Category Archives: Retirement

August 24, 2012 · 5:16 am

Ambassador Crocker Arrested for Hit and Run and DUI in Spokane

We were not always happy with Ambassador Crocker’s often glass is full assessment of what was going on in Afghanistan when he was the Ambassador there, but the following news is not one we were hoping to read on his second post-retirement.

KXLY.com of Spokane, Washington (h/t to The Cable’s Josh Rogin) reported that Ambassador Ryan Crocker was arrested at 2:05 in the afternoon on August 14 by the Washington State Patrol for hit-and-run and driving under the influence in Spokane Valley. The report cited the State Patrol saying that Ambassador Crocker crossed two lanes of traffic, clipped a semi and damaged the passenger side of the Ford Mustang he was driving. He was pulled over, taken into custody and transported to the Spokane Valley Precinct where he received a sobriety test. He reportedly had a .16 BAC (blood alcohol concentration) on one test, twice the legal limit in Washington State. Another test reportedly indicated a .152 BAC.

“It was fairly obvious that Mr. Crocker was highly intoxicated ,” Briggs [Washington State Patrol Trooper] said, adding that the arresting trooper said that Crocker was very cooperative throughout the incident.

The State Patrol believes he was intoxicated by alcohol, not prescription drugs, due to odor and the high blood alcohol count. The WSP added Thursday there is no way Crocker could have crossed two lanes of traffic, hit the semi and continued to drive without knowing it.
[...]
On Aug. 15, the day following his arrest, Crocker pled not guilty to the hit and run and DUI charges. Both charges carried a $1,000 bail.
[...]
His next court appearance is scheduled for September 12.

Read in full here.

Just a day before this incident, Yale News reported that Ambassador Crocker has been named Yale’s first Kissinger Senior Fellow at the Johnson Center for the Study of American Diplomacy and was scheduled to teach both undergraduate and graduate students during the 2012-2013 academic year.

In his long career with the State Department, Ambassador Crocker served as ambassador six times.  He was the United States Ambassador to Afghanistan from 2011 to July 2012. He was also previously  United States Ambassador to Iraq from 2007 to 2009, to Pakistan from 2004 to 2007, to Syria from 1998 to 2001, to Kuwait from 1994 to 1997, and to Lebanon from 1990 to 1993.

Of course, prior to becoming ambassador he served in a host of other places like Qatar and Iraq.  In 2003, he was also a political officer at the US Embassy in Lebanon when it was hit by a suicide car bomb. A total of 63 people were killed in the bombing: 32 Lebanese employees, 17 Americans, and 14 visitors and passersby.

Almost all mention of Ambassador Crocker’s name also mentions some of the most dangerous hotspots where he served since joining the Foreign Service in the early 1970′s.  We don’t stop and pause often enough to ask if we can send our diplomats to all these dangerous places in the world over and over and over again without any personal consequences on their part. What part of themselves did they lost in Beirut or Peshawar? We never really ask and they did not tell, except sometimes, decades later.

Kristin K. Loken was a Foreign Service officer with USAID who worked at the US Embassy in San Salvador for two years in the late 1970s during El Salvador’s brutal civil war was later diagnosed with “post-traumatic shock syndrome,” (the term used for PTSD in the early 1980s):

“I went to my boss and told her I thought I was going through some postwar emotional problems and asked if the State Department or USAID had some counseling services available. She said she was sympathetic but thought senior people would probably frown on my having emotional problems, and advised that disclosing my condition might negatively affect my eventual tenuring with USAID. So it would be best to keep a “stiff upper lip.” Her advice was to see a private therapist, for which she would give me as much administrative leave as I needed.”

In her 2008 FSJ article on PTSD (Not Only for Combat Veterans (p.42)), she writes about subsequently working on the Lebanon program and the 1983 US Embassy Beirut bombing:

In April 1983, I had just left the city and arrived back in the U.S. when the embassy was blown up. In the bombing, I lost my mission director, Bill Mc-Intyre, our Lebanese secretary and many other colleagues and good friends with whom I had worked for the last year.
[...]
I noticed that many of the symptoms of the previous PTSD episode returned at this time, but I felt that if I were patient, they would pass as they had the first time.
[...]
More than two decades after I first experienced PTSD, the symptoms have for the most part passed — except when I am overcome by exhaustion, physical pain, illness or stress. Then I can feel myself slipping back into a bad place.

We cannot presume to know what is ailing Ambassador Crocker or if he has been screened for PTSD.   We can only hope that he gets better.  An unnamed official told CNN that “the serious health problem he had in Iraq came back, so he is forced to leave a year early for genuinely serious health reasons.” The State Department Spokesman also confirmed this to the press last May without additional details when news first broke that Ambassador Crocker is stepping down from his post at the US Embassy in Kabul.

We note that Ambassador Crocker was reportedly arrested at 2:05 p.m. with a .16 BAC, twice the legal limit in Washington State.  USVA’s PTSD page notes that PTSD and alcohol use problems are often found together.  Below is a a description of what happens when an individual has a BAC of between .12 to .15:

.12-.15 BAC = Vomiting usually occurs, unless this level is reached slowly or a person has developed a tolerance to alcohol. Drinkers are drowsy.

Drinkers display emotional instability, loss of critical judgment, impairment of perception, memory, and comprehension.

Lack of sensor-motor coordination and impaired balance are typical. Decreased sensory responses and increased reaction times develop. The vision is significantly impaired, including limited ability to see detail, peripheral vision, and slower glare recovery.

Here are other important details on PTSD and alcohol use from USVA:

  • Having PTSD also increases the risk that an individual will develop a drinking problem.
  • Up to three quarters of those who have survived abusive or violent trauma report drinking problems.
  • Up to a third of those who survive traumatic accidents, illness, or disasters report drinking problems.
  • Alcohol problems are more common for survivors who have ongoing health problems or pain.
  • Sixty to eighty percent of Vietnam Veterans seeking PTSD treatment have alcohol use problems.

We don’t know that we’ll hear from Ambassador Crocker, himself. But we hope he speaks out.

In any case, when my best friend in the Foreign Service retired, he got a signed certificate from the Secretary and once or twice a year, he gets a statement of pay from some office at State and that’s about it. He gets more correspondence on military news, pay, benefits, etc. from the U.S. Armed Forces from where he retired prior to joining the State Department.

What support can Ambassador Crocker expect from the State Department?

We’ll shortly find out.

Domani Spero

Update:  Seattle’s kirotv.com covers this here.   CNN is reporting that he was charged, car impounded then released on his own recognizance.  According to CNN conditions of his bail, as outlined August 15, include “refraining from committing any crimes and consuming alcohol or drugs except as prescribed by a doctor, the court docket states. Crocker was also ordered to go to a drug testing office within 24 hours and undergo alcohol testing twice a month.”

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August 8, 2012 · 1:35 am

Miller v. Clinton: Court Says State Dept Not/Not Exempt from Age Discrimination Law

We previously blogged about the Miller v. Clinton case in November 2010 (see Miller v. Clinton: Amcit FSN Takes State Dept to Court for Age Discrimination).

On November 4, 2010, the district court granted the State Department’s motion and dismissed the case with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6), holding that the Secretary of State may exempt employees hired under the authority of § 2669(c) from the statutory protections of the ADEA.

The case eventually landed in the Court of Appeals and on August 7, 2012, in a 2-1 decision the lower court’s decision was reversed. The opinion for the Court is filed by Circuit Judge GARLAND; the dissenting opinion is filed by Circuit Judge KAVANAUGH

Excerpts:

GARLAND, Circuit Judge: There is no dispute that the State Department terminated the employment of John R. Miller, Jr., a United States citizen working abroad, solely because he turned sixty-five years old. Indeed, it is the position of the Department that it is free to terminate employees like Miller on account of their age. Moreover, the necessary consequence of the Department’s position is that it is also free from any statutory bar against terminating an employee like Miller solely on account of his disability or race or religion or sex.

After being dismissed on his sixty-fifth birthday, Miller brought suit alleging that his forced retirement violated the federal employment provisions of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 633a. Accepting the State Department’s position, the district court dismissed Miller’s complaint on the ground that the statute under which Miller was hired, section 2(c) of the Basic Authorities Act, 22 U.S.C. § 2669(c), permits the Department to exempt Miller from the protections of the ADEA. We reverse, finding nothing in the Basic Authorities Act that abrogates the ADEA’s broad proscription against personnel actions that discriminate on the basis of age.

Miller is a U.S. citizen who was employed by the Department of State as a safety inspector at the U.S. embassy in Paris, France. He was hired in October 2003 as “locally employed staff” pursuant to a personal services agreement. Miller’s contract was negotiated and signed under the authority of section 2(c) of the Basic Authorities Act, which authorizes the Secretary of State to “employ individuals or organizations, by contract, for services abroad.” 22 U.S.C. § 2669(c); see U.S. Dep’t of State Personal Servs. Agreement (J.A. 23) (identifying 22 U.S.C. § 2669(c) as the exclusive “[s]tatutory authority for this agreement”). The proper construction of § 2669(c) is the central issue on this appeal.

Among other standard contractual provisions, Miller’s employment contract incorporates by reference “[a]ll provisions of the local compensation plan” for Foreign Service National employees in France. J.A. 23. One provision of the Local Compensation Plan (LCP) is a mandatory retirement clause. That clause follows the (apparently) prevailing French practice of mandating retirement at age sixty-five, and expressly states that “[a]ge 65 is the mandatory age limit for all employees under the LCP.” Foreign Serv. Nat’l Comp. Plan (J.A. 26).

In accordance with the mandatory retirement clause, Miller was advised by letter dated March 22, 2007 that he would be separated from his position due to age, effective July 23, 2007, his sixty-fifth birthday. There is no dispute among the parties that the sole reason for Miller’s termination was his age. The Department has not identified any concerns regarding Miller’s job performance or his ability to perform his duties. According to Miller’s supervisor, “[t]here was no other reason, to my knowledge, for Mr. Miller’s separation[;] it was strictly the mandatory age issue.” Kenan H. Hunter, EEO Investigative Aff. (J.A. 90).

In case you did not know this, the USG may discriminate against “aliens” employed outside the United States. More from the Miller opinion:

In 1974, Congress amended the ADEA to address “[n]ondiscrimination on account of age in Federal Government employment.” 29 U.S.C. § 633a. Section 633a broadly declares that “[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age.” Id. § 633a(a). The section includes an exception for “personnel actions with regard to aliens employed outside the limits of the United States,” id. (emphasis added), but contains no parallel exception for U.S. citizens so employed. Accordingly, it is undisputed that, as a general matter, the protections of § 633a extend extraterritorially to cover United States citizens employed by federal agencies abroad. See id. (stating that the statute is applicable to “executive agencies as defined in section 105 of Title 5”); see also 5 U.S.C. § 105 (“For purposes of this title, ‘Executive Agency’ means an Executive Department [or] a Government corporation.”).

Ah – but Miller is not an “alien” or an FSO who is subject to mandatory retirement:

[I]n several statutes Congress has clearly and affirmatively authorized the kind of mandatory retirement clause at issue here — but for specified classes of government employees that, again, do not include Miller. The statute that governs the Foreign Service Retirement and Disability System is one example. It states that “any participant shall be retired from the Service at the end of the month in which the participant has reached age 65.” 22 U.S.C. § 4052(a)(1). In Strawberry v. Albright, 111 F.3d 943 (D.C. Cir. 1997), a State Department employee who participated in a pension system governed by § 4052(a)(1) brought suit contending that the system’s mandatory retirement provision violated the ADEA. Not surprisingly, this court had little difficulty concluding that “the ADEA’s general prohibition of age discrimination does not prohibit enforcement of the mandatory retirement provision[]” for participants in the system, because § 4052(a)(1) specifically mandates retirement at age sixty-five and was passed after the ADEA was made applicable to federal employees. Id. at 947. Section 4052(a)(1) does not apply to Miller, however, because he was never a member of the Foreign Service or a participant in its retirement system.

One of the arguments employed by USG lawyers is to insist that “even if the statutory language is ambiguous, “the Secretary’s longstanding interpretation . . . is entitled to deference” under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). DOS Br. 18. Under Chevron’s familiar second step, “if the statute is silent or ambiguous with respect to the specific” point at issue, a court must uphold the agency’s interpretation as long as it is reasonable.”

The Court did not buy that and notes that “the State Department acknowledged that the Secretary has never promulgated a written interpretation of § 2669(c) that asserts the section authorizes her to find the ADEA inapplicable to a contract like Miller’s.” It also points out that “there is no evidence that the current Secretary or any of her predecessors ever knew of the interpretation being advanced in their names. Instead, the Department asks us to rely upon the contract itself, which, the Department says, reflects the agency’s consistent practice of at least twenty years.”

But here is the most interesting part of the opinion:

At oral argument, Department counsel suggested that, if U.S. employment discrimination laws were applicable to U.S. citizens hired abroad under § 2669(c), State Department supervisors might prefer to hire foreign workers who are not protected by those statutes. Oral Arg. Recording 25:00-26:15. Our dissenting colleague proffers a similar explanation of his own. Dissent at 7-9. This line of reasoning does not appear anywhere in the legislative history.28 Nor is that surprising. It requires the assumption that State Department supervisors would prefer to hire employees against whom they are free to discriminate — and that in the absence of a “level” playing field permitting them to discriminate against everyone, those supervisors would decline to hire U.S. citizens.

The Court is shocked :shock: and calls out the callousness and hypocrisy of the institution whose mission is to “Shape and sustain a peaceful, prosperous, just, and democratic world and foster conditions for stability and progress for the benefit of the American people and people everywhere.”

Indeed, while it would be surprising for Congress to assume such callousness on the part of State Department officials, it is more than merely surprising to hear the Department make the same assumption about its own people. And that is doubly so in light of the repeated declarations that it “provides equal opportunity and fair and equitable treatment in employment to all people without regard to race, color, religion, sex, national origin, age, disability, political affiliation, marital status, or sexual orientation.”
[...]
[W]e conclude that the legislative history’s vague references to “flexibility” and “competitive[ness]” are insufficient to indicate a congressional intent to permit the State Department to discriminate against U.S. citizens hired abroad.

And so the reversal:

The judgment of the district court, granting the State Department’s motion to dismiss Miller’s ADEA claim, is reversed, and the case is remanded for further proceedings consistent with this opinion.

Don’t say amen yet.  This is not the end of this, just wait …

Domani Spero

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June 29, 2012 · 12:35 am

US Embassy Kabul: Eileen O’Connor Moving from Afghanistan to SRAPistan?

We recently posted about the new and sparkling Ryan C. Crocker Expeditionary Production Studio at the US Embassy at the US Embassy in Kabul.  (See Ambassador Ryan C. Crocker “Dedicates” The Ryan C. Crocker Expeditionary Production Studio – to Whom?)

Our reliable Baghdad Kabul Nightingale amusingly informed us that the Ryan C. Crocker Expeditionary Production Studio is the only building in the complex that actually says what its purpose is, on the outside.  The Baghdad Kabul Nightingale is not counting “New Office Building” or “Existing Office Building,” aka, “Old Chancery Building,” and convinced that those two buildings were clearly not/not named by someone in public affairs.  Apparently, there are many other buildings in the embassy complex with boring names like DFAC, tower, staff housing, etc, or have state names like Michigan, Florida, etc.  The Ryan C. Crocker Expeditionary Production Studio is the only one that says “Broadcast Studio”; it’s the only one (at least for now) that says right on the front and the back exactly what it does.  The Baghdad Kabul Nightingale informs us that the public affairs folks over there clearly knew how to brand.

In a related but not unexpected news, word has it that Eileen O’Connor is leaving post soon, moving to DC and into the Office of the Special Rep for Af/Pak (SRAP); the late Richard Holbrooke’s old office now encumbered by Marc Grossman in Foggy Bottom.

Via US Embassy Kabul/Flickr | Minister of Border and Tribal Affairs Khalid greets Eileen O’Connor, Director of Communications and Public Diplomacy, U.S. Embassy, before the inauguration of the Access English program at Rahman Baba High School in Kabul, Afghanistan on Saturday, June 4, 2011. David Ensor is the guy with the red tie.

In any case, in 2010, we had David Ensor (formerly of CNN) over at the US Embassy in Kabul as Director of Communications and Public Diplomacy, a newly created title. He had since moved on to VOA in 2011.

He was soon replaced by former CNN/ABC correspondent Eileen O’Connor as Director of Communications and Public Diplomacy.  Don’t worry, she’s not leaving government service. If what we’re hearing is true, you will soon rub elbow with Ms. O’Connor at the State Department cafeteria.

So a now vacancy at US Embassy Kabul for a public affairs professional, huh? You can try Wolf Blitzer but you are wasting your time. Or John King who just lost his show, but it is an election year. Who wants to be in Kabul wrestling with the Taliban on Twitter when there is an Obama-Romney face off at the homefront?

We have just the right candidate for you, folks — and she’s somebody familiar, taa-daa! Dr. Liz Colton.

Dr. Colton previously worked as a journalist with firsthand experience abroad. She reported for Asia Week, a Reuters magazine, and was a London-based television producer for both NBC and ABC covering the Middle East and North Africa. She even has an Emmy for two ABC Nightly News pieces on Libya. Later she established Newsweek’s Middle East bureau in Cairo. She covered the Persian Gulf War and was even NPR’s State Department correspondent. And best of all, she is a former Foreign Service officer. One of ours.

Pardon me? Dr. Colton took the State Department to court for age discrimination? Oh heck, that’s like problematic, isn’t it?  Here’s a public affairs professional whose talents they could really use over there, they don’t need six months to get her up to speed, but she took State to court and while in an ongoing legal tussle, she was thrown off the airlock at 66… and …

But…but… DGHR is so full of nice people, surely they did not take that personally.

Domani Spero

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May 31, 2012 · 2:39 am

Say Goodbye to NEA Bureau Boss, Jeffrey Feltman

On May 22, 2012, the State Department spokesman confirmed that “Assistant Secretary Feltman has advised Secretary Clinton that he would – that he plans to retire at the end of the month and that he is going to be pursuing other opportunities.” Liz Dibble, NEA’s PDAS will reportedly be steering the ship in the interim.

Below is Jeffrey Feltman, then US Ambassador to Lebanon during the 15,000 amcit evacuation via Cyprus in 2006. Unfortunately, he’s not the most Flickr-friendly official we have and we do not have a lot of photos to share.  But he is not altogether invisible.  Click here to view a few more photos in a slideshow of the outgoing NEA boss.

Ambassador Feltman with U.S. Marine Brigadier General Carl Jensen during the evacuation of Beirut, July 2006
(photo via Wikipedia)
Click here to view slideshow

Digger of Life After Jerusalem has a nice post (would tickle FS bloggers, too) on Secretary Feltman saying, “Don’t go.”

The IG inspectors also had great things to say about him when they reviewed the bureau in May 2011:

The Assistant Secretary has served throughout the region, including as Ambassador in Lebanon, as well as principal deputy assistant secretary and acting Assistant Secretary immediately prior to his current position. He received consistently high marks from employees throughout the bureau and the Department for his knowledge of the region, his communication skills, and his genuine concern for his staff and their workload. His own grueling schedule only reinforced that appreciation.

Each Friday, the Assistant Secretary convenes an open meeting that all bureau employees and key contacts inside and outside the Department may attend. Interagency contacts praised the front office for its professionalism, transparency, and openness, saying it resulted in better communication for all sides as they work together on difficult and urgent issues.

The Assistant Secretary, DASes, and EX director take an active interest in filling the bureau’s positions with the best officers they can find. The need to fill key Iraq slots over the past 7 years has resulted in many non-NEA hands coming into the bureau. The Assistant Secretary is understandably proud of this influx of new blood. Competition for prime NEA slots remains fierce, despite the long hours.

So there, that’s why he will be missed.

We do not have confirmation for this but he is reportedly heading to the UN Secretariat as Under-Secretary-General for Political Affairs (DPA).  Good for him!

About where he’s going:  Established in 1992, DPA is the lead U.N. department for peacemaking and preventive diplomacy. According to the UN, the Under-Secretary-General manages the department, advises the Secretary-General on matters affecting global peace and security, carries out high-level diplomatic missions and provides guidance to peace envoys and political missions in the field.  The Under-Secretary-General also serves on the Secretary-General’s Policy Committee, the highest decision-making body within the U.N. Secretariat, and chairs the Executive Committee on Peace and Security, a high-level body for interagency and interdepartmental coordination.  In addition to its more than 250 professional and administrative staff at U.N. headquarters in New York, DPA draws from the work of political and peace-building missions under its supervision, which employ more than 1,700 national and international staff in Africa, Asia and the Middle East.

Sounds like an interesting gig, with all best wishes!

Domani Spero

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March 1, 2012 · 12:57 am

Can you imagine having your HHE delivered to your hotel in WashDC?

FSGB Case No. 2011-037 is about a Foreign Service Officer with 30 years of service, whose last overseas assignment was to a Provincial Reconstruction Team (PRT) in Iraq.  Approaching retirement in the fall of 2009, grievant left Iraq and returned to Washington.  He leased a temporary residence at the Remington Hotel in Washington D.C.  Grievant retired from the Foreign Service, effective Sunday, February 28, 2010.  He remained in the Washington D.C. area, residing at the Remington Hotel.

On Monday March 1, 2010, grievant received a phone call from HR informing him that he has not updated his OF-126 (Residence and Dependency Report) and his most recent OF-126 in his OPF was dated April 30, 1985. Following completion of that conversation, HR e-mailed a blank form OF-126 to grievant. Grievant filled out the form, placing his current Washington D.C. address in Block 8, and electronically signed and dated the form, March 1, 2010.

In October 2010, while attending the Retirement Job Search Program, grievant contacted the Department’s Transportation Office to arrange to have his HHE sent to his retirement home in Baytown, Texas.  He was told that his retirement address was Washington D.C., so his effects could not be shipped at government expense to Texas.

In short, the FSO could proceed to his retirement home in Texas but his 30 years worth of household effects which may or may not have reached the statutory limit of 8,165 kilograms or 18,000 pounds, net weight was stuck in Washington, D.C.

Bulldozer relocating a house in c. 1920

Image via Wikipedia

According to the record of proceeding, which is publicly available online with the names redacted, the grievant contacted HR and was informed the Assignments Panel directed that a Decision Memorandum be sent to the Director General of the Foreign Service.  On November 1, the HR Executive Office (HR/EX) sent a Decision Memorandum to the Director General recommending against approving grievant’s request to retroactively change his separation address to Baytown, Texas.  Excerpt below from the Decision Memorandum:

Mr. [Grievant] (FE-OC) transferred from Iraq to Washington D.C. in October/November 2009.  Facing age limitation mandatory separation, he submitted his retirement package which included the attached OF-126, dated March 1, 2010.  He requested Washington D.C. as his separation address.  No travel orders were issued because his separation address is within a 50-mile radius from Washington D.C.

Mr. [Grievant]’s retirement was effective February 28, 2010.  He has been working in the Department as a WAE since his retirement and recently contacted his CDO to say that he had made a mistake when he completed the OF-126.  He said the correct separation location should have been Baytown, Texas instead of Washington D.C.  He asked that he be re-paneled and retroactively separated to Baytown.  HR/EX would have to issue a travel authorization if his request is approved.

On November 5, the Director General issued her decision, denying the request.

What a way to say “thank you for your service.”

On January 31, 2012, the Foreign Service Grievance Board held that “The grievant met his burden of showing, by a preponderance of the evidence, that his grievance is meritorious.  The grievance is sustained in part, and the Department is ordered to issue grievant travel orders, and ship his household effects (HHE) to the service separation address listed in the form OF-126 in effect on the date of his retirement on February 28, 2010.” 

Below is the case overview from the FSGB:

The grievant, a Foreign Service Officer who retired from the U.S. Department of State, received a telephone call from his Career Development Officer (CDO) in HR/CDA on the first workday (March 1, 2010) after his retirement, in which the CDO told grievant that his OF-126 form must be updated, as the then-current form in grievant’s file was dated in 1985.  Grievant and his CDO did not discuss the significance of the form, or that its contents, specifically Block 8, would be used as the destination for grievant’s travel and the shipment of his HHE.  Without reading the instructions for the form (which he claims not to have received from his CDO), grievant filled it out, citing his temporary quarters in a Washington, D.C. hotel as his separation address, and emailed it back to his CDO.

Several months later, while attending the Job Search Program, grievant called the Department’s transportation division to arrange for shipment of his HHE to his new home in Baytown, Texas, a Houston suburb.  He was told that he was not authorized any shipment as his separation address, as recorded on the March 1, 2010 OF-126, was Washington D.C.  Grievant then called his CDO and asked to have the address changed back to the Houston area.  This required a decision memo to the Director General (DG), which recommended against authorizing the change grievant requested.  The DG denied the request.

The Board found credible the grievant’s contention that he would not have changed his OF-126 had his CDO not called and told him he must do so.  The Board also gave credence to grievant’s argument that given grievant’s last assignment to a provincial post in Iraq, he may not have received the Department notice explaining the importance of keeping the OF-126 updated; it is possible that he was unaware that the form would be used to authorize the final destination of his HHE.  Finally, the Department’s argument that the grievant could not change his retirement address after his effective date of retirement, when the Department did just that only a few months earlier, fails.

The Department is ordered to authorize travel and shipment of effects to the service separation address in grievant’s file on February 28, 2010, the effective date of his retirement, in Houston, Texas.   It is also ordered to reimburse grievant for the costs of storage of his HHE from January 1, 2011 until shipment to Texas.  Grievant’s request to have shipment authorized to Baytown, Texas is denied.

It might be useful to note that the OF-126 is also the basis when you request for Emergency visitation travel (EVT) from the post of assignment to the United States or to other locations in certain situations of family emergency.  Here is the relevant part: “In the event the seriously ill, injured, or deceased family member or incapacitated parent is located outside the United States, or the remains of an immediate family member who has died abroad are to be accompanied to a place outside the United States, travel costs are “constructed,” i.e., the cost of the travel by the employee or employee’s spouse or domestic partner (as defined in 3 FAM 1610) may not exceed the transportation expenses that would have been incurred for travel between the post and the employee’s service separation residence address.”

I’m glad the FSGB did not like the special way they said thank you over there, too.

Domani Spero

 

 

 

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December 17, 2011 · 9:43 pm

Officially Moved: Nancy J. Powell goes from DGHR to New Delhi, and if she turns 65 in 2012, so what?

On December 16, President Obama announced his intent to nominate outgoing Director General of the Foreign Service, Nancy J. Powell to be Ambassador to India.  The WH released the following brief bio:

Ambassador Nancy J. Powell, a career member of the Senior Foreign Service, currently serves as Director General of the Foreign Service and Director of Human Resources at the Department of State.  She was conferred the personal rank of Career Ambassador in January 2011.  Prior to her current assignment, Ambassador Powell served as Ambassador to Nepal (2007-2009), Ambassador to Pakistan (2002-2004), Ambassador to Ghana (2001-2002), and Ambassador to Uganda (1997-1999).  Previous overseas assignments included service in Ottawa, Kathmandu, Islamabad, Lome, Calcutta, New Delhi, and Dhaka.  Her Washington assignments have included: Refugee Assistance Officer, Principal Deputy Assistant Secretary for African Affairs, Acting Assistant Secretary for International Narcotics and Law Enforcement Activities, and the National Intelligence Officer for South Asia at the National Intelligence Council.  Ambassador Powell joined the Foreign Service in 1977 following six years as a high school social studies teacher in Dayton, Iowa.

She received a B.A. from the University of Northern Iowa.

* * *

In State Magazine’s December issue, Ambassador Powell said goodbye after a two-year tenure as Director General of the Foreign Service and Director of Human Resources at the Department of State. She also highlighted the accomplishments of her HR shop including the following:

“We successfully staffed our priority posts, especially in AIP, with volunteers. Thank you to all who recognized the vital importance of providing Foreign Service expertise to these missions. This willingness to step up is crucial to maintaining a system that gives employees the opportunity to decide when it is best for them and their families to serve in these dangerous places without sacrificing our mission.”

That sorta got my porcu-quills up.  The previous DGHR who oversaw arm twisting and directed assignment threats of diplomats during Condi Rice’s time, got a nice onward assignment as ambassador to a tropical country. His deputy, similarly, ended up as ambassador to another tropical “paradise” albeit, where the last surviving tribes in the world engaging in cannibalism lives. Don’t worry, the tribe does not venture into the capital city just to dine.

I wish — just for once, that the folks asking people to
volunteer to serve in our priority posts in the war zones of Afghanistan
and Iraq and in Pakistan, would themselves volunteer to work there? No,
not just visit. But. Work. There. Because why not? That would be a nice
example of leadership in action instead of a misfired caper of “follow
what I say but not what I do.”

Wonderful to see all you volunteers stepping up to fill in vacant slots in AIP posts (Afghanistan, Iraq, Pakistan), but Ambassador Powell herself ain’t going there. She was in Pak seven years ago before the civilian uplift and before State bundled it up as part of AIP.  And now she is going to New Delhi, India, a 15% COLA and a 20% hardship post. What are you grumbling about?  India is almost an AIP post, and really — given its close proximity to Pakistan shouldn’t it count as a priority post also without the flying bullets? Wonder where the Deputy DGHR going for onward assignment? Don’t know but we’ll sure hear about it.

Col. Michael Howard, commander, 4th Brigade Combat Team,  25th Infantry Division,
escorts senior State Department representatives, Ambassador Nancy Powell, Ambassador
Joseph Mussomeli, and Dr. Ruth Whiteside at Forward Operating Base Salerno
in Khost province, eastern Afghanistan, Oct. 14. Representatives visited various areas
within the provinces  of  Paktya, Paktika, and Khowst to assess
the security and governance in the area.
Photo by Staff Sgt. Marcus Butler

In any case, if confirmed, the reportedly 64-year-old nominee would succeed Tim Roemer, who resigned from his post in April 2011 following a two-year stint as U.S. envoy to India.  And if all goes well, this would be Ambassador Powell’s 5th ambassadorial appointment.

Besides the issue of an onward assignment, I find this a rather curious nomination in terms of timing.  It does not look like she will get a confirmation hearing between now and the end of the year. So she would need to be renominated next year. Depending on how things are in the Senate, she could have her confirmation hearing within the first three months. Or not.

I recognize that 2012 is an election year but Ambassador Powell is a career diplomat.  The presidential election outcome should have limited bearing on her tenure.  Typically in a political transition, career appointees with some exceptions are allowed to serve their full term, which is normally three years. Except that Ambassador Powell is a prospective candidate for what I’d call, State Trek’s “airlock.”

If her Wikipedia entry is correct and she was born in1947, she would turn 65 next year. She would run right smack of the mandatory retirement age under the Foreign Service Act of 1980. Which means, her ambassadorial tenure in New Delhi could be a short 8-10 months or less depending on when she would get her Senate confirmation or when is her actual birth month. Normally, FSOs are supposed to retire on the last day of the month they turn 65.

Spending 2-3 months on confirmation preparation for a tenure that would not even last more than 12 months seems like a questionable allocation of resources. Also the USG has to pay for her entire relocation to India.  Retired diplomat Peter Burleigh (who served as Ambassador to Sri Lanka and the Maldives, and the UN) has been acting as Charge d’affaires at U.S. Mission India since Mr. Roemer’s departure last spring. Two consecutive one-year tours of the chief of mission in India would not have any impact on continuity, priorities and mission effectiveness, of course.

But it gets better.  Apparently, there is also such a thing called the Foreign Service Standard Operating Procedure D-01:

(click on image for larger view)

In all of US Embassy India’s constituent posts, only Kolkata is considered an HDS post.  So, if the SOP above is current, why is Ambassador Powell, a career member of the Foreign Service even nominated for New Delhi when it seems she would hit 65 in less than 24 months?

I bring this up for good reason.  See, the given justification why Dr. Elizabeth Colton’s assignment to Algiers was withdrawnn according to her age discrimination court filings was that “she would be unable to fulfill a two year tour because of the “statutory retirement requirements.”

And yet, here the State Department has recommended and the WH nominated somebody who will be legally kicked out under the law for being officially old next year.  The only reason this would not seem like a questionable allocation of resources is if a decision is already made that the Director General, Ambassador Powell, if confirmed, would not be mandatorily retired next year. Yeah, because there is something called — whatchamaculit?  A mandatory retirement waiver or something called an extension of service if it’s “in the public interest.”

(click on image for larger view)

Um, wait — what’s that? Ambassadors are exempt from “officially” getting old? Sec. 812 of the Foreign Service Act of 1980 says that “Any participant who is otherwise required to retire under subsection (a) while occupying a position to which he or she was appointed by the President, by and with the advice and consent of the Senate, may continue to serve until that appointment is terminated.”

So if Ambassador Powell gets confirmed, and I see no reason why she won’t get senate confirmation given that this would be her 6th, she could serve from 2012-2015.  Until she’s 68.  No mandatory retirement waiver even required.

Now, one of the majority arguments for mandatory retirement in the Foreign Service the last time it was litigated to conclusion has always been that the Foreign Service involves extended overseas
duty under difficult and often hazardous conditions, and that the wear
and tear on members of this corps is such that there comes a time when
these posts should be filled by younger persons. Mandatory retirement,
it is said, minimizes the risk of less than superior performance by
reason of poor health or loss of vitality. The Court noted the “common
sense proposition that aging — almost by definition — inevitably wears
us all down.”

It is good to know that ambassadors unlike regular
members of the U.S. diplomatic corps are not afflicted by this “common
sense proposition” of aging.

So there you go — there are rules and there are rules, and just as important, there are exceptions to the rules.  The 1% and 99%, even in the Foreign Service — who knew?

On a related note, Dr. Colton who I heard was nominated for the Edward R. Murrow Award for Excellence in Public Diplomacy for her work in Egypt this past year (a nomination gobbled up by a black hole never to be heard of again), and was forced to retire last September is scheduled to appear before the U.S. Court of Appeals for her age discrimination case against the State Department.

 

 

Updated with additional info on MRA under the FS Act of 1980 12/18.

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September 19, 2011 · 4:02 am

Colton v. Clinton Goes to the Court of Appeals …. And Oh, Who Are We Going to See in Kabul Next, Wolf Blitzer?

Last year, the DC District Court Judge Richard J. Leon rejected FSO Elizabeth Colton’s ADEA claims against Secretary of State Clinton and upheld the Foreign Service Act’s mandatory retirement provision.

The Court’s decision included the following which bears repeating here:

“Colton’s allegation that the Secretary of State’s refusal to grant her an extension pursuant to § 4052(b) was a discriminatory act is unavailing. Although the mandatory retirement provision grants the Secretary the discretion to retain a person for up to five years past the mandatory retirement age if in the “public interest,” there is no requirement that the Secretary do so..”

Dr. Colton had rotated out of Karachi in the middle of the district’s great floods and was granted a one-year extension for an assignment at the U.S. Embassy in Cairo.   The Legal Times citing court records reported that on Aug. 4, the State Department told Colton via e-mail that her mandatory retirement had been postponed until Sept. 2011 and that she had been approved to serve as the information officer for the U.S. Embassy in Cairo. The local press reported her arrival in Egypt on September 2010 here.

Dr. Colton was asked to jumped out of the water in Pakistan and was sent to Egypt where she jumped into the fire. Need we mention that she was at post before, during, and after the Egyptian Revolution like all other core embassy employees younger than her?  We know because we continue receiving the embassy press updates all that time.

That extension should run out just about now.   But I understand that the case has now gone to the Court of Appeals where Dr. Colton was granted until November 21, 2011, to file her appellant’s brief.

When she gets thrown out the airlock at 66 when that one-year extension is done, I supposed it just shows that there is no such thing as in the “public interest” when it comes to midlevel public diplomacy professionals even with the State Department’s persistent staffing gaps in that cone, and despite the turmoil in the large swath of the Middle East.

As if to put emphasis on the notion of “public interest,” (or lack thereof), which of course, the Director General of the Foreign Service and the State Department gets to interpret, just when and how that is at play — we are happy to report that David Ensor, formerly of CNN and US Embassy Kabul and now of Voice of America has been replaced by former CNN/ABC correspondent Eileen O’Connor.

Yep, for the same position at the US Embassy in Kabul as Director of Communications and Public Diplomacy. See? Routine State Department job titles do not even cut the cake there.

Via the Potomac Flacks: “First reported in Politico’s “Playbook”, Eileen O’Connor has been named the new Communications Director and Director of Public Diplomacy at the U.S. Embassy in Kabul, Afghanistan, succeeding David Ensor.  O’Connor is currently Counsel in the law firm McDermott, Will and Emery.  She is a former CNN and ABC foreign correspondent, who over a 24-year career in journalism was based in London, Moscow, Tokyo and in Washington, DC.”

Over a decade ago when the State Department’s own State Magazine picked Dr. Colton as an interesting specimen among FSO newbies, the magazine writes:

Ms. Colton also worked as a journalist with firsthand experience abroad. She reported for Asia Week, a Reuters magazine, and was a London-based television producer for both NBC and ABC covering the Middle East and North Africa. In 1981, she won an Emmy for two ABC Nightly News pieces on Libya. Later she established Newsweek’s Middle East bureau in Cairo. The Waterford, Va., resident’s coverage of the Persian Gulf War prompted National Public Radio to offer her a job as its State Department correspondent.

Remember that group of Iraqi soldiers who surrendered to a journalist? You guessed it.

They gave up to NBC radio correspondent Liz Colton.

Read more about her in  Colton v. Clinton: Expeditionary Diplomat Booted Off Career Ladder, Too Old

Any how — we are supposed to understand that there is no “public interest” in the extension of this career diplomat’s tenure past the mandatory retirement age, no matter how excellent her service in the field of public diplomacy because she is too old?  Like I said before but let me say it again — that super sucks!

No matter that she is serving in one of the top deficit cones in the Foreign Service? Ditto.

No matter that she is serving in the midlevel ranks where there occur the most staffing gaps? Ditto.

Should we, therefore, conclude that while there is no/no “public interest” for the State Department to extend its “oldies but goldies” employees who clearly have the chops, the hiring of sorta big name journalists for its big time public affairs shop in the war zone is/is in the country’s “public interest?”

Like there isn’t anyone in all of the State Department’s career corps  qualified to run the US Embassy Kabul’s press shop? What have they done to all the qualified career professionals in public affairs, throw them all out the airlock because they’ve turn 65?

I’m curious just how much taxpayer money goes to this kind of “public interest.”

And who, pray tell are we going to see in Kabul next, Wolf Blitzer? Presumably, Ms. O’Connor will have a one-year tour at the US Embassy Kabul. So for 2012-2013, can we please, please vote who we should have there next?

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November 10, 2010 · 10:29 pm

Miller v. Clinton: Amcit FSN takes State Dept to Court for Age Discrimination

This case pop up in the DC District Court.  Below is excerpted from the court document:

Plaintiff John R. Miller is a United States citizen who was employed by the Department of State as a safety inspector at the United States Embassy in Paris, France, when he was terminated by defendant Secretary of State Hillary R. Clinton solely on the basis that he had turned 65 years of age. Plaintiff claims that this violates the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 633a. Defendant has moved to dismiss for failure to state a claim on grounds that the ADEA is not applicable and for lack of subject matter jurisdiction on grounds that sovereign immunity bars plaintiff’s claims for compensatory damages. Plaintiff has filed a cross-motion for summary judgment as to liability. As explained herein, the Court will grant defendant’s motion to dismiss for failure to state a claim and deny all other motions as moot.

BACKGROUND

The material facts of this case are not in dispute.1 The Department of State hires three categories of employees: Foreign Service employees, Civil Service employees, and Locally Employed Staff. (Def.’s Mot. to Dismiss at 3.) Locally Employed Staff are individuals who are hired abroad at one of the Department’s overseas embassies or consulates. (Id.) These individuals can either be hired as “members of the Service” under section 303 of the Foreign Service Act, 22 U.S.C. § 3943, or under the section 2(c) of the Basic Authorities Act, 22 U.S. C. § 2669(c), which authorizes the Secretary of State to “employ individuals or organizations, by contract, for services abroad.”

Plaintiff was hired as Locally Employed Staff under section 2(c) of the Basic Authorities Act to work at the United States Embassy in Paris, France. (Compl. ¶¶ 1, 19.) Section 2(c) states in its entirety that the Secretary of State may

employ individuals or organizations, by contract, for services abroad, and individuals employed by contract to perform such services shall not by virtue of such employment be considered to be employees of the United States Government for purposes of any law administered by the Office of Personnel Management (except that the Secretary may determine the applicability to such individuals of subsection (f) of this section and of any other law administered by the Secretary concerning the employment of such individuals abroad); and such contracts are authorized to be negotiated, the terms of the contracts to be prescribed, and the work to be performed, where necessary, without regard to such statutory provisions as relate to the negotiation, making, and performance of contracts and performance of work in the United States.

22 U.S.C. § 2669(c). Under the language authorizing the Secretary to “determine the applicability to such individuals . . . of any other law administered by the Secretary concerning the employment of such individuals abroad,” defendant applied section 408 of the Foreign Service Act, 22 U.S.C. § 3968, to plaintiff. Section 408 by its terms governs the employment of foreign nationals and certain U.S. citizens appointed as “members of the Service,” the other category of Locally Employed Staff hired by the Department of State. 2 (Def.’s Mot. to Dismiss at 5-6.) It requires defendant to establish compensation plans that are, “to the extent consistent with the public interest,” “based upon prevailing wage rates and compensation practices (including participation in local social security plans) for corresponding types of positions in the locality of employment,” with the exception that U.S. citizens are to be paid at or above the U.S. minimum wage regardless of local wage rates. 22 U.S.C. § 3968. Additionally, for U.S. citizens, defendant is to “define those allowances and benefits provided under United States law which shall be included as part of the total compensation package, notwithstanding any other provision of law” other than the U.S. minimum wage, the Social Security Act, and Title 26. Id.

For Embassy employees in Paris, France, the Local Compensation Plan (“LCP”) contained a “Retirement” clause which stated that “[a]ge 65 is the mandatory age limit for all employees under the LCP” (Def.’s Mot. to Dismiss, Ex. B, at 1), as that was the prevailing practice among employers in France. (Def.’s Mot. to Dismiss at 7.) Defendant applied section 408 to plaintiff by incorporating this LCP into paragraph 5(2) of plaintiff’s employment contract. (Id., Ex. A, at 1.)

While plaintiff was working as an Embassy safety inspector under a one-year contract extension that was to expire in October 2007, he was notified that he would instead be terminated on July 23, 2007, as he would be turning age 65 on that date. (Pl.’s Opp’n to Def.’s Mot. to Dismiss [“Pl.’s Opp’n”] at 5, 7.) Plaintiff sought, but was denied, a one-year extension of his employment. (Compl. ¶ 1.) On July 30, 2007, he filed a complaint of discrimination with the Department of State, alleging that his termination based on age violated the federal employees provision of the ADEA, 29 U.S.C. § 633a(a), which states that “[a]ll personnel actions affecting employees . . . who are at least 40 years of age (except personnel actions with regard to aliens employed outside the limits of the United States) . . . in executive agencies . . . shall be made free from any discrimination based on age.” (Compl. ¶ 21, Ex. A, at 1.) On January 7, 2008, while his discrimination claim was pending before the Department of State, plaintiff filed a complaint with the Equal Employment Opportunity Commission (“EEOC”). (Compl. ¶¶ 21-22.) The EEOC dismissed plaintiff’s complaint for failure to state a claim, and the Department of State implemented that decision. (Compl. ¶ 22, Ex. B.)

Plaintiff then filed the instant lawsuit seeking, inter alia, compensatory damages, reinstatement, back pay, attorneys’ fees, and declaratory and/or injunctive relief for defendant’s alleged violation of the ADEA. (Compl. at 7-8.) Defendant has moved to dismiss for failure to state a claim on the ground that the ADEA does not apply to plaintiff. (Def.’s Mot. to Dismiss at 1-2.) Defendant also asserts that sovereign immunity bars any claim for compensatory damages. (Id. at 2.) Plaintiff has cross-moved for summary judgment as to liability. (Pl.’s Cross-Mot. for Summ. J. at 3-4.)

Active links added above. Read the whole thing here.

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September 29, 2010 · 4:48 pm

Quickie: Reconstruction Chief Quits, Putting ‘Civilian Surge’ in Doubt

Ambassador Herbst heads to NDU’s Center for Complex Operations.
Via Spencer Ackerman of Danger Room: Reconstruction Chief Quits, Putting ‘Civilian Surge’ in Doubt:

Most observers of Afghanistan say the war doesn’t have a prayer if the U.S. can’t send a cadre of civilian experts — diplomats, engineers, farmers — to rebuild Afghanistan. But on Friday, the diplomat in charge of building that force quietly resigned. Uh oh.

John E. Herbst, a 31-year veteran diplomat, has been the State Department’s coordinator for reconstruction and stabilization since 2006. Set up by the Bush administration in 2004, his office, known as S/CRS, sought to create precisely that legion of civilian reconstruction experts to send abroad when crisis strikes. Danger Room has learned that despite building the so-called Civilian Response Corps up from a handful of diplomats, Friday was Herbst’s last day on the job.

Ambassador Robert Geert Loftis, who helped negotiate the 2008 accord to get U.S. troops out of Iraq, started yesterday as S/CRS’s acting coordinator; State’s website just announced the leadership change today.
[...]
Herbst dealt with a lot of challenges as S/CRS’s second chief. Although the Bush administration created the office in 2004, Congress didn’t really fund it until 2008, hobbling its goal of creating a standing interagency crew of governance, agriculture and building experts ready to operate overseas.

Since then, Herbst pulled together what’s become an $800 million effort that claims around 1100 federal civilian employees. But in reality, only about 300 of them can deploy at any given time, fewer than two U.S. Army companies. And while the corps has sent civilians to Afghanistan, Congo and Sudan, the State Department’s powerful regional bureaus, special envoys and embassies have largely sidestepped it.

Take Afghanistan. In the Obama administration’s much-hyped “civilian surge,” corps members have helped the U.S. embassy and the military write a key planning document last year. But Herbst has complained that it’s been otherwise ignored. American diplomacy and development work in conflict areas remains largely a military job. In Afghanistan, U.S. infantrymen politic with local potentates on reconstruction projects. The Army is thinking about bolstering troops’ negotiation skills on the expectation that the civilian diplomats will stay at home.

Herbst has eyed the exits for awhile. In July, the National Defense University named him its next director of its Center for Complex Operations. But the future of his now-vacated office and the corps he built is less secure. The Quadrennial Diplomacy and Development Review, expected as soon as next month, will likely recommend a structural facelift for both.

Ambassador Herbst writes, “After a long and rewarding career, I have decided to retire from the Foreign Service, and move on to other challenges. In parting, I wanted to take a look at the beginning of the Office and discuss what a difference we have made in just a few short years.”
Read his reflection as S/CRS Coordinator — A Look Back: Ambassador Herbst Retires, Reflects on Four Years as Coordinator

 

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September 28, 2010 · 3:47 am

Colton v. Clinton: Age Discrimination Case Fails in DC Court

Old People CrossingImage by schnaars via FlickrOn September 24, Judge Richard Leon of the District Court for the District of Columbia dismissed FSO Elizabeth Colton’s age discrimination case against the State Department.  Below are selected excerpts from the Memorandum of Opinion:

On the retaliation claim:
[C]olton has failed to comply with her statutory obligation to notify the EEOC within 180 days after the alleged unlawful practice-i.e., retaliation-occurred. As a result, her retaliation claim in Count III of the Complaint must be dismissed in its entirety.

On the non-promotion:
The failure to promote was included as an additional act of discrimination and retaliation in her First Amended Complaint filed on October 22, 2009. See id. As discussed above, the plain language of § 633a(d) requires plaintiff to have filed notice of her intent to sue within 180 days “after” the allegedly “unlawful practice” occurred. Since it was impossible for the January and April 2009 notices to include any allegations of the purported failure to promote in October 2009, Colton would have had to file another amended notice to comply with the statutory prerequisites to suit. See Morgan, 536 U.S. at 114 (finding failure to promote to be a “discrete act”). As she has failed to do so, to the extent that plaintiffs discrimination claim in Count I is based on the agency’s decision not to promote her, it must also be dismissed.

More below:

In Count I, plaintiff claims that the State Department discriminated against her on the basis of age by: (1) denying her the two-year position in Algiers; (2) failing to assign her to a position “equivalent” to the Algiers position; (3) denying her requests for an extension of service under 22 U.S.C. § 4052(b)(2); and (4) failing to promote her in October 2009. See CompI. ~ 91. With the exception of the failure to promote allegation,
which is not properly before this Court as explained above, plaintiff is, in effect, asserting that the State Department discriminated against her by complying with and enforcing the statutorily mandated age of65. This claim must fail as a matter oflaw, however, because our Circuit has already held that the mandatory retirement provision Colton is challenging here is a valid exception to the ADEA. See Strawberry v. Albright, 111 F.3d
943,947 (D.C. Cir. 1997).
[...]
The Circuit Court found that Congress’s reenactment of the mandatory retirement age in the Foreign Service Act of 1980-which raised the mandatory retirement age from 60 to 65-after the ADEA was made applicable to federal employees reflected Congressional judgment that “the ADEA’s general provision on age discrimination does not prohibit enforcement of the mandatory retirement provisions.” Id.; see also Kimel v. Florida Bd. of Regents, 528 U.S. 62, 68-69 (2000) (“Under the current ADEA, mandatory age limits for law enforcement officers and firefighters-at federal, state, and local levels-are exempted from the statute’s coverage”); Stewart v. Smith, 673 F.2d 485,492 (D.C. Cir. 1982) (finding maximum age rule for federal law enforcement officers to be an exception to the ADEA).
[...]
In light of this controlling authority, plaintiff’s challenge to the enforcement of the mandatory retirement provision must be dismissed. Her allegations of discrimination based upon the failure to assign her to the Algiers position simply reflect her disagreement with the defendant’s implementation and enforcement of the mandatory retirement provision. Plaintiff admits that the Algiers position or, for that matter, any other two-year tour of duty beginning in Mayor June 2009 would have required her to serve nine or ten months past her mandatory retirement age. See Compl. ~ 51. Colton also admits that she did not view any of the available one-year assignments as “equivalent.” See id. ~~ 64, 72. Thus, plaintiffs ineligibility for the Algiers assignment or any other assignment she thought “equivalent” resulted from enforcement of the mandatory retirement provision of the Foreign Service Act and, therefore, is not actionable under the ADEA.
[...]
What Colton fails to acknowledge is that she was denied the Algiers position because a/the mandatory retirement provision, which our Circuit has already held to be an exception to the ADEA. She further attempts to distinguish Strawberry by arguing that, unlike that plaintiff, who challenged his mandatory retirement after being forced to retire, she is complaining of alleged acts before she turned 65. As the defendant points out, this argument, if accepted, would subject the defendant to suit for all actions taken prior to the actual date that an employee must retire under the Foreign Service Act, even when the challenged acts are taken to implement or enforce the requirements of the mandatory retirement provision. Such a result is, of course, nonsensical. Simply put, it is irrelevant whether the challenged acts occurred before or after plaintiff s mandatory retirement, and it is of no moment when the suit is brought. The only pertinent question is whether a challenged act was undertaken to implement or enforce the provision. If so, then the ADEA’ s general prohibition on age discrimination does not apply. See Strawberry, 111 F.3d at 947.
[...]
Similarly, Colton’s allegation that the Secretary of State’s refusal to grant her an extension pursuant to § 4052
( d) was a discriminatory act is unavailing. Although the mandatory retirement provision grants the Secretary the discretion to retain a person for up to five years past the mandatory retirement age if in the “public interest,” there is no requirement that the Secretary do so.
[...]
Colton is woefully misguided to imply that this Court can and should disregard Supreme Court precedent if it appears outdated. The Supreme Court alone can overrule its own precedents, and the fact that a plaintiff articulates a new theory as to why a different result should be reached is insufficient to revisit a settled issue.

The Memorandum of Opinion is here.

We are still trying to reach Dr. Colton’s lawyers for a statement. 

Sorry folks, there won’t be any show for now. Please mind the old people sign (political appointees, civil servants and contractors excepted, of course).

Later ….

This made me think of John Scalzi — probably because in his Colonial Defense Forces, you have to be 75 to sign up for the Army;  his Colonial Union want people who who carry the knowledge and skills of decades of living to fight their wars.

But not yet, not here, not now.    

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