State Dept’s Conduct and Disciplinary FAM Regulations — Still as Clear as Mud?

Posted: 3:54 pm EDT
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On March 17, the American Foreign Service Association (AFSA) wrote to Arnold Chacon, the Director General of the Foreign Service and the State Department’s top HR official requesting clarity on the applicability of 3 FAM to career and political/non-career employees of the oldest executive agency in the union. (see AFSA Politely Asks the State Dept: Is Adherence to the Foreign Affairs Manual Optional For Some?NewsFlash: “The FAM is not a regulation; it’s recommendations.” Hurry, DECLINE button over there!).

A long time Foreign Service hand told us that the practice has usually been that if a politically appointed State Department official or ambassador violates the Foreign Affairs Manual conduct and disciplinary regulation, that matter is generally raised with the sponsor of the non-career appointee.  Which typically means, the White House.  The infraction is then reportedly handled outside of the State Department system.  In rare cases, the Office of Inspector General is called in with the approval of the secretary of state. This is, apparently not the practice at DOD where political appointees are warned that DOD regulations and enforcement system apply to them equally.

We know that DGHR did respond to AFSA’s inquiry towards the end of Bob Silverman’s tenure but we were told to wait for the incoming elected officials to release the response. Last month, we sent a follow-up email to new AFSA president Barbara Stephenson asking if AFSA can share the DGHR’s clarification on the applicability of the FAM to non-career appointees.  To-date we have received only radio silence from AFSA’s Barbara Stephenson and her VP. We can appreciate why some official correspondence between AFSA and DGHR under special circumstances should be under wraps but what good reason is there not to respond to a solicitation for information on this matter?

A source on background did provide us what DGHR sent to AFSA in response to its March 17 inquiry.

AFSA was seeking clarity as to the provisions in 3 FAM.  In his response, the Director General of the Foreign Service (DGHR) specifically mentions 3 FAM 4300 and 3 FAM 4500 regarding conduct and disciplinary standards and how they might be applied to non-career appointees as opposed to career employees.

DGHR Arnold Chacon writes with an assurance, “From the outset let me assure you that 3 FAM regulations are much more than “guidelines.” They are derived from law and for govemment-wide regulation and are directives to State Department personnel. As you are aware, 3 FAM governs all pertinent personnel policies, practices and matters affecting conditions of employment, most if not all of which as it pertains to Foreign Service is negotiated as appropriate with AFSA.”

DGHR Chacon further writes, “Regarding conduct and discipline of non-career appointees, I can say with confidence that all forms of misconduct are taken seriously by the Department and will be dealt with accordingly. The FAM, by its terms, applies to Schedule A and B appointees. lf a Schedule C or other political appointee were to allegedly commit misconduct, then the State Department and the White House would work in concert to review the situation, take action to prevent abuses, and, if appropriate,  remove the employee. You can be assured that misconduct will always be addressed and dealt with in a fair, thorough and responsive manner, while respecting the right of due process and adherence to the tenet of like penalties for similar offenses.”

Last month, the question of the applicability of the FAM, related to the secretary of state also surfaced during a Daily Press Briefing (see Question of the Day: Is the Secretary of State bound by the rules of the Foreign Affairs Manual or not?). We note the following in a blog post:

The January 2015 OIG report, Review of Selected Internal Investigations Conducted by the Bureau of Diplomatic Security (pdf) includes the following:

[The] Office of the Legal Adviser staff told OIG that the FAM’s disciplinary provisions do not apply to Ambassadors who, as in this instance, are political appointees and are not members of the Foreign Service or the Civil Service.

According to the OIG report, the Under Secretary for Management disagrees with this interpretation:

[T]he Under Secretary of State for Management advised OIG that he disagrees with the Office of the Legal Adviser interpretation, citing the provisions in the Foreign Service Act of 1980 which designate Chiefs of Mission appointed by the President as members of the Foreign Service. See Foreign Service Act of 1980, §§ 103(1) & 302(a)(1) (22 USC §§ 3903(1) & 3942(a)(1)).

So to sum up, the Office of the Legal Adviser has the opinion that the FAM’s disciplinary provisions do not apply to Ambassadors and other political appointees because they are not members of the Foreign Service or the Civil Service. “M” disagreed with that interpretation.  DGHR, an office reporting to “M” has the opinion that the FAM’s disciplinary provisions do/do apply to Schedule A and B appointees.  But note the careful wording in the DGHR’s response as he makes a distinction about Schedule C/political  appointees. He could have said straight up that the FAM applies to Schedule A, B, and C appointees, he did not.

So, there you have it, still as clear as mud?

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Court orders @StateDept to return Yemeni-American’s improperly revoked U.S.passport

Posted: 2:21 am EDT
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Back in April, a San Francisco man sued the State Department in federal court, claiming that American embassy officials in Yemen illegally revoked his passport and left him stranded in that country for more than a year. This passport revocation case was just one in a string of lawsuits alleging improper revocation of passports by the U.S. Embassy in Yemen.

On October 13, the U.S. District Court of the Northern District of California ordered the State Department to return the U.S. passport of Yemeni-American Mosed Shaye Omar which was revoked “based on the involuntary statement he provided at the U.S. Embassy in Sana’a on January 23, 2013.”

We suspected that the State Department would use its ace in a hole, which is Haig v. Agee, a ruling that upheld the right of the executive branch to revoke a citizen’s passport for reasons of national security and the foreign policy interests of the U.S. under the Passport Act of 1926, and it did. But the court was not persuaded.

This is not the only passport revocation we’ve heard out of US Embassy Sana’a.  But this is one of the most troubling cases. What kind of rules book was used there? It does not appear to be the Foreign Affairs Manual. And what’s the purpose of the Office of Adjudication if there is no stated burden of proof, and there are no rules governing the hearing itself?  We understand that there are/were approximately a hundred cases of passport revocation done at the US Embassy in Yemen. We don’t know if the Yemeni-Americans with revoked U.S. passports were issued single return passports to the United States, or were left stranded in Yemen. A hundred cases are not isolated cases. Frankly, we hope to see the Office of Inspector General look into this.

  • Plaintiff contends that his due process rights were violated when the State Department revoked his passport based on the involuntary statement he provided at the U.S. Embassy in Sana’a on January 23, 2013. […] The statement was made after he had been detained at the Embassy for more than nine hours without food, water, or medication that he needs for his serious medical conditions; no one advised him of his right to leave, to be silent, or his right to consult an attorney; he did not read the statement and no one read the statement to him, and, to the contrary, it was affirmatively misrepresented to him that by signing the document his passport would be returned—the passport he required to return to the United States to obtain his needed medical care. Even if he had been given the opportunity to read the document, he would not have understood it as his English is not very good and his eyes were blurry and he was not feeling well due the deprivation of food, water, and medicine. He signed the statement without knowing its contents because he believed that was the only way to get his passport back.[…] Plaintiff signed the statement as “Mosed Shaye Omar.” It is puzzling, to say the least, why someone who understood that he was signing a confession that his true name is something other than Omar would sign the so-called confession under the allegedly false name Omar. Thus, this signature is consistent with Plaintiff’s testimony and further supports a finding that the statement was unknowing and involuntary.
  • The Hearing Officer based his revocation decision exclusively on the January 23 statement.
  • The Hearing Officer did not apply any standard of proof.”  [T]he same burdens that you might face in a courtroom don’t necessarily apply in this hearing.”
  • In resting his decision solely on the sworn statement, the Hearing Officer faulted Plaintiff for failing to provide evidence from individuals within Yemen who could vouch for his identity prior to his immigration to the United States—over 40 years ago. […] The Hearing Officer thus improperly shifted the burden of proof and faulted Plaintiff for not obtaining documents that the government itself acknowledged were nearly impossible to obtain.
  • Nor does it appear that Defendant Sprague, Deputy Assistant Secretary for Passport Services, applied a particular standard of proof to her review as she merely signed her name in the approved line on the Hearing Officer’s recommendation.
  • The Secretary claims that once presented with the “confession” it had no choice but to revoke the passport; it could not release the passport when it believed it was obtained with a false name. At the same time, however, for the more than two and half years since his passport was revoked, the United States has not filed any action, administrative or otherwise, to challenge Plaintiff’s citizenship. Instead, it has made it repeatedly clear that it is not challenging his citizenship and, indeed, if Plaintiff filed an action to reaffirm his citizenship, the government candidly surmised that it might argue that such lawsuit does not present an actual case or controversy because the government does not contest Plaintiff’s citizenship. (Dkt. No. 32 at 21- 25.) In other words, the government apparently believes it is proper to revoke a United States citizen’s passport on the grounds that he is not the person that the United States agreed he was when he obtained his citizenship, but then take no steps to actually challenge the citizenship and to instead leave the citizen in a state of legal purgatory. Such tactics at the very least raise serious questions.
  • Defendants’ only asserted interest here is in protecting the public from having a United States citizen travel under his legal name because the government believes that 30 years ago he applied for citizenship under a false name. And the government has not sought to denaturalize the citizen despite having more than two years to do so. The government’s claim of hardship is further undercut by its Foreign Affairs Manual:

(d) Questionable Certificates of Naturalization and Citizenship.

(1) (SBU) By law, 8 U.S.C. 1443(e), Certificates of Naturalization or Citizenship are proof of United States citizenship. Accordingly, an individual remains eligible for a U.S. passport until his/her Certificate of Naturalization or Certificate of Citizenship is revoked by U.S. Citizenship and Immigration Services (USCIS) or a U.S. District court, or unless he/she is ineligible for passport services for reasons other than non-citizenship.

7 FAM § 1381.2(d) 6 (Dkt. No. 14-20 at 2). Thus, the government’s own guidelines provide that the proper course under circumstances similar to those present here is to move to revoke the applicant’s Certificate of Naturalization, not to withhold the applicant’s passport as was done here.

The Court notes that the USG admitted that the above quoted provision was in effect between January 2013 and December 2013. (Dkt. No. 19 ¶ 31.) The government contends that “Plaintiff has selectively quoted from the Manual in a way that distorts its meaning,” but according to the Court’s footnotes, the USG  did not “submit any other Manual provisions or explain how the above quoted provision means anything other than what it says.”

For the record, the State Department considers the section on passport revocation in the Foreign Affairs Manual as Sensitive But Unclassified material and this section of the FAM including the part cited above in court documents are not available for the reading public (also see US Embassy Yemen: Revocation of U.S. Passports, a Growing Trend?).

The Court’s decision:

The government revoked Plaintiff’s passport based solely on a written statement that Plaintiff signed without reading or understanding, and only after he had been deprived of food, water, and medication for hours and was desperate for return of his passport so he could travel to the United States to obtain medical care. Plaintiff has therefore established a likelihood of success on his claim that the revocation violated his right to due process and was therefore arbitrary and capricious. See Choy, 279 F.2d at 647. He has also raised at least serious questions as to whether Defendants applied the appropriate standard of review to his passport revocation and whether the revocation is an improper and incomplete collateral challenge to his citizenship. As the balance of hardships and the public interest tip sharply in Plaintiff’s favor, his motion for a preliminary injunction is GRANTED. Defendants shall return Plaintiff’s passport to him within 10 days of this Order.

This case is ongoing with a hearing scheduled for December 10, 2015 at 9:00 a.m.

Read in full here (court doc via Politico): Mosed Shaye Omar v. John Kerry, et.al.

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