Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 14, 2003 Decided November 21, 2003
No. 02-5311
FELIX S. BLOCH,
APPELLANT
v.
COLIN L. POWELL, SECRETARY OF STATE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 98cv00301)
Michael J. Kator argued the cause for appellant. With him
on the briefs was William S. Aramony.
William G. Kanter, Deputy Director, U.S. Department of
Justice, argued the cause for appellee. With him on the brief
were Peter D. Keisler, Assistant Attorney General, Roscoe C.
Howard, Jr., U.S. Attorney, and Katherine S. Dawson, Attor-
ney, U.S. Department of Justice.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: HENDERSON, TATEL, and ROBERTS, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROBERTS.
ROBERTS, Circuit Judge: Appellant Felix S. Bloch was a
member of the Senior Foreign Service when he resigned in
1990, after the Department of State initiated proceedings to
remove him from the Service on national security grounds.
In 1992, the Department notified Bloch that the Secretary of
State had decided to withhold consent to Bloch’s receipt of an
immediate retirement annuity. Bloch then withdrew the
compulsory retirement contributions he had made to the
Foreign Service Retirement System. Bloch argues that the
Secretary lacked discretion to withhold the immediate annui-
ty, and that the denial of an immediate annuity constituted a
deprivation of property without due process of law. Bloch
also contends that his withdrawal of retirement contributions
cannot be construed as a waiver of his right to a deferred
annuity, because the Department did not inform him at that
time that a deferred annuity was an available option. The
Foreign Service Grievance Board held that the Secretary had
the discretion to withhold the immediate annuity, that such
action did not violate due process, and that Bloch had waived
the deferred annuity when he elected the lump-sum with-
drawal. The district court found that the Board’s decision
was not arbitrary or capricious. We affirm.
I.
Bloch, who joined the Foreign Service in 1958, was sus-
pended without pay in February 1990 when the Federal
Bureau of Investigation provided the Department of State
with information indicating that his continued employment
might not be consistent with national security. In a letter to
Bloch, the Assistant Secretary of State for Diplomatic Securi-
ty explained that Bloch, while serving overseas, had trans-
ferred national security information to an unauthorized indi-
vidual, had undertaken counter-surveillance measures when
traveling to meet with the individual, and had given false
information to FBI agents conducting a national security
investigation. Letter from Sheldon J. Krys to Felix S. Bloch
3
(Feb. 7, 1990), at 1–2 (JA 171, SA 171a). No criminal charges
were brought against Bloch, but the Department initiated a
removal proceeding under 5 U.S.C. § 7532. That statute
provides that the head of a federal agency may suspend an
employee without pay ‘‘when he considers that action neces-
sary in the interests of national security,’’ id. § 7532(a), and
may subsequently remove the employee after providing notice
and an opportunity to respond (including a hearing, at the
request of the employee) if the agency head ‘‘determines that
removal is necessary or advisable in the interests of national
security.’’ Id. § 7532(b); see also id. § 7532(c).
Bloch requested the hearing to which he was entitled under
the statute, but on July 3, 1990 — one week before the
scheduled hearing date — Bloch tendered a letter of resigna-
tion to the Secretary. On the same day, Bloch withdrew his
request for a hearing and submitted an application for volun-
tary retirement, including a request for payment of an imme-
diate retirement annuity. On July 18, the Department noti-
fied him by letter that his offer to resign had been taken
under advisement pending review by the Secretary. On
November 5, the Department wrote to Bloch to inform him
that the Secretary had determined that it was necessary and
advisable to remove Bloch in the interests of national securi-
ty, and that his removal from the Foreign Service would be
effective that day.
By the summer of 1991, the Department had not yet
responded to Bloch’s application for an immediate annuity,
and he renewed his request. In a letter dated April 2, 1992,
the Department notified Bloch that the Secretary had ‘‘decid-
ed to withhold consent to [his] voluntary retirement and
receipt of an immediate annuity.’’ Letter from John F.W.
Rogers, Under Secretary of State for Management, to Felix
S. Bloch (Apr. 2, 1992), at 1 (JA 157). As authority for the
Secretary’s right to withhold consent, the letter cited Section
811 of the Foreign Service Act of 1980 (codified as amended
at 22 U.S.C. § 4051), which provides:
Any participant who is at least 50 years of age and has 20
years of creditable service, including at least 5 years of
4
service credit toward retirement under the [Foreign
Service Retirement] System (excluding military and na-
val service), may on his or her own application and with
the consent of the Secretary be retired from the Service
and receive retirement benefitsTTTT
The Department indicated two reasons for withholding con-
sent in Bloch’s case: that his removal from the Foreign
Service in November 1990 was an involuntary separation
(rather than a voluntary retirement under Section 811) and
that the ‘‘serious national security reasons underlying’’ his
removal ‘‘furnish[ed] sufficient ground to withhold consent.’’
Letter from John F.W. Rogers, supra, at 1 (JA 157). The
letter also stated that ‘‘persons separated from the service
without benefit of an annuity are entitled to receive a refund
of contributions made to the retirement system during the
period of employment,’’ and indicated that Department staff
would contact Bloch about completing the paperwork needed
to receive the refund. Id.
On August 7, 1992, Bloch applied for the refund of his
retirement contributions; in October of that year he received
a lump sum of approximately $76,000. Some two and a half
years later, in March 1995, he initiated a grievance with the
Department alleging that the Secretary’s April 1992 decision
to withhold consent to his retirement and immediate annuity
was arbitrary and capricious, violated pertinent statutory
provisions, and contradicted a 1983 decision of the Foreign
Service Grievance Board (FSGB). The Department rejected
his grievance on February 20, 1996, holding that ‘‘there is
nothing in Section 811 which would suggest that removal on
national security grounds could not serve as a basis for the
withholding of the consent of the Secretary.’’ Letter from
Ruth A. Whiteside, Deputy Assistant Secretary for Personnel,
U.S. Department of State, to Herbert R. Rubenstein, Counsel
for Felix Bloch (Feb. 20, 1996), at 3 (JA 108). The letter
referenced and attached the April 2, 1992 letter to Bloch from
Under Secretary Rogers, explaining the bases for the Secre-
tary’s decision to withhold consent. Id. at 3–4 (JA 108–09).
5
Having thus disposed of the question of Bloch’s entitlement
to an immediate annuity, the Department’s letter went on to
address whether he was entitled to a ‘‘discontinued service’’
annuity pursuant to Section 810 of the Act (codified at 22
U.S.C. § 4050). Section 810 provides that any Foreign Ser-
vice member who ‘‘voluntarily separates’’ from the Service
after at least 5 years of service credit can withdraw his
contributions to the pension fund or leave them in place and
receive an annuity beginning at age 60. Unlike Section 811,
Section 810 does not require the consent of the Secretary for
the disbursement of an annuity at age 60 (often a deferred
annuity, as it would have been for Bloch, who was 54 years
old when he left the Foreign Service). The Department
concluded that Bloch was not entitled to a Section 810 annuity
because he had waived his right to it when he withdrew his
contributions in August 1992. As the Department empha-
sized, the form that Bloch submitted to request his refund
included a prominent section entitled ‘‘NOTICE TO APPLI-
CANT’’ stating that ‘‘[i]f you have five or more years of
Federal civilian service you may be entitled to an annuity
which will be forfeited by payment of this refund.’’ Applica-
tion for Refund of Compulsory Retirement Contributions
(Aug. 7, 1992) (JA 141). Even in the absence of such a
waiver, the Department noted, Bloch would not be entitled to
a deferred annuity under Section 810 because the statute
applied only to voluntary separations, and his separation in
November 1990 was involuntary.
Bloch then filed a grievance with the FSGB. He relied
principally on the Board’s decision in a redacted (and thus
untitled) 1983 case, No. G–083–054–AID–11 (FSGB 83–54),
which interpreted a Department regulation contained in 3
Foreign Affairs Manual (FAM) § 763.6. The regulation gov-
erns ‘‘separation for cause’’ (defined as ‘‘separation from the
Service because of the unsatisfactory performance of duties
or for such other cause as will promote the efficiency of the
Service,’’ id. § 761.2(i)), and states that ‘‘[a]n employee is free
to resign or retire at any time on a mutually agreed effective
date, and to have the employee’s reasons for resigning or
retiring entered’’ on the employee’s personnel record. Id.
6
§ 763.6(a). In FSGB 83–54, the Board considered the inter-
play between 3 FAM § 763.6 and the requirement in Section
811 that the Secretary consent to voluntary retirements. The
case involved an employee who had sought to retire after
removal proceedings had been initiated pursuant to Section
610 of the Act (codified as amended at 22 U.S.C. § 4010), a
general separation-for-cause provision that establishes proce-
dures for separating employees ‘‘for such cause as will pro-
mote the efficiency of the Service.’’ Id. § 4010(a)(1). In
FSGB 83–54, the Board determined that ‘‘[i]t is not necessary
TTTto decide in this case whether the statute [Section 811]
imposes any limits on the agencies’ power to grant or with-
hold consent to early retirement,’’ because ‘‘the agencies, by
regulation, have imposed such limitations on themselves.’’
FSGB 83–54 at 6–7 (citing 3 FAM § 763.6) (JA 150–51). The
Board concluded that, given the Section 763.6 regulation, the
employee could resign even without the Secretary’s consent,
and even though removal proceedings were pending against
him under Section 610. Id. at 7 (JA 151).
Bloch argued that because the Board had concluded that
‘‘an employee will be permitted to resign in the face of a
proposed separation for cause,’’ id., the Secretary had no
authority to withhold consent to Bloch’s retirement or his
receipt of an immediate annuity. As for the deferred annuity,
Bloch argued that his application for the refund of his contri-
butions could not be read as a waiver of his right to such an
annuity, because he did not know that there was any right to
waive: he applied for the refund after assuming (based on the
fact that the April 1992 letter described him as an employee
‘‘separated from the service without benefit of an annuity,’’
see Letter from John F.W. Rogers, supra, at 1 (JA 157)) that
he was not entitled to any annuity.
The FSGB denied Bloch’s grievance. As an initial matter,
the FSGB held that Bloch’s resignation was effective on the
day it was tendered (July 3, 1990) and that his separation
from the Service occurred on that day, rather than in Novem-
ber 1990 when the Department purported to remove him
from the Service. In re Bloch, FSGB Case No. 96–019 (Jan.
15, 1997), at 8–9 (JA 49–50) (Initial Board Decision). Such a
7
result, the Board stated, was compelled by 3 FAM § 751.1,
which provides that ‘‘[a]n employee is free to resign at any
time and to propose the effective date of resignation.’’ Id.
In a brief footnote, the Board described FSGB 83–54 as
holding that an employee can resign even when removal
proceedings are in progress. Initial Board Decision at 8–9
n.6 (JA 49–50). The Board added, however, that resignation
‘‘does not trigger entitlement to an annuity.’’ Id. at 9 (JA 50).
But the Board opted not to define the scope of the Secre-
tary’s authority to withhold consent to the annuity under
Section 811 of the Act, reasoning that ‘‘[s]uch a definition
would have profound implications.’’ Id. at 11 (JA 52). In-
stead, it focused on whether Bloch had waived his right to an
annuity. The Board first noted that the form Bloch used
when he applied for the refund of his retirement contributions
‘‘gave him clear notice that a refund would forfeit any entitle-
ment to an annuity’’ and ‘‘expressed no limitation on the type
of annuity being waived.’’ Id. at 12, 13 (JA 53, 54). More-
over, the Board observed that Bloch was ‘‘an experienced,
very senior officer’’ who was presumably able to make in-
formed and competent choices. Id. at 13 (JA 54). It also
pointed out that even during the two months between apply-
ing for the funds and receiving the refund check, Bloch could
have changed course and filed a grievance, but did not. Id.
The Board concluded that Bloch’s ‘‘waiver and forfeiture of
any entitlement to an annuity was unambiguous, valid, and
binding.’’ Id.
Bloch sought review of the Board’s decision in the District
Court for the District of Columbia, see 22 U.S.C. § 4140,
arguing that the FSGB had erred in failing to consider the
question whether the Secretary had discretion to withhold
consent to the immediate annuity. He pointed out that if he
were eligible to receive an immediate annuity when he ap-
plied for the refund, then Section 815(a)(1)(D) of the Act
(codified as amended at 22 U.S.C. § 4055(a)(1)(D)) — which
bars such refunds if the recipient becomes eligible for an
annuity within 31 days of filing the refund application —
raised a legal bar to the disbursement of the refund. Under
such circumstances, the refund (and thus, he argued, his
8
waiver of any entitlement to an annuity) would have been
unlawful and therefore invalid. The district court did not
reach the merits of this argument, but held that it was ‘‘an
argument that the Board should have addressed before reach-
ing its conclusion that Mr. Bloch’s waiver was valid and
binding,’’ Bloch v. Albright, 43 F. Supp. 2d 17, 21 (D.D.C.
1999), and thus remanded to the Board.
On remand, the Board resolved the issue that it had left
open in Bloch’s first grievance: the scope of the Secretary’s
authority under Section 811 of the Act. The Board concluded
that ‘‘the plain language ofTTTsection 811 confers broad dis-
cretionary authority upon the Secretary of State to grant or
withhold consent to the benefits available under that section.’’
In re Bloch, FSGB Case No. 99–026 (Mar. 30, 2000), at 23 (JA
316) (Decision on Remand). It then examined the two rea-
sons for withholding consent that the Department had listed
in its April 1992 letter to Bloch: the fact that he had been
removed from the Service involuntarily in November 1990,
and the fact that his removal was based on national security
concerns. The Board concluded that the first reason was
insufficient to warrant withholding consent to Bloch’s retire-
ment and annuity, because (as the Board had found in its
previous ruling) Bloch’s separation from the Service occurred
immediately upon his resignation in July 1990. Id. at 20, 25
(JA 313, 318). But the second reason was sufficient, in the
Board’s view: ‘‘[T]he serious national security con-
cernsTTTwhich prompted the filing of charges against
BlochTTTconstitute legitimate and rational grounds to support
and justify the Secretary’s withholding of consent to an
immediate annuity.’’ Id. at 25 (JA 318).
This holding defeated Bloch’s Section 815 argument: be-
cause the Secretary had validly denied an immediate annuity
for Bloch, he was not eligible to receive an annuity within 31
days of when he applied for his refund, so the refund was not
in violation of Section 815. Id. at 30–31 (JA 323–24). The
Board noted, however, that Bloch had remained entitled to a
deferred annuity under Section 810 of the Act, even after the
Secretary had withheld consent to the immediate annuity.
Id. at 25 (citing 3 FAM § 672.4) (JA 318); see also id. at 29
9
(JA 322) (‘‘The Department’s regulations make it clear that a
withholding of Secretarial consent to voluntary retirement
status with a consequential immediate annuity does not extin-
guish a right to a deferred annuity under section 810.’’). The
Board then restated its earlier conclusion that Bloch had
waived his right to this deferred annuity: ‘‘by submitting [the
refund application] with its clear warning language, together
with the receipt of his mandatory contributions, Bloch forfeit-
ed any entitlement to an annuity.’’ Id. at 27 (JA 320). The
Board finally discussed the argument that the Secretary’s
decision deprived Bloch of property without due process of
law; that argument failed, concluded the Board, because the
discretion accorded the Secretary in Section 811 precluded
the creation of a constitutionally protected property right to
an immediate annuity. Id. at 29 (JA 322).
Bloch again sought review in the district court, which
entered summary judgment in favor of the Department.
Bloch v. Powell, 227 F. Supp. 2d 25, 38 (D.D.C. 2002) (‘‘[A]c-
cording due deference to the FSGB, this court determines
that the FSGB’s decision is not arbitrary or capricious and
that the [Department] did not deny [Bloch]’s right to due
process.’’). This appeal followed. We review the FSGB
decision directly, ‘‘according no particular deference’’ to the
district court’s judgment. Holland v. National Mining
Ass’n, 309 F.3d 808, 814 (D.C. Cir. 2002).
II.
A. The Secretary’s Discretion to Withhold Consent
The crux of Bloch’s argument is that the Secretary did not
have the discretion to withhold consent to Bloch’s receipt of
an immediate annuity. Bloch concedes that Section 811 of
the Act vests the Secretary with significant discretion — as
indeed he must. The statute is perhaps a paradigmatic
vesting of unfettered discretion, placing no constraints on the
Secretary’s authority to withhold consent (other than to re-
quire that consent be withheld if an employee has served
fewer than five years, see 22 U.S.C. § 4051). But Bloch
10
argues that the Department’s regulations and its decision in
FSGB 83–54 have cabined the Secretary’s discretion.
As to the regulations, Bloch argues that 3 FAM §§ 751.1
(‘‘An employee is free to resign at any time and to propose
the effective date of resignation.’’) and 763.6(a) (‘‘An employee
is free to resign or retire at any time on a mutually agreed
effective date’’) limit the discretion of the Secretary to setting
a date for retirement, and eliminate any authority to withhold
an immediate annuity. The first provision concerns only
resignation, not retirement, and there is no longer any dis-
pute that Bloch’s resignation was effective despite the ab-
sence of Secretarial consent. As for the second provision, the
Department correctly explains that it cannot be read to
establish a right to retire ‘‘at any time’’ without regard to the
specific requirements for retirement detailed in applicable
statutes and regulations — age, length of service, and so on.
Indeed, the provisions spelling out those requirements note
that participants who meet the requirements for age and
length of service ‘‘may be retired on application and with the
consent of the participant’s agency from the Service with
entitlement to an immediate annuity.’’ 3 FAM § 672.1–1(a)
(emphasis added). The FSGB considered these arguments in
the Decision on Remand and ruled in favor of the Secretary,
noting the admonition in 3 FAM § 672.1–1b that Foreign
Service members planning to retire should ‘‘request the ap-
proval’’ of appropriate personnel officers. See Decision on
Remand at 24 (JA 317).
Bloch next argues that the Secretary’s discretion was cab-
ined by the Board’s decision in FSGB 83–54 and that the
Board’s Decision on Remand in this case is an unexplained
departure from FSGB 83–54 and therefore arbitrary and
capricious, in violation of the Administrative Procedure Act.
See 5 U.S.C. § 706(2)(A); see also Greater Boston Television
Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1970). The Board
was certainly aware of FSGB 83–54 in its Decision on Re-
mand, relying on FSGB 83–54 to reiterate the conclusion in
the Initial Board Decision that the Department could not
reject Bloch’s resignation simply because it was seeking to
separate him under 5 U.S.C. § 7532. Decision on Remand at
11
20 n.2 (JA 313). The fact that removal proceedings were
pending for national security reasons under 5 U.S.C. § 7532
rather than under the general ‘‘efficiency of the Service’’
rubric of Section 610, as in FSGB 83–54, made no difference,
and it is indeed hard to imagine how the addition of national
security concerns could make the arguments in favor of
involuntary retention of the employee any more compelling
than they were in FSGB 83–54.
The right to an immediate annuity was — in the Board’s
view — a separate issue, because ‘‘merely leaving the rolls
through a resignation does not trigger eligibility and entitle-
ment to an annuity.’’ Id. at 20 (JA 313). As to this latter
issue, the Board concluded that the plain language of Section
811 of the Act confers broad discretion on the Secretary to
withhold consent to immediate annuities. Id. at 23 (JA 316).
In Bloch’s case, the Board found, ‘‘the serious national securi-
ty concerns harbored by his agency and which prompted the
filing of charges against Bloch — charges which he chose not
to contest — constitute[d] legitimate and rational grounds’’
for the Secretary to deny an immediate annuity. Id. at 25
(JA 318). Those concerns were not present in FSGB 83–54.
Our review under the arbitrary-and-capricious standard is
narrow; we will ‘‘uphold an agency decision ‘of less than ideal
clarity if the agency’s path may reasonably be discerned.’ ’’
Common Cause v. Federal Election Comm’n, 906 F.2d 705,
706 (D.C. Cir. 1990) (per curiam) (quoting Bowman Transp.,
Inc. v. Arkansas–Best Freight Sys., 419 U.S. 281, 286 (1974)).
The Board’s reasoning on the issue of the Secretary’s discre-
tion to withhold consent is more than sufficient to satisfy this
test; the Board adequately articulated the respects in which
it found the precedent in FSGB 83–54 controlling and the
respects in which it found the instant case different from
FSGB 83–54. The Board’s Decision on Remand was thus not
arbitrary or capricious.
B. Due Process
Bloch also presses the argument that the Secretary has
deprived him of property without due process of law. To
prevail, Bloch must first show that the interest he asserts is a
12
constitutionally protected property interest. Reeve Aleutian
Airways, Inc. v. United States, 982 F.2d 594, 598 (D.C. Cir.
1993) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 538–41 (1985)). The Supreme Court’s formulation in
Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577
(1972), instructs that ‘‘[t]o have a property interest in a
benefit, a person clearly must have more than an abstract
need or desire for it. He must have more than a unilateral
expectation of it. He must, instead, have a legitimate claim
of entitlement to it.’’ The Court elaborated that property
interests are created and circumscribed ‘‘by existing rules or
understandings that stem from an independent source such as
state law — rules or understandings that secure certain
benefits and that support claims of entitlement to those
benefits.’’ Id.
Bloch argues that his interest in an immediate annuity
upon retirement from the Foreign Service is a protected
property interest. In his view, the Foreign Service Act, the
Department’s regulations implementing the Act, and the De-
partment’s conduct in prior cases combine to provide the
basis for a legitimate claim of entitlement to an immediate
annuity. As to the Act itself, Bloch relies primarily on
Congress’s stated desire to maintain conformity between the
Civil Service Retirement and Disability System and the For-
eign Service Retirement and Disability System. See 22
U.S.C. § 4067(a) (providing that laws that apply to the civil
service retirement system should generally be extended to
the foreign service retirement system). Given the parallel
nature of the two systems, Bloch argues, cases such as
American Postal Workers Union, AFL–CIO v. United States
Postal Serv., 707 F.2d 548, 554 (D.C. Cir. 1983) — which held
that a protected interest in retirement benefits arises when
an employee separates from the federal civil service — sup-
port his claim that he had a protected interest in an immedi-
ate annuity. He concedes that the statutes governing civil
service retirements do not contain language analogous to the
phrase ‘‘with the consent of the Secretary’’ in Section 811 of
the Foreign Service Act, but argues that those six words
13
cannot have the drastic consequence of negating a Foreign
Service employee’s property interest in an annuity.
Turning to the Department’s regulations, Bloch cites this
court’s observation in Kizas v. Webster, 707 F.2d 524, 539
(D.C. Cir. 1983), that in the context of federal employment,
regulations can create protected property interests. As for
the Department’s practices, Bloch emphasizes FSGB 83–54
and the Department’s own admission that no employee other
than Bloch had ever been denied a pension in the face of
separation proceedings. See Letter from Joanne M. Lish-
man, Director, Grievance Staff, U.S. Department of State, to
Herbert R. Rubenstein, Counsel for Felix Bloch (June 20,
1996), at 1 (JA 74). Given that this court has held that ‘‘[i]t is
possibleTTTfor a legitimate expectation to arise based upon
the consistent practice of a decisional body — even in the
absence of express regulatory language,’’ Tarpeh-Doe v. Unit-
ed States, 904 F.2d 719, 724 (D.C. Cir. 1990), Bloch argues
that the Department’s practices buttress his claim of entitle-
ment to an immediate annuity.
Bloch’s argument runs headlong, however, into a line of
precedent holding that when a statute leaves a benefit to the
discretion of a government official, no protected property
interest in that benefit can arise. In Washington Legal
Clinic for the Homeless v. Barry, 107 F.3d 32, 36 (D.C. Cir.
1997), this court held that when ‘‘the legislature leaves final
determination of which eligible individuals receive benefits to
the ‘unfettered discretion’ of administrators, no constitutional-
ly protected property interest exists’’ (quoting Roth, 408 U.S.
at 567). See also Dungan v. Slater, 252 F.3d 670, 676 (3d Cir.
2001) (federal employee had no protected interest in receiving
a waiver of a mandatory retirement rule because Congress
had granted broad discretion to the Secretary of Transporta-
tion to make decisions about such waivers); cf. Beitzell v.
Jeffrey, 643 F.2d 870, 874 (1st Cir. 1981) (Breyer, J.) (noting
that Roth and its progeny ‘‘provide no perfect touchstone for
identifying ‘property’ ’’ but at least ‘‘suggest that the more
circumscribed is the government’s discretionTTTto withhold a
benefit, the more likely that benefit constitutes ‘property’ ’’).
14
As we concluded in part II.A above, the Department’s
regulations and the Board’s decision in FSGB 83–54 did not
cabin the Secretary’s statutorily unbounded discretion to
withhold consent to an immediate annuity when national
security concerns prompt an employee’s separation from the
Service. To create a protected property interest, regulations
must limit discretion by ‘‘ ‘explicitly mandatory language,’ i.e.,
specific directives to the decisionmaker that if the regulations’
substantive predicates are present, a particular outcome must
follow.’’ Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454,
463 (1989); see also Tarpeh–Doe, 904 F.2d at 722–23. The
Department’s regulations do not do so.
Bloch’s heavy reliance on Garrott v. United States, 340
F.2d 615 (Ct. Cl. 1965) (en banc), is misplaced. He extracts
from Garrott the principle that ‘‘irrespective of whether the
interest is characterized as a ‘right,’ i.e., property, or a
‘privilege,’ i.e., subject to the discretion of the Secretary,’’ due
process is required before the government can act against an
individual’s substantial interests on loyalty or security
grounds. Reply Br. at 10. This principle is starkly at odds
with post-Garrott Supreme Court cases such as Roth and
Thompson, which make discretion the touchstone of the due
process analysis in the property context. Moreover, Garrott
and the cases on which it relies (such as Greene v. McElroy,
360 U.S. 474 (1959)) involved situations in which an employee
was not given a meaningful opportunity to respond to the
underlying allegations of national security violations; here, by
contrast, Bloch had the right to a hearing under Section 7532
but chose to waive that right.
The Secretary’s broad discretion to withhold consent to
retirement and an immediate annuity negates the existence of
any constitutionally cognizable property interest in Bloch, and
so his due process claim must be rejected. We emphasize
that our holding today does not mean, as Bloch has argued,
that employees of the Foreign Service have no property
interest in their retirement annuities. This case requires us
to determine only whether an employee has a protected
interest in an immediate annuity under Section 811 upon
resignation from the Service; the question whether employ-
15
ees have such an interest in a deferred annuity is not before
the court. In fact, the Department concedes that Bloch
would have been entitled to the deferred annuity had he not
withdrawn his contributions, and the statutory and regulatory
scheme indicates that the Secretary has no discretion with
respect to deferred annuities. See 22 U.S.C. § 4050 (defining
eligibility for deferred annuities without reference to any
requirement of obtaining consent of the Secretary); 3 FAM
§ 672.4 (stating that any participant who is not eligible for an
immediate annuity and who meets length-of-service require-
ments can elect a deferred annuity, with no reference to
consent); id. § 672.5–1(b) (same).1
C. Waiver of the Deferred Annuity
Bloch’s last argument is another APA claim: that the
FSGB acted arbitrarily and capriciously when it held that his
withdrawal of his compulsory retirement contributions in 1992
was a waiver of his right to receive a deferred annuity under
Section 810 of the Act. This court’s review is again highly
deferential; we are ‘‘not to substitute [our] judgment for that
of the agency’’ but must ‘‘consider whether the decision was
based on a consideration of the relevant factors and whether
there has been a clear error of judgment.’’ Southern Co.
Servs., Inc., v. FCC, 313 F.3d 574, 579–80 (D.C. Cir. 2002)
(quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983)) (internal quotation marks
omitted).
1 The distinction between immediate and deferred annuities dem-
onstrates the weakness of another of Bloch’s statutory arguments.
He emphasizes that in Section 610 of the Act, Congress provided
that most employees who are separated for cause can elect an
annuity beginning at age 60 and established specific procedures that
must precede any separation for cause, creating a protected entitle-
ment to such an annuity. According to Bloch, it would be ‘‘per-
verse’’ to hold that employees who are separated for cause under
Section 610(b) have a property right in their annuities while ‘‘all
other Foreign Service employees’’ lack any property right in their
annuities. Appellant’s Br. at 17. It is clear, however, that any
property right created under Section 610(b) is a right to a deferred
annuity, not a right to an immediate annuity.
16
In this appeal, Bloch has not renewed the argument that
prompted the remand from the district court to the FSGB
earlier in these proceedings — that because he was eligible
for an immediate annuity at the time he applied for his
refund, Section 815 of the Act rendered the payment of the
lump sum unlawful (and any consequent waiver invalid).
Instead, Bloch’s principal argument is that his purported
waiver was made on the basis of incomplete information. He
points to the Department’s April 1992 letter, which mentioned
that he had the option of applying for a refund of his
contributions, but did not mention that he also had a different
option — leaving the contributions in place and receiving a
deferred annuity when he reached age 60. Bloch also empha-
sizes that when the Department rejected his first grievance in
February 1996 it stated (erroneously, it now concedes) that
‘‘there was no inchoate pension right which would ripen on
Mr. Bloch’s sixtieth birthday.’’ Letter from Ruth A. White-
side, supra, at 5 (JA 110).2
The FSGB addressed the waiver issue in both of its deci-
sions in Bloch’s case. The Initial Board Decision emphasized
that the application form gave Bloch ‘‘clear notice that a
2 At oral argument, counsel for Bloch emphasized the fact that
Section 810 of the Act, which governs eligibility for deferred
annuities, applies only to retirees who separate from the Service
voluntarily. Bloch could not have known that he was eligible for a
deferred annuity when he applied for the refund of his retirement
contributions, counsel argued, because the Department’s April 2,
1992 letter had made clear that the Department considered his
separation to be involuntary. (Only later, after the FSGB’s first
decision held that the Secretary had no right to refuse Bloch’s
resignation, was it certain that Bloch’s separation should be treated
as voluntary.) We cannot consider this argument because it was
not raised during the FSGB’s proceedings on remand from the
district court. See Wabash Valley Power Ass’n v. FERC, 268 F.3d
1105, 1108 (D.C. Cir. 2001). In any event, Bloch’s consistent
position from the outset was that his separation had in fact been
voluntary. See, e.g., Application for Retirement (July 3, 1990) (JA
163); Grievance of Felix Bloch to the FSGB (Apr. 17, 1996), at 10–
11 (JA 94–95). He should not have ignored the consequences of
being right.
17
refund would forfeit any entitlement to an annuity;’’ the
FSGB also observed that Bloch was an experienced officer
and that he had time, even after applying for the refund, to
change his mind and file a grievance to challenge the denial of
the immediate annuity. Initial Board Decision at 12, 13 (JA
53, 54). Bloch’s decision to waive the annuity, the Board
concluded, was ‘‘informed’’ and ‘‘intentional.’’ Id. at 13 (JA
54).
In the Decision on Remand, the Board found that the form
Bloch used to apply for the refund contained ‘‘readily observ-
able language’’ warning him that payment of the refund
would forfeit any annuity to which he may have been entitled.
Decision on Remand at 27 (JA 320). The Board also cited 3
FAM § 672.5 (entitled ‘‘Separation Without Annuity’’), which
provides that ‘‘[a]ny participant who is separated from the
Service with at least 5 years of creditable serviceTTTmay elect
to receive a lump-sum paymentTTTor to [leave] the contribu-
tions in the Fund and received a deferred annuity.’’ 3 FAM
§ 672.5–1(b). As the FSGB further noted, the regulation
then provides that ‘‘[a]n election to receive a lump-sum pay-
ment cannot be changed once it becomes final.’’ Id. More-
over, the misstatements in the February 1996 letter could not
have formed the basis of Bloch’s decision to withdraw his
retirement contributions in 1992, and thus are irrelevant in
deciding whether Bloch waived the deferred annuity at that
time.
We cannot say that the Board failed to consider the rele-
vant factors or made a clear error of judgment when it
concluded that Bloch had waived his right to a discontinued
service annuity; its decision thus was not a violation of the
APA.
III.
For the foregoing reasons, we affirm the judgment of the
district court.