NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-3344
_____________
JULIE BEBERMAN,
Appellant
v.
SECRETARY UNITED STATES DEPARTMENT OF STATE
_____________
On Appeal from the District Court
of the Virgin Islands
District Court No. 1-17-cv-00061
District Judge: The Honorable Anne E. Thompson
_____________
Submitted Pursuant to L.A.R. 34.1(a)
December 9, 2019
Before: SMITH, Chief Judge, McKEE, and SHWARTZ, Circuit Judges
(Opinion Filed: January 8, 2020)
_____________________
OPINION
_____________________
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
SMITH, Chief Judge.
Pro se appellant Julie Beberman is a Foreign Service Officer to whom the
U.S. Department of State denied tenure. At the end of her limited career
appointment, she would lose her job. To forestall her impending separation from
the Service during the pendency of certain grievances she had filed, Beberman
sought interim relief from the Foreign Service Grievance Board.1 While the Board
evaluated Beberman’s request, it granted her temporary interim relief. Until the
Board’s further decision, the Department instructed Beberman to return from her
overseas post to work in Washington, D.C.
Beberman administratively challenged the Department’s instruction,
culminating in an appeal to the Board. The Department sought a preliminary
determination from the Board under 22 C.F.R. § 904.2, which the Board construed
as a motion to dismiss, and then granted.2 When Beberman timely sought judicial
1
The Board is “an independent adjudicatory body whose function is to adjudicate
grievances filed by members of the foreign service.” United States v. Paddack, 825
F.2d 504, 508 n.5 (D.C. Cir. 1987).
2
The Board had jurisdiction over a statutorily defined grievance. 22 U.S.C.
§ 4131(a)(1). Although the definition of a grievance generally excludes “an
individual assignment of a member under subchapter V,” there is an exception for
assignments that are “alleged to be contrary to law or regulation.” Id. § 4131(b)(1).
And Beberman made such an allegation here, as the Board recognized. See App. 29
(Board decision noting that Beberman “alleged that she was directed to depart
Malabo contrary to a regulation”).
2
review of the Board’s decision, the District Court of the Virgin Islands examined 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), and granted the
Department summary judgment.
In her timely appeal,3 Beberman raises four issues that supposedly
demonstrate that the Board failed to act in accordance with law, abused its discretion,
or fell short of her statutory right. First, she argues that temporary interim relief
constrained the Secretary’s authority to curtail her overseas assignment and reassign
her to Washington, D.C. Second, Beberman claims that certain Department
regulations regarding curtailment and reassignment applied to her during temporary
interim relief. Third, the Department’s revision of its internal Standard Operating
Procedure about reassignment pending separation allegedly constituted retaliation
3
The District Court of the Virgin Islands 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 final decision pursuant to 28
U.S.C. § 1291.
Our review of the District Court’s decision is de novo. 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 standard incorporated into § 4140(a).
See id.; Paddack, 825 F.2d at 513-14. 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
for grievances she filed. Finally, in Beberman’s view, the Board erred by dismissing
her appeal.
Upon reviewing the record,4 we conclude that Beberman has failed to show
that the Board’s decision contravened APA standards.5 For substantially the reasons
set forth in the District Court’s opinion, we will affirm.
4
Beberman seeks to supplement the appendix on appeal with new materials. Some
material relates to the putative curtailment of another Foreign Service Officer, which
occurred well after the decisions of the Board and the District Court. Other material
concerns the general role vel non of lower-level Department officials in curtailment
procedures. Inasmuch as these materials were created subsequent to the appeal,
Beberman cannot show that the additional materials were “omitted from or misstated
in the record by error or accident.” Fed. R. App. P. 10(e)(2). As for still other
material associated with Beberman’s own putative curtailment, she allegedly
received this material shortly before the District Court’s decision, but apparently she
did not provide it to the District Court.
As to all of the proposed supplemental material, we are not persuaded that any
“exceptional circumstances” justify an equitable exception to our general rule
prohibiting appellate consideration of materials that were not presented to the
District Court. Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 225-
26 (3d Cir. 2009); see also In re Capital Cities/ABC Inc.’s Application for Access to
Sealed Transcripts, 913 F.2d 89, 96-97 (3d Cir. 1990). Nor do we feel that it is
necessary to remand this case to the District Court to allow it to evaluate this
material. Accordingly, we will deny Beberman’s pending motions to file a
supplemental appendix and an amended supplemental appendix.
5
Although we will affirm substantially based on the reasoning of the District Court,
we feel compelled to make several observations. First, when the Board ruled on the
Department’s request for a preliminary determination about jurisdiction, the Board
was also permitted to address the Secretary’s assignment authority. See 22 C.F.R. §
904.2(a), (b) (allowing Board in this posture to resolve a jurisdictional issue as well
as “any other issue [raised by a party] whose resolution might avoid the necessity of
further proceedings”).
Second, in our view, the Board was allowed in this posture to evaluate the
Secretary’s assignment authority without first compiling a record of proceedings.
4
See id. § 904.2(a) (permitting preliminary determination about jurisdiction “unless
the Board concludes that resolution of the question of jurisdiction should be deferred
until[,] [for example,] the Board has compiled a record of proceedings”); id.
§ 904.2(b) (adding other situations in which the “Board may also make a preliminary
determination”).
And third, even if the “HR/EX” office that requested the Separation Order
was acting on the authority of the Director General, we are not persuaded that
temporary interim relief from separation entitled Beberman to anything more than
what she received.
5
Julie Beberman v. Secretary United States Depart
Combined Opinion