DS Agents deployed to Iraq charged overpayment for overtime worked, State Dept demands repayment. Isn’t that like working for free?

This is one of those cases that makes me simply want to — well, puke.

These DS agents were sent to Iraq, according to court papers, “in support of State’s attempt to establish a diplomatic presence in Iraq, after the fall of Saddam Hussein’s regime.” They worked ungodly long hours under difficult conditions. They got paid for those hours worked. But see – there was a pay cap to how much you could earn over there. At that time, the pay cap was the $128,200 maximum available under level V of the Executive Schedule. Due to OT, these DS agents exceeded the maximum amount permitted.

So, the State Department basically slapped the agents head for not keeping track of their earnings and required the agents to pay back the “overpayment.” In short, to give back all dollar amount in excess of  $128,200 per individual, even if those constitutes payment for hours already worked. Does that sound fair? Nope, but that’s what happened. It was considered a “debt” that had to be collected. Subsequently, a law was passed to allow for a pay cap waiver for certain Feds. But the State Dept apparently refused to grant those waivers.

Below is what the Foreign Service Grievance Board (FSGB) reported to Congress in its annual report:

In Richard Lubow, et al. v. United States Department of State, 2010 U.S. Dist. LEXIS 80830 (D.D.C. 2010), the Court vacated in part the decisions of the Department of State and the General Services Administration Contract Board of Appeals that denied pay claims by five individuals who were initially compensated for overtime hours worked in Iraq and then had those payments recouped on the grounds that to the extent that the pay exceeded the maximum pay that was permitted to be paid pursuant to 5 CFR Part 550, for 2004, it was paid contrary to law. The Department demanded repayment of the overpayment of wages and further declined to waive repayment of that debt.

The Court found that neither the Department nor the GSA Contract Board of Appeals had considered whether the provisions of the Emergency Supplemental Act for Defense, the Global War on Terror, and Tsunami Relief of 2005 (“Appropriations Act of 2005”), which permitted federal agencies to waive the pay cap for certain federal employees in calendar year 2005, up to a maximum of $200,000, applied to payments made to the plaintiffs (grievants) during pay period 25 of 2004, which sums were actually paid in January 2005. The Board of Contract Appeals did not consider the legislation because it had not yet been passed when it reached its conclusions. The court further found that there was no indication on the record that the State Department had taken the 2005 pay cap waiver into account when it determined whether and how much debt the plaintiffs owed the Department. The FSGB did not rule upon the issue because the argument was never asserted before the Board as a basis for finding that the debt was not valid, in part. The court remanded the cases to the State Department and the Board of Contract Appeals for further consideration taking into account the effects of the Department’s August 2005 waiver of the premium pay cap as it would apply to plaintiffs’ earnings in pay period 25 of 2004. No decision on the remand has been reported to the FSGB as of this date.

I did some digging, because dammit, this just doesn’t sound right, does it?

Here are the five cases filed with the Foreign Service Grievance Board. You may use the numbers in bold below to search for the full documents in the FSGB unfriendly web:

FSGB No. 2006-033 | Grievant was assigned to [Named Post] from February [Year #1] until February [Year #2].  In November [Year #1], the Department notified grievant that his pay had reached or would shortly reach the statutory cap applicable to the total of base pay plus premium pay.  In April [Year #2], the Department notified him that of the total [Year #1] premium payments made to him, $10,514.98 ($10,669.69 minus a $154.71 Medicare payment) exceeded the cap and required reimbursement.

FSGB No. 2006-032 | Grievant was assigned to [Named Post] from January [Year #1] until December [Year #1].  In November [Year #1], the Department notified grievant that his pay had reached or would shortly reach the statutory cap applicable to the total of base pay plus premium pay.  In April [Year #2], the Department notified him that of the total [Year #1] premium payments made to him, $435.94 ($442.35 minus a $6.41 Medicare payment) exceeded the cap and required reimbursement.

FSGB No. 2006-031 | Grievant was assigned to [Named Post] from February [Year #1] until February [Year #2].  In November [Year #1], the Department notified grievant that his pay had reached or would shortly reach the statutory cap applicable to the total of base pay plus premium pay.  In April [Year #2], the Department notified him that of the total [Year #1] premium payments made to him, $5,702.69 ($5,786.60 minus an $83.91 Medicare payment) exceeded the cap and required reimbursement.

FSGB No. 2006-030 | Grievant was assigned to [Named Post] from February [Year #1] until February [Year #2].  In November [Year #1], the Department notified grievant that his pay had reached or would shortly reach the statutory cap applicable to the total of base pay plus premium pay.  In April [Year #2], the Department notified him that of the total [Year #1] premium payments made to him, $6,308.07 ($6,400.88 minus a $92.81 Medicare payment) exceeded the cap and required reimbursement.

FSGB No. 2006-029 | The Department concluded that grievant was “at fault” because he was aware of the premium pay cap and failed to track adequately the premium payments he received or take corrective action when his pay reached the cap. [Grievant], a Department of State (the Department, agency) Diplomatic Security Officer, appeals the Department’s denial of his request to waive the collection of $7,775.83 in premium pay that exceeded the applicable annual premium pay cap.

Each of the five grievants had in their record of proceeding with the FSGB the following:

“Grievant contested this decision and asked the Department to waive reimbursement under the authority of 5 U.S.C. 5584.  Grievant contended that he was not aware of the overpayment and that when he did become aware of it late in the calendar year, the Department did little to remedy the situation.  He attributed the error to Department inefficiency and stated that it was unfair and unjust for him to reimburse the government for work he performed in extraordinarily dangerous conditions.  He alleged that, even if he had been aware that he was reaching the pay cap, there was nothing he could do to reduce the premium pay owed to him.  Working the standard 40-hour workweek was not an option in [Named Post].  He also objected to the fact that a waiver of the premium pay cap was authorized for employees who served in [Year #2] in [Named Post], but not for those who served in [Year #1].”

In January 2010, the FSGB held that “The Department did not abuse its discretion in denying grievants a waiver of repayment of the premium payments they received for service in (country) in 2004 that exceeded the pay cap established by 5 CFR 550. (see Record of Proceeding | January 7, 2010 FSGB Nos. 2006-029, 030, 031, 032, 033). See the following overview.

Grievants were assigned to (country) in 2004.  In late November of that year, the Department notified them that the combined total of their basic and premium pay had reached or would shortly reach the cap imposed on such pay by 5 CFR 550.  In April of 2005, grievants were advised definitively that their pay had exceeded the cap, and they were directed to repay the excess premium payments. 

Grievants requested that the Department waive collection of the overpayment, citing the authority set forth in 5 U.S.C. § 5584.  The Department denied the request, advising grievants that they were “at fault” under the terms of 5 U.S.C. § 5584(b)(1), and thus, under the statutory criteria, a waiver could not be granted.  Grievants contested that decision in a grievance filed with the Department.  The Department denied the grievance and grievants appealed to the Foreign Service Grievance Board (Board).

In a decision issued July 28, 2008, the Board determined that grievants were not at fault for incurring the excess payments, and that the Department, therefore, was not precluded from granting the waiver.  The Board directed the Department to reconsider on the merits.  In its reconsideration, the Department determined that collection of the debts was not “against equity and good conscience” and would be “in the best interests of the United States” in accordance with the criteria established by the statute granting the Department waiver authority.  It again directed that grievants make repayment of the debts.  Grievants again appealed to the Board.

Grievants argued that it was unfair for the Department to require them to repay payments made to them for overtime actually worked under dangerous conditions when the Department, recognizing the inequity of such a situation, had raised the pay cap for those serving in Iraq in subsequent years.  The Department countered that the legislation authorizing the pay cap to be raised had only been passed the year after grievants’ service, and it did not apply retroactively.  It also contended that over thirty other employees in the same circumstances had been required to repay their debts and had done so, and that it would be inequitable not to require grievants to do so.

The Board found that the Department had applied the regulatory criteria and that there were equities on both sides.  It concluded, therefore, that the Department had not abused its discretion in denying the waiver.  The grievances were denied.

The lawsuit was subsequently filed in the U.S. District Court for the District of Columbia.  Although all FSGB docs posted online are stripped of grievant’s names and other identifying info such as post’s served, names of supervisors etc. the court document names the plaintiffs as Richard Lubow, Joseph Bopp, David Bennett, Frank Benevento and James Landis, each “a current or retired member of the State Department’s Bureau of Diplomatic Security, deployed to Iraq as Foreign Service Specialists.”

This lawsuit is about five DS agents but some thirty others who were affected by this policy opted to settle their “debts,” which means, they essentially worked those hours free for Uncle Sam. In the warzone.

In August 2010, U.S. District Court Judge John Bates ordered that “the decisions of Deputy Assistant Secretary of State Millete and the Board of Contract Appeals that plaintiffs owe a valid debt are REMANDED to the State Department and the Board of Contract Appeals, respectively, for additional consideration in light of the Department’s August 2005 waiver of the premium pay cap, which the Department has applied to earnings for work performed in pay period 25 of 2004.”

Approximately five years running to collect some $30,000 from these five agents; looks like that’s the bounced around time for these cases inside the system. Don’t tell me that Foggy Bottom does not have smarter eggs who can sort through this minor jungle. Dudes, it’s not like these agents did not work their butts off over these “overpayments” “debts” their earned money. 

I have not seen any update on the status after the court ruling. Hopefully this had been settled favorably but I cannot underestimate enough the unreasonableness of a bureaucracy.

Oh, by the way — how are we doing with collecting that $132 MILLION refund over the US Embassy construction in Iraq?

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US Court Dismisses Lawsuit Against State Dept for Voided Green Card Lottery

You must have heard about the green card lottery this year that the State Department voided due to computer error. The Department of State has determined in May that results of the selection process for the 2012 Diversity Immigrant Visa (DV) are void. Due to a computer programming error the results “did not represent a random selection of entrants” as required by U.S. law.  Click here to see Consular Affairs Bureau’s David Donahue who explained the problem.

In June, a lawsuit was filed against the State Department seeking a “motion for a preliminary injunction seeking to enjoin the defendants from voiding the results of the first lottery and conducting another.”  Last week, Judge Amy Berman Jackson of the U.S. District Court of the District of Columbia dismissed the lawsuit. Below is excerpted from the memorandum opinion dated July 14:

Congress established the diversity visa program to encourage and facilitate immigration to the United States from countries with historically low rates of immigration. See 8 U.S.C.§ 1153(c)(1). Each year, the U.S. Department of State (“State Department” or “Department”) administers a lottery program where approximately 100,000 randomly-selected “winners” are given the opportunity to apply for “green cards,” or permanent residence visas. Lottery winners do not receive the right to immigrate to the United States, but they do receive an opportunity to submit a visa application that will remain valid for the remainder of the fiscal year involved. This is a highly coveted prize, as winners may ultimately qualify for U.S. citizenship, and it provides a means of applying for a visa that does not depend upon sponsorship by an employer or a relative.

In October 2010, over 19 million people submitted entries for the diversity visa lottery for fiscal year 2012. When the results were announced in early May of 2011, it became apparent that more than 90% of the winners had completed their entries during the first two days of the thirty day submission period. The State Department decided to void the lottery results, and it announced that another lottery would be conducted in July 2011. By that point, about a quarter of the winners had already accessed the website and learned of their selection.

Plaintiffs were among the group who received notification that they had won the right to apply for visas. On behalf of themselves and the entire class of 22,000 individuals who learned of their winning status, they filed this action and a motion for a preliminary injunction seeking to enjoin the defendants from voiding the results of the first lottery and conducting another.1 The moving force behind the lawsuit is, as one plaintiff put it, “broken dreams.” McBrien Decl. ¶ 13. Plaintiffs have supplied the Court with a collection of impassioned declarations of lottery winners, tracing their path from exhilaration to despair. They write of themselves:

[T]he 22,000 were and are individuals who played by the rules; individuals who are friends of the United States; who are seeking only to pursue their own
American dreams . . .
Plaintiffs’ Application for Preliminary Injunction (“Pls.’ Memo”) at 8.

The Court is sympathetic to the plaintiffs’ plight. While it does not doubt that the emotional impact of the Department’s reversal has been painful and real, and that many of the plaintiffs have compelling reasons to seek to immigrate to the United States, it must take note of the fact that all of the others who submitted timely petitions during the thirty day period also “played by the rules . . . seeking only to pursue their own American dreams.” Pls.’ Memo at 8.

There are 19 million more stories, from other lottery participants, many of which may be equally or even more compelling, and it is for that reason that Congress determined that every applicant would have an equal chance of winning the right to apply for the visa. Defs.’ Opp. at 2. The Court cannot order the Department of State to honor a botched process that did not satisfy that regulatory and statutory requirements. Moreover, the Court does not find that it was arbitrary or capricious for the Department to decide to rescind a lottery that did not meet the single most important criterion for a drawing: a random selection. For the following reasons, then, the Court will deny plaintiffs’ claims for relief and dismiss the complaint.

Read the ruling on ILYA SMIRNOV, et al., vs. HILLARY RODHAM CLINTON, Secretary of State, et al., here.

The Green Card Lottery Program officially known as the Diversity Visa Program is part of the Immigration Act of 1990 and was designed to increase diversity in the U.S. immigrant population by providing visas to nationals of countries that have had low immigration rates to the United States. Applicants for the DV program participate in a lottery in which the winners are selected through a computer-generated random drawing. Annually, approximately 50,000 aliens enter the United States under the program.

The State Department explains in its handout that “the law states that no DVs shall be provided for natives of ―high-admission countries. The law defines this to mean countries from which a total of 50,000 persons in the Family-Sponsored and Employment-Based visa categories immigrated to the United States during the previous five years. Each year, U.S. Citizenship and Immigration Services (USCIS) adds the family and employment immigrant admission figures for the previous five years to identify the countries whose natives will be ineligible for the annual diversity lottery. Because there is a separate determination made before each annual E-DV entry period, the list of countries whose natives are not eligible may change from one year to the next.”

For DV-2011, natives of the following countries1 are not eligible to apply because the countries sent a total of more than 50,000 immigrants to the United States in the previous five years: BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PERU, PHILIPPINES, POLAND, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible. For DV-2011, no countries have been added or removed from the previous year’s list of eligible countries.

Interest in the diversity visa program as can be expected far exceeds the number of visas awarded each year. According to court documents, in 2011, 19 million entries were received for the lottery.

This is one of those programs that Congress created with no foresight into its unintended consequences. Not just that the lottery is based solely on luck so lottery winners may not have the extended family and economic support when they come to the United States.  But in the boom years of the 1990’s no one had foreseen the 9.2% unemployment rate in this country.  This is a program that will continue to be controversial, even unpopular in certain circles given the current economic realities and national security concerns.  But try not to beat up the State Department too much; our congressional reps created the law that made this possible, with no brakes in place.

Congress actually slugged this out in 2005.  You can read the transcript of that hearing here.  You can also check out the results of DV Lottery 2011 with the statistical breakdown by country.

Quickie: Aatish Taseer Explains Pakistan’s Special Edge

Aatish Taseer, British-born writer-journalist (b.1980), and the son of Indian journalist Tavleen Singh and late Pakistani politician/businessman Salmaan Taseer assassinated earlier this year by his guard  explains Pakistan’s special edge in a recent article in the Wall Street Journal. Mr. Taseer is the author of “Stranger to History: A Son’s Journey Through Islamic Lands.” His second novel, “Noon,” will be published in the U.S. in September. Excerpts below:

To understand the Pakistani obsession with India, to get a sense of its special edge—its hysteria—it is necessary to understand the rejection of India, its culture and past, that lies at the heart of the idea of Pakistan. This is not merely an academic question. Pakistan’s animus toward India is the cause of both its unwillingness to fight Islamic extremism and its active complicity in undermining the aims of its ostensible ally, the United States.
[…]
The primary agent of this decline has been the Pakistani army. The beneficiary of vast amounts of American assistance and money—$11 billion since 9/11—the military has diverted a significant amount of these resources to arming itself against India. In Afghanistan, it has sought neither security nor stability but rather a backyard, which—once the Americans leave—might provide Pakistan with “strategic depth” against India.
[…]
In order to realize these objectives, the Pakistani army has led the U.S. in a dance, in which it had to be seen to be fighting the war on terror, but never so much as to actually win it, for its extension meant the continuing flow of American money. All this time the army kept alive a double game, in which some terror was fought and some—such as Laskhar-e-Tayyba’s 2008 attack on Mumbai—actively supported.

Read the whole thing in WSJ: Why My Father Hated India.

Weekend World News Catchup: Expulsion, Appointments, Interviews, Defections, Arrests, New Embassies

Expulsion: Calls in Ireland for expulsion of papal ambassador over child abuse

“Revelations that the Vatican told Irish bishops they could conceal allegations of clerical child abuse have led to calls for the expulsion of the papal ambassador to Ireland, traditionally one of Catholicism’s most-devout strongholds.” {The National}.

Appointments India | Nirupama Rao to take charge as Indian envoy to US shortly

Outgoing foreign secretary Nirupama Rao would be the next Indian ambassador to the US, the Indian government announced on Saturday.  Rao will succeed Meera Shankar to become India’s second woman envoy to the US. {Times of India}

Appointments India | Interim U.S. Envoy to India Inherits Challenges

The U.S. has appointed Peter Burleigh as Chargé d’Affaires of its mission in India on an interim basis. Mr. Burleigh, who held the same post from April to July 2009, will serve until the White House nominates a permanent ambassador. He steps in at a time when the U.S. is trying to manage an increasingly complex relationship with India. {The Wall Street Journal}

South Korea | Female diplomats lead lonelier lives than males

Jeong, a 16-year veteran, left Seoul on a three-year assignment in 2008, but usually, and almost certainly for entry-level diplomats, overseas assignments are for five years – three years in an advanced country and two more years in a developing country. And that, in most cases, means separation for just as many years from their spouses or children.
[…]

Kim Sang-jin, head of personnel management at the Foreign Ministry, said about 95 percent of male diplomats are accompanied by their spouses when serving at an overseas post, while 95 percent of female diplomats go off without spouses.
[…]

To compensate for financial losses from spouses abandoning jobs, the Foreign Ministry provides a salary to spouses accompanying diplomats to overseas posts, but it is only equivalent to 25 percent of a diplomat’s salary. Even if money is sufficient, most men would not trade the money to leave after working in their fields for many years, some female diplomats said.  {Korea JoongAng Daily}

Interview: Foreign Policy with Our Man in Damascus, US Ambassador Robert Ford

U.S. Ambassador Robert Ford had a  wide-ranging telephone interview with Foreign Policy last week. “Ford sharply criticized the Syrian government’s continuing repression against peaceful protestors and called on President Bashar al-Assad to “take the hard decisions” to begin meaningful reforms before it is too late. Not, Ford stressed, because of American concerns but because of the impatience of the Syrian opposition itself. “This is not about Americans, it is about the way the Syrian government mistreats its own people,” Ford stressed repeatedly. “This is really about Syrians interacting with other Syrians. I’m a marginal thing on the sidelines. I’m not that important.” {Foreign Policy}

Interview: Mercury News with John Roos, U.S. Ambassador to Japan

Q In more than two decades in Silicon Valley, you honed negotiating skills in the land of tech. Now you are playing the role of diplomat. What has it been like to pivot from influential Silicon Valley lawyer to diplomat?

A Many of the same skill sets are brought to bear. Diplomacy is fundamentally working with people, bringing people together to deal with difficult issues. Obviously, the issues are very different. {Mercury News}

Defections: A second Burmese diplomat defects

“A Burmese diplomat has requested asylum in the United States, apparently in response to a crackdown by his government after the defection of a more senior diplomat earlier this month. Soe Aung, the fourth-ranking official in the Burmese Embassy in Washington, wrote to the State Department on Wednesday requesting asylum, according to the pro-democracy group U.S. Campaign for Burma. Soe Aung confirmed his defection in a brief interview with the Burmese Service of the Voice of America.” {WaPo}

Arrests: Turkey arrests 14 al-Qaida members planning US embassy attack

“Turkish police captured the 15 suspects in Ankara, the western city of Bursa and the nearby town of Yalova, and seized 700 kilograms (1,500 pounds) of chemicals used in bomb making, two assault rifles, ammunition and maps of Ankara. The suspects were planning to attack the US Embassy in Ankara and unidentified foreign targets, the the Anatolia. They were brought to police headquarters in Ankara on Tuesday night and were being questioned by anti-terror police.” {Today’s Zaman}

New US Embassy in Valletta, Malta:

Douglas Kmiec, former US ambassador to Malta and Professor of Law at Pepperdine University in California writes about the newly opened US Embassy in Valleta:  “What a new US embassy represents”

[…] Because of Malta’s geographic proximity to Libya, many have asked my view about American involvement in the Mediterranean region, and they seem to ask it with special curiosity upon learning that I helped superintend, along with Rick Mills, the completion of a $125.5 million new embassy compound. Knowing my general frugality (this former ambaxxatur cycles the 10 miles round-trip to and from his office at the university), they need to hear the basis for the beautiful, but pricey, new structure in Ta’Qali.
[…]
An embassy of sufficiently ample size and personnel is justified because it is reasonable to anticipate Malta’s own willingness – respecting her constitutional commitment to neutrality, of course (you see, I did learn something!) – to become an even more prominent “partner for peace”, by, for example, signing onto the multilateral reciprocal status of personnel memorandum. {Times of Malta}

New US Embassy in Benghazi, Libya?

U.S. Senators John McCain (R-AZ), Joe Lieberman (I-CT), Lindsey Graham (R-SC), and Marco Rubio (R-FL) today released the following statement regarding the Administration’s decision to recognize the Transitional National Council (TNC) as the legitimate governing authority of Libya:

“We welcome the Administration’s decision to recognize the Transitional National Council (TNC) as the legitimate governing authority of Libya. This is an encouraging step, which demonstrates America’s commitment to support the Libyan people as they fight to liberate their country from the Qaddafi regime and establish democracy. Recognition should now open the door for more robust U.S. and international support for the TNC, including facilitating their access to the frozen assets of the Qaddafi regime for the benefit of the Libyan people and to support the NATO mission. We strongly urge the Administration to remove any remaining obstacles to the TNC’s ability to gain access to these frozen assets as soon as possible. We hope that our allies and partners that have not yet recognized the TNC will now do so. We also urge the Administration to increase our diplomatic presence in Benghazi, designate a U.S. Ambassador to the TNC, and give the TNC’s representatives in Washington and New York full diplomatic rights and privileges.”