Julie Beberman v. Secretary US Dept of State

• Court: Court of Appeals for the Third Circuit
• Decided: March 8, 2022
• Docket: 21-1566
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 21-1566 ____________

JULIE BEBERMAN, Appellant

v.

SECRETARY UNITED STATES DEPARTMENT OF STATE

____________

On Appeal from the District Court of the Virgin Islands (D.C. No. 1:20-cv-1) District Court Judge: Honorable Anne E. Thompson ____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) December 10, 2021 ____________

BEFORE: McKEE, RESTREPO and SMITH, Circuit Judges

(Filed: March 8, 2022)

OPINION* ____________

RESTREPO, Circuit Judge

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Pro se appellant Julie Beberman appeals the District Court’s grant of summary

judgment for the Secretary of State in this dispute over her right to per diem after she was

designated for separation from the Foreign Service. We will affirm.

I. Facts and Procedural History

Beberman was a Foreign Service Officer assigned to Embassy Malabo in Equatorial

Guinea when she was notified that she had been denied tenure and would be separated from

the Service at the end of her appointment. Beberman requested and received temporary

interim relief, which allowed her to remain employed while the Foreign Service Grievance

Board (“Board”) considered grievances she had filed regarding her employment and

separation. Beberman’s Separation Order, issued March 2016, required her to leave

Malabo and travel to Washington, D.C.

The U.S. Department of State’s Standard Operating Procedure (“SOP”) D-01

governs the terms of employment for people like Beberman, employees that have been

granted interim relief from separation pending the outcome of grievances they filed with

the Department. SOP D-01 mandates these employees to return to Washington, D.C. and

work in “domestic assignment[s]” until their grievances are decided. SOP D-01 dictates

that employees in Beberman’s position are not eligible for locality pay, per diem, or a home

service transfer allowance.

Beberman began working in Washington, D.C. in April 2016, but was never

formally assigned to that location. In October 2016, the Department revised SOP D-01 to

permanently assign employees like Beberman to Washington, D.C., which entitled her to

locality pay and other benefits. Accordingly, Beberman was issued a retroactive

2 assignment to Washington, D.C. and was paid locality pay for the time period of April to

November 2016.

In March 2019, Beberman filed another grievance with the State Department

claiming that she had in effect been assigned to temporary duty (“TDY”) in Washington,

D.C. before SOP D-01 was revised to make her assignment permanent.1 She claimed that,

because Foreign Service members on TDY are entitled to per diem, the State Department

owed her per diem costs for the time period of April to November 2016.2 The State

Department denied the grievance and she appealed to the Board. After the State

Department filed its response, Beberman requested that she be allowed to conduct

discovery. The Board denied her discovery request and, approximately two months later,

denied her grievance, finding that she was not temporarily detailed to Washington, D.C.

and therefore not entitled to per diem.

1 By our count, this is at least the twelfth federal lawsuit filed by Beberman relating to her employment at the State Department. See, e.g., Beberman v. U.S. Dep’t of State, No. 1:14- cv-00020 (D.V.I. May 09, 2014); Beberman v. USA, No. 1:16-cv-01006 (Fed. Cl. Aug. 15, 2016); Beberman v. U.S. Dep’t of State, No. 1:16-cv-00063 (D.V.I. Sept. 19, 2016); Beberman v. Kerry, No. 1:16-cv-02361; (D.D.C. Dec. 02, 2016); Beberman v. USA, No. 1:17-cv-00179 (Fed. Cl. Feb. 06, 2017); Beberman v. Sec’y of State Tillerson, No. 1:17- cv-00048 (D.V.I. Oct. 16, 2017); Beberman v. Tillerson, No. 1:17-cv-00061 (D.V.I. Dec. 28, 2017); Beberman v. U.S. Dep’t of State, No. 1:19-cv-3115 (D.D.C. Oct. 15, 2019); Beberman v. Sec’y of State Pompeo, No. 1:20-cv-00001 (D.V.I. Jan. 02, 2020); Beberman v. Pompeo, No. 1:20-cv-00873 (D.D.C. Mar. 30. 2020); Beberman v. Pompeo, No. CV 20- 01, 2021 WL 237691 (D.V.I. Jan. 25, 2021); Beberman v. Pompeo, No. 1:22-cv-00144 (D.D.C. Jan. 05, 2022). 2 Beberman acknowledges that, if she is successful in persuading this Court that she was on TDY from April until November 2016, she will have to return any locality pay she received for that time period due to the revision of SOP D-01.

3 Beberman filed a Petition for Review with the District Court of the Virgin Islands

pursuant to 22 U.S.C. § 4140. After examining the Board’s decision under the standards

provided by the Administrative Procedure Act (APA), see 22 U.S.C. § 4140(a)

(incorporating 5 U.S.C. § 706), the District Court affirmed the Board’s findings and granted

summary judgment for the Secretary of State. Beberman appealed to this Court. For the

reasons that follow, we will affirm the grant of summary judgment.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction to review the Board’s final action pursuant to 22

U.S.C. § 4140(a), 28 U.S.C. § 1331, and 48 U.S.C. § 1612(a). We exercise jurisdiction

over the District Court’s decision pursuant to 28 U.S.C. § 1291.

We apply de novo review of the District Court’s decision to grant summary

judgment. Pa. Dep’t of Pub. Welfare v. Sebelius, 674 F.3d 139, 146 (3d Cir. 2012). Like

the District Court, we evaluate the Board’s decision using the APA standards incorporated

into § 4140(a). United States v. Paddack, 825 F.2d 504, 513-14 (D.C. Cir. 1987). Under

the APA, we consider whether the Board’s decision was “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law”; “in excess of statutory jurisdiction,

authority, or limitations, or short of statutory right”; or “without observance of procedure

required by law.” 5 U.S.C. 706(2)(A), (C), (D).3

3 Beberman argues the District Court erred in giving the Board Chevron deference when reviewing its actions. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-44 (1984). She ignores that the District Court cited and applied the proper standard of review under the APA, which required it to defer to the Board’s findings by not substituting “its judgment for that of the agency.” JA 7 (citing Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). Because we agree with the

4 III. Analysis

a. Employment status while in Washington, D.C.

Upon being denied tenure, Beberman asked for and received temporary interim

relief from separation from the Service. She claims that, while receiving interim relief, she

remained permanently assigned to Embassy Malabo and was on TDY status while working

in Washington, D.C., making her entitled to per diem. Beberman claims her assignment to

Embassy Malabo formally ended in October 2016, when SOP D-01 was revised to make

her assignment in Washington, D.C. permanent. In claiming she is entitled to retroactive

per diem, she asks this Court to reject the Board’s finding that she was in Washington, D.C.

on interim relief without a formal assignment from April until November 2016. We decline

to do so.

Initially, we agree with the District Court that the Board properly found Beberman

barred by collateral estoppel from re-litigating whether she remained assigned to Embassy

Malabo while on interim relief in Washington, D.C. The Board cited an order in which it

had previously found Beberman arrived in Washington, D.C. on “‘interim relief’ pending

separation, with no formal assignment at all” which meant “[t]he Department most

certainly did not regard grievant as still officially assigned to Malabo when it issued the

Separation Order.” JA 38 (citing 2015-035 Order, p.10 n. 13). We conclude that Beberman

District Court’s assessment of the Board’s actions after applying the proper standard of review under the APA, we are not persuaded that any alleged error warrants a remand to the District Court.

5 has failed to show on appeal that the Board’s application of collateral estoppel contravened

APA standards.

Aside from being barred, Beberman’s claim that she remained assigned to Embassy

Malabo while in Washington, D.C. is belied by the record. We agree with the District

Court that substantial evidence supports the Board’s conclusion that Beberman was on

interim relief without assignment and the record provides no indication that she was

“temporarily detailed to Washington.” JA 13.4 As a grievant on temporary interim relief,

the terms of her employment were governed by SOP D-01, which dictated that she could

not receive any of the benefits attributed to a TDY assignment. JA 13 (quoting SOP D-01

(Revised Mar. 2014) at 27). Beberman’s claim that she was entitled to per diem from April

until November 2016 warrants no relief.

On appeal, Beberman ostensibly concedes she was not temporarily detailed to

Washington, D.C. but argues she should have been. She claims the Foreign Service, rather

than follow SOP D-01, should have placed her on TDY because of the nature of her duties

and length of time spent in Washington. Beberman argues the Board was wrong to

“essentially approve the Department’s policy of treating grievants differently than other

[Foreign Service] members by directing them to work in Washington temporarily without

a TDY travel order.” Appellant’s Br. 53.5 But grievants on interim relief are

4 As the District Court noted, the Board found Beberman was not still assigned to Embassy Malabo when she arrived in Washington, D.C. because she “could not perform her Embassy Malabo duties while in Washington, and noted that the Embassy had taken steps to fill her position prior to her departure.” JA 12 (citing the Board’s Final Decision at 227). 5 Beberman acknowledges that the State Department revised SOP D-01 in November 2016 so that employees in her situation – on interim relief following a Separation Order – would

6 distinguishable from other Foreign Service members and the State Department has the

discretion to treat them as such. See 22 U.S.C. § 3981(a)(1).6 Beberman has failed to

demonstrate that the Board, in finding the State Department acted within its discretion in

denying her per diem, acted contrary to the law, abused its discretion, or violated her

statutory rights. Accordingly, we will affirm the District Court’s grant of summary

judgment for the Department.

b. Denial of discovery request

Beberman appeals the Board’s denial of her discovery request, which came after the

Department submitted its response to her Grievance Appeal. She sought to discover how

long Foreign Service members on interim relief remain in Washington. The Board’s

reasoning for denying the request was two-fold. First, it found Beberman provided no

statutory or regulatory authority entitling her to such discovery at the appellate stage of the

proceeding. Second, it found the information requested to be irrelevant to her claim that

she was entitled to per diem. On appeal, Beberman argues the discovery would have

established that the State Department could have predicted that she would be in

Washington, D.C. only temporarily and therefore should have “placed her on TDY with

be deemed permanently assigned to Washington, and thus entitled to benefits enjoyed by non-grievant Foreign Service members. But she claims this retroactive permanent assignment “did not make [her] whole” because she was deprived of per diem. Appellant’s Br. 35. 6 The relevant portion of 22 U.S.C. § 3981(a)(1) states “[t]he Secretary shall designate and classify positions in the Department and at Foreign Service posts which are to be occupied by members of the Service.”

7 per diem, rather than follow SOP D-01.” Appellant’s Br. 55. The Department followed

SOP D-01 because it manages Foreign Service members on temporary interim relief;

she was not on TDY because she was no longer assigned to Embassy Malabo. There is no

indication in the record that her assignment status was dictated by the length of time she

spent in Washington, which renders her discovery request irrelevant. We agree with the

District Court that Beberman failed to show the Board’s denial of her request contravened

c. Validity of SOP D-01

On appeal, Beberman argues that the provision of SOP D-01 denying grievants per

diem is invalid because it conflicts with Department regulations and federal statutes. The

Board found that administrative collateral estoppel prevented Beberman from re-litigating

the validity of SOP D-01 because it had “reviewed and decided this issue in previous

grievance appeals filed by [her].” JA 44. On appeal, Beberman argues her claim is not

subject to collateral estoppel because “there has never been any ruling on [her] entitlement

to per diem.” Appellant’s Br. 60. She concedes, however, that it has been previously

decided the Department has the authority to manage grievants on interim relief differently

than other Foreign Service members.7 Her claim that SOP D-01 is invalid because it denies

her per diem benefits is insufficient to overcome the “numerous previous orders in which

[the Board] held that SOP D-01 was a lawful exercise of power and an appropriate use of

7 As the Secretary of State highlighted on appeal, this Court has held that it was “not persuaded that temporary interim relief from separation entitled Beberman to anything more than what she received.” Beberman v. Sec’y United States Dep’t of State, 789 F. App’x 354, 356 n. 5 (3d Cir. 2020).

8 the Secretary of State’s discretionary authority.” JA 15. We agree with the District Court

that the Board’s conclusion that Beberman was estopped from raising the validity of SOP

D-01 was not arbitrary or capricious, did not constitute an abuse of discretion, and was not

contrary to the law.

IV. Conclusion

For the reasons outlined above, we affirm the District Court’s grant of summary

judgment in favor of the Secretary of State.