Rainey v. State Department: “Right-to-Disobey” (Precedential Decision)

Posted: 1:49 am EDT
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The following is a decision from the Merit Systems Protection Board, and considered a precedential decision,  one that can be cited as authoritative going forward.

Appellant: Timothy Allen Rainey
Agency: Department of State
Decision Number: 2015 MSPB 49
MSPB Docket No.: DC-1221-14-0898-W-1 Issuance
Date: August 6, 2015
Appeal Type: Individual Right of Action Action
Type: Retaliation

Whistleblower Protection Act Jurisdiction

The appellant filed an Individual Right of Action appeal alleging that the agency stripped him of certain job duties and gave him a poor performance rating after he refused to follow an order that would have required him to violate federal acquisition regulations and training certification procedures. The administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant’s claim of retaliation based on refusal to violate acquisition regulations and training procedures did not amount to a nonfrivolous allegation that he refused to obey an order that would require him to violate a law.

Holding: The Board affirmed the initial decision.

1. While employees are protected from whistleblower retaliation for refusing to obey an order that would require a violation of the law under 5 U.S.C. § 2302(b)(9)(D), the Supreme Court made clear in Department of Homeland Security v. MacLean,135 S. Ct. 913 (2015) that this protection does not extend to violations of an agency regulation or policy.

The MSPB assumed the employee appeals function of the Civil Service Commission and was given responsibilities to perform merit systems studies and to review the significant actions of OPM. State Department’s civil servants have appeals rights in the MSPB.  The employee also has a right to request review of the final decision by the United States Court of Appeals for the Federal Circuit.

Text of full ruling is here – 2015 MSPB 49 (pdf).

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U.S. Embassy France: U.S. Consular Agency Nice to Close Permanently on Sept 1, 2015

Posted: 1:36 am EDT
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Via U.S. Embassy Paris, August 21, 2015:

The U.S. Embassy to France and Monaco and the U.S. Consulate General in Marseille announce a consolidation of consular services in southern France in order to better serve the public and enhance security for customers and staff.  Effective September 1, 2015, the U.S. Consular Agency in Nice will close.  All routine and emergency consular services in the Marseille consular district* will be provided by the U.S. Consulate General in Marseille.  The closure reflects the U.S. government’s policy of providing the highest quality consular service to U.S. citizens and foreign nationals in a location that offers a secure environment for all concerned.

As of September 1, 2015, all U.S. passport applications, reports of birth abroad applications, and notarial services must be scheduled at either the U.S. Consulate General in Marseille or the U.S. Embassy in Paris. For emergency services in the Marseille consular district, U.S. citizens are advised to contact the consular section at the U.S. Consulate General in Marseille.  For emergency services in other regions of France, U.S. citizens are advised to contact the U.S. Embassy in Paris.

The OIG report of US Mission France from 2012 notes that  the Nice consular agency accepts passport applications and provides notarial services. It also says that a senior local employee with more than 40 years of consular experience essentially runs the office, making appointments for the part-time consular agent, who sees applicants on Wednesdays. Back in 2012, the Consulate General Marseille also referred all Federal benefits applicants to Nice. State/OIG notes that  the Social Security Administration funds a five-person Federal benefits unit at Embassy Paris that has responsibility for providing information and processing claims in France and regionally. The assistant in Nice, although knowledgeable about Federal benefits, is providing unreimbursed and duplicative services for customers living in the south of France. A long time to be working for Uncle Sam.

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Foggy Bottom’s Big Chill Freezes Even Retired Diplomat … Diplo Doggy Wins!

Posted: 1:01 am EDT
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For obvious reasons, we are unable to share the name of the retired diplomat here but we have permission to share this with our readers.

Retired FSO: I was planning on blogging about Hillary’s emails. Title: “If I Did What Hillary Did, I’d Be In Jail.”

Me: Great! Looking forward to reading it!

Retired FSO: But I won’t.

Me: Oh?

Retired FSO: Just read 3 FAM 4170. I’m retired. I can’t believe I really need to clear my blogposts with PA. I mean, I’d use common sense, you know? I wouldn’t be divulging stuff like, say, our nuclear launch codes, or the chronically malfunctioning air conditioning system at Main State. I’d just focus on how when you become a charter member of America’s political elite, the rules don’t apply to you. That’s all. 

Me:  Only stuff “of department concern” needs clearance. Max timeframe for blogs, five days.

Retired FSO: But they’ve made me jittery. I don’t fancy jail. They’d probably force me to watch re-runs of “Madame Secretary” every day; let me read only the FAM! The eighth amendment  doesn’t allow this kind of cruel and unusual punishment, but Mother State can be as vindictive as a Borgia dowager.

Me: Okay. So, does this mean you’ll stop blogging?

Retired FSO: Nah. Maybe I’ll just write about my pets from now on. Think anybody would read Diplo Doggy’s Adventures?

Me: I will. 

Retired FSO: We live in difficult times.

Via Giphy Commons

Via Giphy Commons

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