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Previously Announced DOD Nominee John J. Sullivan Now Slated to be @StateDept’s No. 2

Posted: 3:30 am ET

 

On March 7, President Trump nominated John J. Sullivan as General Counsel for the Department of Defense. According to the WSJ, Trump administration officials in recent days have reportedly decided to tap Mr. Sullivan instead for the State Department’s deputy secretary position. The nomination has yet to be announced

The following brief bio was originally released during the announcement of Mr. Sullivan’s nomination for DOD General Counsel earlier this month:

Mr. Sullivan was most recently a partner in Mayer Brown’s Washington, D.C. office and co-chair of the firm’s National Security practice. He has held senior positions at the Justice, Defense, and Commerce Departments, advising the Attorney General, the Secretary of Defense, the Secretary of Commerce, and the Counsel to the President on the most sensitive legal and policy issues. During his tenure at Mayer Brown, Mr. Sullivan focused his practice on the growing intersection of global trade and investment and national security. Prior to joining Mayer Brown, Mr. Sullivan served at the Department of Justice’s Office of Legal Counsel, where he was Counselor to Assistant Attorney General J. Michael Luttig. He advised senior officials on legal issues arising out of Operations Desert Shield and Desert Storm, and provided legal advice to the FBI, CIA, Treasury Department, and White House Counsel’s Office. Earlier in his career, he served as a law clerk for Associate Justice David H. Souter of the Supreme Court of the United States, and for Judge John Minor Wisdom of the United States Court of Appeals for the Fifth Circuit.

Mr. Sullivan received his bachelor’s degree in history and political science from Brown University and his law degree from Columbia University School of Law, where he was a Harlan Fiske Stone Scholar, Teaching Fellow, and Book Reviews Editor of the Columbia Law Review.

Mayer Brown has a more extensive Sullivan biography available online here: https://www.mayerbrown.com/en-US/people/John-Sullivan/

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Senate Confirms David Friedman as U.S. Ambassador to Israel in 52-46 Vote

Posted: 3:11 am ET

 

On March 23, the U.S. Senate confirmed David Friedman as U.S. Ambassador to Israel in a narrow 52-46 vote with two Democrats (Manchin (D-WV), and Menendez (D-NJ), joining the Republicans to approved the nomination (2 GOP listed as not voting – Isakson (R-GA) and Paul (R-KY)). The highly controversial pick will succeed Ambassador Daniel B. Shapiro who was appointed to the U.S. Embassy in Tel Aviv by President Obama, and served as chief of mission in Israel from 2011 to 2017.

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Trump’s Diplomat: Rex Tillerson in His Own Words, Now With Gifs

Posted: 4:45 pm ET

 

Tillerson: “In the context of the budget, the fiscal year 2017 was a record high for the State Department.” (Note that the FY2013 budget was $1.6B more than the FY2017 budget. See “The Secretary” Writes FY18 Budget Love Letter to Foggy Bottom, But What’s This About Post Closures?).

 

Tillerson: “Looking at ongoing conflicts, if we accept that we’re just going to continue to never solve any of these conflicts, then the budget should stay at the current level.” (Note that proposed FY18 budget is nowhere near the current level.   See WH/OMB Releases FY2018 Budget Blueprint – @StateDept/@USAID Hit With 28% Funding Cuts Mar 16, 2017).

Via reactiongif.com

 

Tillerson’s top policy aide: “Tillerson and Mattis get along like gin and vermouth.” 

 

“Tillerson said he talks to Trump daily and has an open invitation to visit him at the White House whenever he chooses, he said they haven’t yet talked about what a dramatically different State Department will look like or how he will staff it. His eyes darted down to his desk when he said, “We haven’t gotten that far yet,” as though he realized he had been caught.”

 

Tillerson said he hopes eventually, “The people at the State Department will find their jobs much more rewarding.” And despite some of the commentary being bandied about, he thinks there’s been a lot of energy since the day he got started there. (See The Atlantic’s The State of Trump’s State Department).

via reactiongifs.com

Tillerson on NATO: “He [Trump] embarrassed them into increasing their spending.”

via reactiongifs.com

Tillerson: “We’ve got a lot going on inside the State Department, and we’re not talking about it until we’re ready, and that’s driving a lot of people nuts,” he said. He was so cagey when Russia came up, for example, that his answer wasn’t even worthy of inclusion.

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Tillerson on  the Secretary of State job: “I didn’t want this job. I didn’t seek this job.” He paused to let that sink in. A beat or two passed before an aide piped up to ask him why he said yes. My wife told me I’m supposed to do this.”

 

Tillerson: “I serve at the pleasure of the president.” It doesn’t seem like he regrets accepting the job. “My wife convinced me. She was right. I’m supposed to do this.”

 

Read the full interview below and the transcript previously posted by the reporter, Erin McPike who was the sole journalist invited to accompany Secretary Tillerson on his trip to Asia:

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USA Offers Up to $5 Million #Reward For Information on Joel Shrum Murder in #Yemen

Posted: 2:47 am ET

 

On March 15, in partnership with the U.S. Department of State’s Rewards for Justice program, the FBI announced a reward of up to $5 million for information on the murder of U.S. citizen Joel Wesley Shrum in Ta’izz, Yemen in 2012. The RFJ announcement notes that at the time of his death, Shrum worked at the International Training and Development Center as an administrator and English teacher. He was living in Yemen with his wife and two young children. Below is the FBI announcement:

The FBI Washington Field Office, in partnership with the U.S. Department of State’s Rewards for Justice program, announced today a reward of up to $5 million for information leading to the arrest or conviction in any country of any individual who committed, conspired to commit, or aided or abetted in the commission of, the murder of U.S. citizen Joel Wesley Shrum.

On March 18, 2012, Joel Wesley Shrum, 29, was driving to his place of employment in Ta’izz, Yemen when two gunmen armed with AK-47s approached Shrum’s vehicle on a motorcycle and fired on the vehicle. Shrum was pronounced dead on the scene. Al Qaeda in the Arabian Peninsula (AQAP) claimed responsibility for the murder. The U.S. State Department designated AQAP as a Foreign Terrorist Organization in 2010. At the time of his death, Shrum worked at the International Training and Development Center as an administrator and English teacher. He was living in Yemen with his wife and two young children.

Individuals with information concerning the shooting of Joel Shrum are asked to contact the FBI or the nearest American Embassy or Consulate or submit a tip on the FBI’s website by visiting tips.fbi.gov. Tips can remain confidential. Additional information regarding Joel Shrum, including a seeking information poster with his picture, is available on the FBI’s website at http://www.fbi.gov/wanted/seeking-info or on the U.S. Department of State’s Rewards for Justice program website at www.rewardsforjustice.net.

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Former Top Diplomats Make a Case For Sensible Funding of the State Department Budget

Posted: 2:21 am ET

 

In light of the Trump Administration’s proposed FY18 budget, the American Academy of Diplomacy and the Council of American Ambassadors wrote a joint letter to Senate Majority Leader Mitch McConnell (R-Kentucky) to make a case for sensible State Department funding in the federal budget.  The letter was signed by Ambassador Thomas R. Pickering, AAD Chairman; Ambassador Ronald E. Neumann, AAD President; Ambassador Bruce S. Gelb, CAA Chairman; and Ambassador William J. vanden Heuvel CAA Chairman Emeritus. We understand that identical letters were also sent to Senators Cardin, Corker, Graham, Leahy and Schumer in the Senate, and Representatives Engel, Lowey, McCarthy, Pelosi, Rogers, and Royce in the House.

Sept 14, 2012: Thousands of protestors attacked the U.S. Embassy in Khartoum, Sudan, setting fire to the Consular Section entrance, and causing extensive damage. (Source: U.S. State Department/DS)

Below is the text of the letter AAD/CAA sent to the Hill:

On behalf of the American Academy of Diplomacy (AAD) and the Council of American Ambassadors (CAA), we believe the proposed magnitude of the cuts to the State Department budget pose serious risks to American security. After the military defeat of the Islamic State, intensive diplomatic efforts in Iraq and Syria will be essential to stabilization, without which the radical movements that we now contest will reappear. Afghanistan requires the same attention.

As a general principle, diplomacy is far less costly than war to achieve our national purposes. Diplomacy is most often the first line of America’s defense. When the Islamic State suddenly appeared in Mali, it was our Embassy that was able to recommend action based on knowing the difference between terrorists and local political actors who needed support. When Ebola in West Africa threatened a worldwide pandemic, it was our Foreign Service that remained in place to establish the bases for and support the multi-agency health efforts deployed to stop the disease outbreak. It is to our embassies that American citizens turn for security and evacuation abroad.

Our embassies’ commercial work supports US companies and citizen entrepreneurs in selling abroad. This creates thousands of American jobs. Every dollar spent on this work returns hundreds in sales. Peacekeeping and political missions are mandated by the Security Council where our veto power can ensure when, where, how many, and what kind of peacekeepers used in a mission support US interests. Peacekeeping forces are deployed in fragile, sometimes prolonged, circumstances, where the US would not want to use US forces. UN organized troops cost the US taxpayer only about one-eighth the cost of sending US troops. Our contributions to refugees and development are critical to avoid humanitarian crises from spiraling into conflicts that would draw in the United States and promote violent extremism. Budget cuts of the amounts contemplated endanger basic US security interests.

US public diplomacy fights radicalism. Educational exchanges over the years have enabled hundreds of thousands of foreign students truly to understand Americans and American culture. This is far more effective in countering radical propaganda than social media. The American Immigration Law Foundation estimates that 46 current and 165 former heads of government are US graduates.

These few examples should show why so many American military leaders are deeply opposed to the current budget proposals. They recognize that when diplomacy is not permitted to do its job the chances of Americans dying in war increase. When the number of employees in military commissaries or military bands exceeds the number of US diplomats, the current budget proposal is indeed not a cost-effective way to protect America and its interests.

The Academy, representing the most experienced and distinguished former American diplomats, both career and non-career, and the Council have never opposed all cuts to the State Department budget. The Academy’s detailed study American Diplomacy at Risk (2015) proposed many reductions. We believe streamlining is possible, and we can make proposals to that end. However, the current budget proposals will damage American national security and should be rejected.

The original letter is here: Letter re Proposed DOS Budget Cuts – Senator McConnell.

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New Zealand Asks US Embassy Wellington Staffer to Leave

Posted: 03:14 am ET

 

New Zealand news media reported over the weekend that a U.S. diplomat was involved in an incident in Lower Hutt, one of the four cities of the Wellington metro area.  It is not know what happened during the incident, only that the diplomat was reportedly “left with a broken nose and a black eye.” According to NZHerald,  the Ministry of Foreign Affairs and Trade (MFAT) asked the US Embassy on Monday to waive the staffer’s diplomatic immunity so police could investigate the incident.  “The United States Government has today declined to waive the diplomat’s immunity,” the spokesman said. “Therefore, MFAT has asked the United States to withdraw the staff member in question from New Zealand.”  Some news reports have identified the diplomat but we have been unable to confirm the name or the status of the individual. US Embassy Wellington has not responded to our inquiry to-date.

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Tillerson of #NotBigMediaAccess Planet: NK ‘Imminent’ Threat, Fatigue News, Chinese Praise

Posted: 2:31 am ET

 

Secretary Tillerson traveled to Tokyo, Seoul, and Beijing from March 15-18 —  without his full traveling press, but with one pre-selected journalist (see Lonesome Rex to Make Inaugural Trip to Asia Without His Traveling Press?). It sounds like this won’t be the last time he’s going to try to ditch his traveling press. Secretary Tillerson said that “we’re saving a lot of money by using this aircraft.”  Since cost savings has now been repeatedly cited as an excuse, let’s see the cost saved from this trip, please.

The controversy about press access to the 69th secretary of state continues.  Secretary Tillerson gave an interview to his sole traveling press, and once more cited saving money as one of the reasons for not taking a full traveling press:

Primarily it’s driven — believe it or not, you won’t believe it — we’re trying to save money. I mean, quite frankly, we’re saving a lot of money by using this aircraft, which also flies faster, allows me to be more efficient, and we’re going to destinations that, by and large, the media outlets have significant presence already, so we’re not hiding from any coverage of what we’re doing. The fact that the press corps is not traveling on the plane with me, I understand that there are two aspects of that. One, there’s a convenience aspect. I get it. The other is, I guess, what I’m told is that there’s this long tradition that the Secretary spends time on the plane with the press. I don’t know that I’ll do a lot of that. I’m just not … that’s not the way I tend to work. That’s not the way I tend to spend my time. I spend my time working on this airplane. The entire time we’re in the air, I’m working. Because there is a lot of work to do in the early stages. Maybe things will change and evolve in the future. But I hope people don’t misunderstand … there’s nothing else behind it than those simple objectives.

Apparently, Secretary Tillerson is not a “big media access person” and personally doesn’t need it. Holymolyguacamole! Can somebody in Foggy Bottom, please explain to him that this is not about what he needs.

“I’m not a big media press access person. I personally don’t need it. I understand it’s important to get the message of what we’re doing out, but I also think there’s only a purpose in getting the message out when there’s something to be done. And so we have a lot of work to do, and when we’re ready to talk about what we’re trying to do, I will be available to talk to people. But doing daily availability, I don’t have this appetite or hunger to be that, have a lot of things, have a lot of quotes in the paper or be more visible with the media. I view that the relationship that I want to have with the media, is the media is very important to help me communicate not just to the American people, but to others in the world that are listening. And when I have something important and useful to say, I know where everybody is and I know how to go out there and say it. But if I don’t because we’re still formulating and we’re still deciding what we’re going to do, there is not going to be a lot to say. And I know that you’ve asked me a lot of questions here that I didn’t answer, and I’m not answering them because we have some very, very complex strategic issues to make our way through with important countries around the world, and we’re not going to get through them by just messaging through the media. We get through them in face-to-face meetings behind closed doors. We can be very frank, open, and honest with one another and then we’ll go out and we’ll have something to share about that, but the truth of the matter is, all of the tactics and all of the things were going to do you will know them after they’ve happened.”

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EEOC Finds @StateDept Liable Under the Rehabilitation Act in US Embassy Kabul Medical Clearance Denial

Posted: 12:21 am ET

 

This is a case where an FSO previously diagnosed with rheumatoid arthritis was granted a Class 2 medical clearance for an assignment at the US Embassy in Kabul, Afghanistan.  While at post, the FSO developed pericarditis and was hospitalized in Kabul in 2013; she was subsequently medevaced to Texas. The FSO was later told by State/MED that she retained her Class 2 Medical Clearance, but it was not Kabul-approved.  In August 2013, the FSO filed an EEO complaint alleging that the State Department discriminated against her on the basis of disability. The State Department’s decision  notes that in denying her clearance, its medical officers failed to conduct a sufficient individualized assessment of the risk posed by Complainant’s medical condition and its impact on her ability to return safely to Kabul.  It held “that there was no evidence that the medical officers and Medical Review Panel took into account the duration of the risk, the nature and severity of the potential harm, and the likelihood that the harm will occur or the imminence of the potential harm, as required by the law.”  It also concluded that MED“improperly denied Complainant a Class 2 medical clearance (Kabul-approved).”  The FSO on appeal asserted that she was not provided with full relief, including reasonable attorney’s fees and costs. In response to that appeal, the State Department noted that its final decision was, get this — “erroneously issued.”

Summary of Case via EEOC:

In September 2011, Complainant was assigned to work as an Administrative Officer at the Agency’s Embassy in Kabul, Afghanistan.  Complainant had been diagnosed with ongoing rheumatoid arthritis since 1999. In conjunction with her assignment to Kabul, Complainant was reviewed by the State Department’s Office of Medical Services (State/MED) for a medical clearance.  Complainant was granted a Class 2 (Kabul-approved) medical clearance 2 and she started her duties in Kabul.  While on leave from Kabul in the United States in June 2012, Complainant saw a doctor and was prescribed a new medication for her arthritis called Leflunomide. At the time, Complainant did not report that she was taking this new medication to Agency medical officials.

In April 2013, Complainant developed pericarditis which led to her hospitalization in Kabul.  At that time, her physicians at the hospital advised her to stop taking Leflunomide and she did so.  Upon her release from the hospital, Embassy medical officials made the decision to send Complainant back to the United States for an evaluation by her own physicians. On May 7, 2013, Complainant departed Kabul for El Paso, Texas.

Upon her return to El Paso, Complainant was examined by her own physician (“Complainant’s Physician”) for clearance to return to Kabul.  She provided documentation to the Agency’s Office of Medical Services indicating that her physician had no concerns with her return to Kabul. On May 31, 2013, Complainant was initially informed by the Agency’s physician (“Agency Physician”) that her medical clearance for Kabul would be renewed.

However, on June 3, 2013, the Agency Physician informed her that she retained her Class 2 Medical Clearance, but was not Kabul-approved.  Complainant was told that the reason for the denial of her clearance to return to Kabul was her use of Leflunomide, a drug banned by the Department of Defense for use by personnel assigned to Afghanistan.3  As Complainant had stopped using the medication since her April 2013 hospitalization, she appealed the denial of her medical clearance for Kabul.  Her appeal was denied by the Agency’s Medical Review Panel on the grounds that her cessation of Leflunomide was too recent. The Panel indicated that Complainant needed to show a period of at least 12 month of “clinical stability” before she could return to Kabul.  The Panel defined clinical stability as “the absence of systemic clinical manifestations of pericarditis and rheumatogic problems.”  There was some speculation that, because Leflunomide reduces resistance to infection, Complainant’s pericarditis may have resulted from its use.  Complainant then requested an Administrative Waiver to allow her to return to her position in Kabul.  That waiver was also denied on June 19, 2013.  Since May 2013, Complainant has been working from the Agency’s El Paso, Texas, Intelligence Center.

On August 22, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (rheumatoid arthritis) when her “Return to Post Authorization” was not reinstated and she was prevented from returning to work at the U.S. Embassy in Kabul.

At the conclusion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ).  However, on March 10, 2014, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its decision, the Agency conceded the Complainant was an individual with a disability as defined by the Rehabilitation Act.  The Agency further determined that Complainant was an otherwise qualified individual with a disability, as she had been performing in the position in question in Kabul for the preceding two years, and had the requisite knowledge, experience, skill, and education to perform the position.

The Agency’s decision then noted that Complainant was denied a Class 2 Medical Clearance (Kabul-approved) because of the perceived risk of harm she posed to herself due to her recent use of the drug Leflunomide. As a result of this determination, Complainant was prevented from returning to her previously-approved assignment in Kabul.  The Agency’s decision went on to conclude that, in denying her clearance, its medical officers failed to conduct a sufficient individualized assessment of the risk posed by Complainant’s medical condition and its impact on her ability to return safely to Kabul.  Specifically, Agency held that there was no evidence that the medical officers and Medical Review Panel took into account the duration of the risk, the nature and severity of the potential harm, and the likelihood that the harm will occur or the imminence of the potential harm, as required by the law.  The Agency decision noted that medical opinions that supported Complainant ability to safely return to Kabul were improperly given little weight during the medical clearance determination.  Accordingly, the Agency’s final decision concluded that it improperly denied Complainant a Class 2 medical clearance (Kabul-approved).

Based on its finding that Agency medical staff had failed to provide Complainant with an individualized assessment, the Agency ordered the Office of Medical Services to go forward and actually conduct the required individualized assessment of Complainant’s medical condition and her ability to return to the Administrative Officer position at the Agency’s Embassy in Kabul without posing a significant risk of substantial harm to herself or others.

This appeal followed.  On appeal, Complainant did not challenge the findings by the Agency, but asserted that she was not provided with full relief, including reasonable attorney’s fees and costs.

In response to the appeal, the Agency noted that its final decision was erroneously issued in light of Complainant’s previous request for a hearing.  As such, the Agency argued that the final decision should be voided.  In response, Complainant argued that the final decision should not be considered void and the matter should not be remanded for a hearing.

EEOC ANALYSIS AND FINDINGS: Violation of Rehabilitation Act

As an initial matter, we find that Complainant’s statement on appeal constitutes a withdrawal of her earlier hearing request.  As such, we deny the Agency’s request to void its final decision.

In that decision, the Agency found that its medical staff failed to conduct a proper individualized assessment as required by the Rehabilitation Act when Complainant was prevented from returning to work at the U.S. Embassy in Kabul.  Complainant does not challenge the Agency’s findings in its final decision.  As such, we affirm the Agency’s specific findings.  However, the Agency did not expressly state that its actions constituted discrimination in violation of the Rehabilitation Act.

As evidenced by the Agency’s final decision, there is no dispute that Complainant is an individual with a disability who was otherwise qualified for the position in she had previously held in Kabul. In other words, she met the skill, experience, education and other job requirements to perform the duties of the position in Kabul, apart from the Agency’s decision to retract her medical clearance for work in Kabul.

The Agency noted in its findings in its own decision that Complainant’s Physician provided medical documentation that Complainant was no longer taking Leflunomide, the drug of concern, had not had flare-ups of her medical condition, and had embarked on a healthier lifestyle. However, the Agency conceded that Complainant’s supporting medical documentation was improperly “given little if any weight.”  The Agency also admitted in it decision that the denial of the Class 2 Medical Clearance was due to the “perceived risk of harm she posed to herself or others” and not on an actual risk.  Based on the record including the medical evidence provided by Complainant’s Physician, we find that Complainant has shown that she was qualified for the position in question in Kabul and was only prevented from doing so based on the Agency’s perception that she posed a safety risk.  This moves the burden of proof squarely to the Agency to prove that there is a significant risk of substantial harm. Massingill v. Dep’t. of Veterans Affairs, EEOC Appeal No. 01964890 (July 14, 2000).  See also, Branham v. Snow, 392 F.3d 896 (7th Cir. 2005) (“employer’s burden to show that an employee posed a direct threat to workplace safety that could not be eliminated by reasonable accommodation”); Hutton v. Elf Atochem N. America, 273 F.3d 884, 893 (9th Cir. 2001) (direct threat affirmative defense).

Here, as already noted, the Agency’s own decision concluded that Complainant was denied a Class 2 Medical Clearance because of perceived risk of harm she posed to herself or others.  Our regulations permit the Agency to deny job assignments on the basis of disability where such an assignment would pose a direct threat. See 29 C.F.R. § 1630.2(r). A “direct threat” is defined as a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation. Interpretive Guidance of Title 1 of the Americans with Disabilities Act, Appendix to 29 C.F.R. Part 1630, § 1630.2(r); Echazabal v. Chevron U.S.A., Inc. 536 U.S. 73 (2002); 29 C.F.R. § 1630.2(r).

The issue in finding direct threat is “not…whether a risk exists, but whether it is significant.” Bragdon v. Abbott, 524 U.S. at 649. A direct threat must be based on an individualized assessment of the individual that takes into account: (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm. Interpretive Guidance on Title I of the Americans With Disabilities Act, Appendix to 29 C.F.R. § 1630.2(r). The individual assessment must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. Id. A determination of significant risk cannot be based merely on an employer’s subjective evaluation, or, except in cases of a most apparent nature, merely on medical reports.

The Agency held in its final decision that it “failed to conduct a sufficiently individualized assessment of the risk posed by Complainant’s medical condition, and its impact on her ability to return safely to Kabul.  There is no evidence that the following factors were taken into account: 1) the duration of the risk; 2) the nature and severity of the potential harm; 3) the likelihood that the potential harm will occur; and 4) the imminence of the potential harm.”  Based on the record and the Agency’s own findings in its decision, we determine that the Agency has not met its burden of establishing that Complainant’s return to Kabul would have posed a direct threat.  Accordingly, the Agency’s defense to denying Complainant the Class 2 Medical Clearance was not established, and the Agency is liable under the Rehabilitation Act.

As a result of this violation of the Rehabilitation Act, Complainant is entitled to make-whole relief, which the Agency did not provide her in its final decision.  First, the Agency should offer Complainant the assignment in Kabul if she chooses to return. See Nathan v. Department of Justice, EEOC Appeal No. 0720070014 (July 19, 2013) (awarding the complainant the position for which he applied following a determination that the agency violated the Rehabilitation Act when it medically disqualified him without an individualized assessment). In addition, Complainant correctly argues that she should be awarded reasonable attorney’s fees and legal costs for processing her EEO complaint, as well as the opportunity to support her claim for compensatory damages. Also, we find that the Agency provide training to relevant management highlighting the Agency’s obligations with respect to the Rehabilitation Act.

The EEOC concludes the case with a modification of the State Department’s  final decision and remanded the matter to the agency with the following order signed by Carlton M. Hadden on October 25, 2016.  The EEOC case file notes that compliance with the Commission’s corrective action is mandatory.

The Agency is ordered to take the following remedial action:

1. Within 60 calendar days from the date this decision is issued, the Agency shall offer Complainant an assignment in Kabul substantially similar to the one she lost. If Complainant rejects the offer of the assignment, the Agency shall use the date of rejection for purposes of back pay calculations as noted below.  If Complainant accepts the assignment, the Agency shall use the date Complainant assumes the assignment for purposes of back pay.

2. The issue of compensatory damages is REMANDED to the Agency. On remand, the Agency shall conduct a supplemental investigation on compensatory damages, including providing the Complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under § 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov.) The Agency shall complete the investigation and issue a final decision appealable to the EEOC determining the appropriate amount of damages within 150 calendar days after this decision is issued.

3. The Agency shall determine if Complainant is entitled to an award of back pay as a result of the denial of her return to her assignment in Kabul.  The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision is issued.  The Complainant shall cooperate in the Agency’s efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency.  We note that the Agency should consider if there would have been a difference in locality pay and benefits to Complainant including but not limited to promotions or other incentives for an assignment in Kabul, Afghanistan.

If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due.  The Complainant may petition for enforcement or clarification of the amount in dispute.  The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled “Implementation of the Commission’s Decision.”

4. Within sixty (60) days from the date this decision is issued, the Agency is ordered to provide at least eight (8) hours of training to the responsible officials covering their responsibilities under the Rehabilitation Act. The training shall cover the Agency’s obligations regarding the provision of reasonable accommodation, as well as its obligation to conduct an individualized assessment pursuant to the direct threat defense.

5. If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney’s fees and costs incurred in the processing of the complaint, including this appeal.  29 C.F.R. § 1614.501(e).  The award of attorney’s fees shall be paid by the Agency.  The attorney shall submit a verified statement of fees to the Agency — not to the Equal Employment Opportunity Commission, Office of Federal Operations — within sixty (60) calendar days of this decision is issued.  The Agency shall then process the claim for attorney’s fees in accordance with 29 C.F.R. § 1614.501.

The State Department was also ordered to post this order within 30 days of the date of the decision for a duration of 60 consecutive days.

The Agency is ordered to post at its Washington D.C. facility copies of the attached notice.  Copies of the notice, after being signed by the Agency’s duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision is issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted.  The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material.  The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled “Implementation of the Commission’s Decision,” within 10 calendar days of the expiration of the posting period.

 

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“The Secretary” Writes FY18 Budget Love Letter to Foggy Bottom, But What’s This About Post Closures?

Posted: 2:21 pm ET

 

Earlier, we posted about Trump’s “skinny budget” which guts the State Department and USAID funding by 28%. (see WH/OMB Releases FY2018 Budget Blueprint – @StateDept/@USAID Hit With 28% Funding Cuts).  We understand that the actual cut is closer to 36% once the Overseas Contingency Operation (OCO) is factored in. In early March, media reports indicate that the proposed cuts for the international affairs budget would be 37% (see In Disaster News, Trump Budget Seeks 37% Funding Cut For @StateDept and @USAID). If there was push back from the Tillerson State Department in the weeks before OMB released the “America First” budget blueprint, T-Rex’s diplomatic nudge appears to result in a 36% funding reduction instead of the first reported 37% funding cut.

Yesterday morning, as folks were waking up to the OMB release, a letter sent from Secretary Tillerson’s office arrived in the inboxes of State Department employees:

THE SECRETARY OF STATE
WASHINGTON

Today the Office of Management and Budget released a preview of the President’s budget request for 2018.  It is an unmistakable restatement of the needs the country faces and the priorities we must establish.  The State Department’s budget request addresses the challenges to American leadership abroad and the importance of defending American interests and the American people.  It acknowledges that U.S. engagement must be more efficient, that our aid be more effective, and that advocating the national interests of our country always be our primary mission. Additionally, the budget is an acknowledgment that development needs are a global challenge to be met not just by contributions from the United States, but through greater partnership with and contributions from our allies and others.

Over the coming weeks, we will work together to draw a new budget blueprint that will allow us to shape a Department ready to meet the challenges that we will face in the coming decades.  We will do this by reviewing and selecting our priorities, using the available resources, and putting our people in a position to succeed.

We have a genuine opportunity to set a new course.  Together, we are going to advance America’s national security and its economic security.  I am motivated to tackle this challenge and am eager to realize what we will achieve together.

We understand that this letter did not get very good reviews in Foggy Bottom. We really do think that Secretary Tillerson needs to have a town hall meeting with his employees as soon as he gets back from his travel. Before perceptions become realities.  We already know the why, now folks need to understand the where and how.  And it doesn’t help to just tell one bureau it’s zeroed out in funds, and then come back another day and say how about a 50% cut? As if the 7th floor taskmasters got off the wrong side of bed one morning and on the right side the next day.

During his stop in Japan, Secretary Tillerson finally took a few questions during press availability with Japanese Foreign Minister Fumio Kishida. The State Department budget was one of the questions asked during the presser. Below is a transcript from state.gov:

QUESTION: Secretary Tillerson, today the White House is revealing its blueprint for the federal budget that will include deep cuts to your department. Do you support efforts to make such drastic cuts to diplomacy and development funding at this time? And are you confident that you will be able to continue to represent U.S. interests with such reduced room to maneuver?

MODERATOR: (Via interpreter) Secretary Tillerson, please.

SECRETARY TILLERSON: Well, I think in terms of the proposed budget that has been put forth by President Trump, it’s important from the State Department perspective, I think, a little context, to recognize that the State Department is coming off of an historically high level of budgetary resources in the 2017 budget, and this is reflective of a number of decisions that have been taken over the past few years, in part driven by the level of conflicts that the U.S. has been engaged in around the world as well as disaster assistance that’s been needed.

I think clearly, the level of spending that the State Department has been undertaking in the past – and particularly in this past year – is simply not sustainable. So on a go-forward basis, what the President is asking the State Department to do is, I think, reflective of a couple of expectations. One is that as time goes by, there will be fewer military conflicts that the U.S. will be directly engaged in; and second, that as we become more effective in our aid programs, that we will also be attracting resources from other countries, allies, and other sources as well to contribute in our development aid and our disaster assistance.

I think as I look at our ability to meet the mission of the State Department, I am quite confident. The men and women in the State Department are there for one reason. They’re not there for the glory. They’re not there for the money, obviously. They’re there because they’re extraordinarily dedicated to the mission and dedicated to ensuring America’s national security, economic security. We are going to be undertaking a very comprehensive examination of how programs are executed, a very comprehensive examination of how we are structured, and I’m confident that with the input of the men and women of the State Department, we are going to construct a way forward that allows us to be much more effective, much more efficient, and be able to do a lot with fewer dollars.

So it’s challenging. We understand the challenge. I take the challenge that the President has given us on willingly and with great expectation that with everyone in the State Department’s assistance, we’re going to deliver a much better result for the American people in the future.

Secretary Tillerson talking about “historically high level of budgetary resources in the 2017 budget” for the State Department made us look up the budget request for the last five fiscal years. The largest funding request was five years ago for FY2013 at $51.6 billion.

FY2017:  $50.1 billion.  The State Department $50.1 billion request includes a base of $35.2 billion and $14.9 billion for Overseas Contingency Operations (OCO) request. (SAO: For FY16 and ’17, we will be using OCO to support countries and programs that require assistance to prevent, address, or recover from human-caused crises and natural disasters, as well as to secure State and USAID’s operations from hostile acts and potential terrorism. OCO will be providing about 50 to 100 percent of the funding for some countries and programs, including a range of ongoing assistance operations and treaty commitments).

FY2016:  $50.3 billion. The State and USAID budget request totals $50.3 billion.  The base budget request is $43.2 billion plus $7 billion in Overseas Contingency Operations funds  — to respond to immediate and extraordinary national security requirements. OCO funds supports critical programs and operations in Afghanistan, Pakistan, and Iraq, as well as exceptional costs related to efforts to fight ISIL, respond to the conflict in Syria, and support Ukraine.

FY2015: $46.2 billion. The overall State and USAID Budget Request is $46.2 billion, plus $5.9 billion request for Overseas Contingency Operations (OCO) which funds key programs in — Iraq and Pakistan helps sustain hard-fought gains in Afghanistan through the 2014 transition.

FY2014: $47.8 billion. The overall request is $47.8 billion, includes $44 billion as part of base budget or enduring budget, and $3.8 billion for Overseas Contingency Operations, (OCO)  which — largely covers the extraordinary costs of Iraq, Afghanistan, and Pakistan.

FY2013: $51.6 billion. The Department of State/USAID budget totals $51.6 billion which includes $43.4 billion for the core budget,  which funds the long-term national security mission of the Department and USAID and $8.2 billion for Overseas Contingency Operations (OCO) to support the extraordinary and temporary costs of civilian-led programs and missions in Iraq, Afghanistan, and Pakistan.

The second thing we’d like to note is Secretary Tillerson’s assertion that “there will be fewer military conflicts that the U.S. will be directly engaged in.” If that’s really the expectation, why is Trump’s budget giving DOD $54billion more in funds as it guts the State Department and USAID? As we write this, we are mindful that the United States is still in Afghanistan and Iraq, in Syria, in Yemen, and a host of other places that are not front page news.

By the way, what’s this we’re hearing about the transition folks looking to close some US embassies in Africa?  Apparently there are now people at State who think we should close our embassy in country X for instance because — hey, AFRICOM is already there so why do we need an embassy?  Argh!  These folks realize that 3/4 of AFRICOM actually works at the command’s headquarters in Stuttgart, Germany, right?  AFRICOM’s HQ is not the point, of course, but if there are transition folks thinking about AFRICOM (just one of the six geographic combatant commands) as an excuse for post closures overseas, where else might they be thinking of playing their game of disengagement?

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Operation Island Express II Nets Two Document Suppliers in Puerto Rican Identity Trafficking Scheme

Posted: 1:14 am ET

 

On March 14, 2017, USDOJ announced that two identity document suppliers were sentenced to prison for their role in trafficking the identities of Puerto Rican U.S. citizens and corresponding identity documents:

Francisco Matos-Beltre, 43, a Dominican national who became a U.S. citizen in 2013, formerly of Philadelphia, was sentenced to serve 51 months in prison and three years’ supervised release. Isaias Beltre-Matos, 46, a Dominican national and legal permanent resident formerly of Providence, Rhode Island, was sentenced to serve 51 months in prison and three years’ supervised release. Both defendants were sentenced before U.S. District Judge Juan M. Perez-Gimenez of the District of Puerto Rico. Beltre-Matos pleaded guilty on Aug. 10, 2016, to conspiracy to commit identification fraud and commit human smuggling for financial gain. Matos-Beltre pleaded guilty on Sept. 14, 2016, to conspiracy to commit identification fraud and commit human smuggling for financial gain.

According to admissions made in connection with the pleas, identity document runners located in the Savarona area of Caguas, Puerto Rico, obtained Puerto Rican identities and corresponding identity documents. Other conspirators, identified as identity document suppliers and brokers, located in various cities throughout the United States allegedly solicited customers for the sale of social security cards and corresponding Puerto Rico birth certificates for prices ranging from $400 to $1,200 per set. The defendants also admitted that the conspirators used the U.S. mail to complete their illicit transactions.

According to the pleas, Beltre-Matos admitted that he sold identity documents to customers, who generally obtained the identity documents to assume the identity of Puerto Rican U.S. citizens and to obtain additional identification documents, such as legitimate state driver’s licenses. Some customers obtained the documents to commit financial fraud and attempted to obtain a U.S. passport, according to the plea agreement. Matos-Beltre also admitted to being a document supplier and that he bought and transferred identity documents belonging to real people to document brokers. Matos-Beltre admitted that he knew his customers would fraudulently use the documents that he provided.

Diplomatic Security special agents record evidence seized during a training exercise to execute a search warrant in suburban Washington, D.C., July 21, 2009. U.S. Department of State Photo.

USDOJ also announced the contact info for potential victims:

Potential victims and the public may obtain information about the case at: www.justice.gov/criminal/vns/caseup/beltrerj.html. Anyone who believes their identity may have been compromised in relation to this investigation may contact the ICE toll-free hotline at 1-866-DHS-2ICE (1-866-347-2423) and its online tip form at www.ice.gov/tipline. Anyone who may have information about particular crimes in this case should also report it to the ICE tip line or website.

Anyone who believes that they have been a victim of identity theft, or wants information about preventing identity theft, may obtain helpful information and complaint forms on various government websites including the Federal Trade Commission ID Theft Website, www.ftc.gov/idtheft. Additional resources regarding identity theft can be found at www.ojp.usdoj.gov/ovc/pubs/ID_theft/idtheft.htmlwww.ssa.gov/pubs/10064.htmlwww.fbi.gov/about-us/investigate/cyber/identity_theft; and www.irs.gov/privacy/article/0,,id=186436,00.html.

USDOJ credits the Chicago offices of ICE-HSI, USPIS, DSS and IRS-CI for leading the investigation, dubbed Operation Island Express II.  Also cited are HSI San Juan and the DSS Resident Office in Puerto Rico, the HSI Assistant Attaché office in the Dominican Republic and International Organized Crime Intelligence and Operations Center (IOC-2).  Trial Attorneys Marianne Shelvey of the Criminal Division’s Organized Crime and Gang Section and Frank Rangoussis of the Criminal Division’s Human Rights and Special Prosecutions Section prosecuted the case, and the U.S. Attorney’s Office of the District of Puerto Rico was cited for providing assistance.

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