), see 22 U.S.C.
§ 4131(a)(1)(A), (E), because it was based on behavior
attributable to Coombs’s undiagnosed mental illness. State
denied Coombs’s agency-level grievance on September 21,
2001.
Coombs appealed the agency-level decision on his
grievance to the FSGB. In the proceeding before the Board,
State disputed Coombs’s claim of mental disability and pointed
to the psychiatric examination performed by Dr. Lauer, wherein
Lauer attributed Coombs’s behavior to “character problems.”
On January 27, 2003, the Board issued its decision, FSGB Case
No. 2001-34, stating, inter alia, that Coombs’s poor
performance was in fact behavior attributable to psychiatric
illness, that the EER based on his poor performance was falsely
prejudicial, and that State’s ignorance of Coombs’s condition
furnished even greater cause to set aside his 2000 EER. In
arriving at its decision, the Board had determined that Dr.
Bristol’s findings were more credible than those of Dr. Lauer
because Bristol’s familiarity with Coombs’s condition was of
longer duration than Lauer’s, and because Bristol’s explanation

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1 In denying Coombs’s second grievance, State noted that it had
requested reconsideration of FSGB Case No. 2001-34, which request
was still before the Board.
of Coombs’s behavior was far more detailed and persuasive.
Along with other collateral relief, the Board ordered State to
rescind Coombs’s proposed separation, to expunge his 2000
EER, and to provide him with an appropriate regular assignment
unless he was “medically disqualified.” State then requested
that the Board reconsider its decision, but the Board rejected
State’s arguments for reconsideration.
Prior to the Board’s decision in Case No. 2001-34 (i.e.,
Coombs’s original grievance appeal), Coombs received another
unsatisfactory rating in his 2001 EER. Coombs then filed a
second agency-level grievance with respect to the 2001 report,
alleging that it was falsely prejudicial for the same reasons the
2000 EER had been deemed so. State denied Coombs’s second
agency-level grievance.1 Coombs appealed State’s decision to
the FSGB, and the Board, relying on its determination in Case
No. 2001-34, decided the 2001 EER was (also) falsely
prejudicial. As relief, the Board ordered that the EER be
expunged and that any adverse decision based on the EER be
rescinded.
State then sought review of the Board’s decisions with
respect to the 2000 and 2001 EERs in federal district court.
Coombs moved for judgment on the pleadings, and State cross-
moved for summary judgment. The district court, treating
Coombs’s motion as one for summary judgment, granted it.
State’s motion was denied.
II

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2 The FSA provides, in relevant part:
(a)(1) Except as provided in subsection (b) of this section, for
purposes of this subchapter, the term “grievance” means any act,
omission, or condition subject to the control of the Secretary
which is alleged to deprive a member of the [Foreign] 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;
. . .
(E) alleged inaccuracy, omission, error, or falsely prejudicial
character of information in the official personnel record of the
member which is or could be prejudicial to the member;
. . .
(H) any discrimination prohibited by—
. . .
(iii) section 791 of Title 29 . . . .
State objects to the Board’s determination on two grounds.
First, it is argued that Coombs, by asserting the EERs were
“falsely prejudicial” under § 4131(a)(1)(A) and (E), is really
making a claim for disability discrimination pursuant to
§ 4131(a)(1)(H)(iii), which allows Foreign Service officers to
bring a grievance for any discrimination prohibited by the
Rehabilitation Act.2 Under the Rehabilitation Act, a government

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22 U.S.C. § 4131.
employee has a valid claim only if he or she can show, inter
alia, that the employer knew or had reason to know about the
employee’s alleged impairment when it made an adverse
employment decision. See 29 U.S.C. § 791(g); 42 U.S.C. §
12112(a); Crandall v. Paralyzed Veterans of Am., 146 F.3d 894,
896-97 (D.C. Cir. 1998). Although Coombs’s grievance
explicitly listed the Rehabilitation Act (as incorporated in the
FSA) as potentially providing jurisdiction over his claim, he
does not allege that State knew or had reason to know about his
alleged disability when it drafted his evaluation reports.
Moreover, even if an employer is shown to have acted with
knowledge of an employee’s disability, only “qualified”
employees—those who can perform the essential functions of
their job with (or without) “reasonable accommodation”—are
protected from discrimination. See 42 U.S.C. §§ 12111(8), (9),
12112(a). State argues that the Board, by directing the agency
to reinstate Coombs unless “medically disqualified,” has
imposed a broader obligation on State than that which the
Rehabilitation Act requires, and an obligation that is counter to
another policy of Congress—that the nation have “a career
foreign service, characterized by excellence and
professionalism,” assuring the “separation of those who do not
meet the requisite standards of performance.” 22 U.S.C. §
3901(a)(1), (b)(1).
It is State’s view that the Board has stretched its authority
under the Foreign Service Act to condemn EERs that are
“falsely prejudicial,” and in doing so has run afoul of
congressional policy set forth in the Rehabilitation Act. And if
there was any doubt as to congressional intent—which State
does not concede—it would be dispelled by the specific
inclusion of the Rehabilitation Act as one of the various
grievances a Foreign Service officer may bring under the

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3 Given State’s concession, we need not decide whether, with
respect to the FSA’s grievance provisions, we should defer to the
interpretations of the Board (and not the Secretary of State).
Foreign Service Act. See 22 U.S.C. § 4131(a)(1)(H)(iii).
Indeed, State emphasizes that Coombs explicitly relied on the
Rehabilitation Act in his initial agency-level grievance, and
again in his appeal to the Board. The Board’s treatment of his
falsely prejudicial claim as qualitatively different from a
Rehabilitation Act claim simply rewards “artful pleading,”
according to State.
As an alternative position, State argues that the Board’s
interpretation of the FSA is contrary to law. According to this
argument, the two EERs were not falsely prejudicial because
they were not in any sense “false.” The government concedes
that the Board has the primary authority to interpret the
grievance provision of the Foreign Service Act. 3 Were the
phrase ambiguous, then, the Board would be entitled to Chevron
deference, and we would uphold any reasonable interpretation
of the statute. Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 844 (1984). But State
argues that the phrase “falsely prejudicial” is in no way
susceptible to the Board’s interpretation.
We take up State’s second argument first. State argues that
the term “false” necessarily refers to an intentional
misstatement. We disagree. The word is ambiguous; it could
mean intentionally false—that may well be its more typical
usage—but it is not an inevitable meaning. “False” can also
mean simply “not true.” The Board’s adoption of the second
meaning is certainly authorized under Chevron. 467 U.S. at
843-45. However, that is not enough to bring the Board home
because, whether intentional or not, “false” does, at a minimum,
mean untrue, and nothing in either EER is contrary to fact in that

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sense. Coombs essentially argues that the EERs are incomplete
because they do not include a valid psychiatric explanation for
his behavior. But to be incomplete is not the same as being
“false”—particularly when the person completing the EER is
entirely unaware of the omitted information. Thus, the Board’s
interpretation of “falsely prejudicial” strikes us as an
impermissible interpretation of ambiguous language (Chevron
Step II).
We are puzzled, however, because the Foreign Service Act
also authorizes the Board to correct a grievant’s personnel
record if it finds the record is prejudicial because of an
“omission.” See 22 U.S.C. § 4131(a)(1)(E). That would seem
to be a possible statutory basis for the Board to rely on in
granting relief to Coombs. We, of course, do not so conclude
because it would be up to the Board to make that decision in the
first instance.
The more difficult issue is the interrelationship of the
Rehabilitation Act and the Foreign Service Act. State, it will be
recalled, argues that Congress’s specific attention to the
personnel problems of disabled employees “occupies the field,”
so to speak. On State’s reading of the two statutes, the
Rehabilitation Act provides the exclusive form of relief for
disabled Foreign Service officers. As a consequence, the Board
may not circumvent the Rehabilitation Act by relying on the
general grievance language of the FSA to provide relief to an
officer if that officer cannot make out a cause of action under the
Rehabilitation Act itself—either because he or she can not show
discriminatory intent, or because he or she cannot be reasonably
accommodated.
State relies heavily on Brown v. General Services
Administration, 425 U.S. 820 (1976), in which the Supreme
Court held that Title VII of the Civil Rights Act of 1964

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provides the sole judicial remedy for federal employees
complaining of job-related discrimination. In that case, the
plaintiff brought an employment discrimination claim in federal
district court after the thirty-day limitation period prescribed by
Title VII had expired. Faced with this procedural bar, plaintiff
sought to rely on other, less-onerous, anti-discrimination
remedies. Id. at 823-25. The Court refused to allow the plaintiff
to elude Title VII’s thirty-day requirement by “artful pleading.”
Id. at 833.
Coombs contends his case is quite different because he is
not asserting a discrimination claim. Indeed, he freely admits
that State had no knowledge of his disability when it created his
EER. There is no reason, according to Coombs, to read a statute
banning discrimination as implicitly prohibiting the Board from
remedying an incomplete personnel record that became the basis
of adverse employment action.
Assuming arguendo that Coombs is correct—a point we
need not decide—it seems to us that the Board’s remedy is still
problematic, as well as unexplained. In the Rehabilitation Act,
for example, Congress provided that State may knowingly
discharge a disabled employee who cannot be reasonably
accommodated, and under the Act could thus a fortiori
discharge a disabled employee who cannot be so accommodated
when State has no knowledge of the employee’s disability. Yet
the Board’s order directing Coombs’s reinstatement unless
“medically disqualified” appears to place a substantially greater
burden on State. The relief granted by the Board is, at best,
ambiguous on this point: How the term “medically disqualified”
relates to “reasonable accommodation,” the Board does not say.
In particular, it does not say whether its order would require
Coombs’s reinstatement even if he cannot perform the essential
functions of the job (even with a reasonable accommodation for
his disability).

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The Board does not appear to have even considered whether
it is reasonable to require reinstatement of such an employee, in
light of the demands of the Foreign Service. We think such an
omission makes the Board’s decision arbitrary and capricious.
We therefore vacate and remand for the Board to reconsider its
interpretation of 22 U.S.C. § 4131(a)(1)(A) and (E) and whether
its ordering Coombs’s reinstatement is appropriate in light of
both the Rehabilitation Act and the demands of the Foreign
Service. The other relief granted by the Board (i.e.,
expungement of the 2000 and 2001 EERs, insertion of gap
memoranda, extension of time to compete for promotion, and
attorney’s fees) is collateral to the Board’s decision to rescind
Coombs’s separation, and the Board should reevaluate it
accordingly.
III
For the foregoing reasons, the judgement of the district
court is reversed and the decision of the Board vacated.

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