Indictments For Alleged Large-Scale Visa Fraud Employment Scheme

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On April 20, USDOJ announced the indictment of two businesses and nine of their officers and managers for an alleged large-scale visa fraud employment scheme. Excerpt from the announcement:

An indictment returned by a federal grand jury in the Southern District of Georgia has been unsealed charging two businesses and nine of their officers and managers located across the country for their roles in an alleged conspiracy to defraud the U.S. government and commit various fraud and criminal immigration offenses for profit.

According to court documents, Regal Hospitality Solutions, LLC; Educational World, Inc.; Karen Makaryan, 42, Sargis Makaryan, 42, and Samvel Nikoghosyan, 40, of Destrehan, La.; Artur Grigoryan, 38, of Biloxi, Miss.; Armen Ayrapetyan, 37, of Duluth, Ga.; Jason Hill, 28, of Virginia Beach, Va.; Fremie Balbastro, 49, of Myrtle Beach, S.C.; and Larisa Khariton, 73, and Jon Clark, 71, of North Port, Fla., were charged in a 36-count indictment returned by a federal grand jury on April 8. Each defendant was charged with one count of conspiracy to defraud and commit offenses against the United States, including encouraging and inducing an alien to reside in the United States, alien harboring, transporting aliens, and visa fraud.  Each defendant also was charged with substantive counts of encouraging and inducing an alien to reside in the United States, alien harboring, and transportation of aliens. In addition, Regal Hospitality Solutions, LLC; Karen Makaryan; Sargis Makaryan; Samvel Nikoghosyan; Artur Grigoryan; Armen Ayrapetyan; Fremie Balbastro; and Jason Hill were also charged with one count of conspiracy to commit wire fraud and 10 counts of wire fraud.

“The defendants in this case allegedly engaged in an expansive conspiracy to enrich themselves by exploiting both the immigration system and noncitizen workers,” said Acting Assistant Attorney General Nicholas L. McQuaid of the Justice Department’s Criminal Division. “Systemic fraud and abuse of U.S. visa programs and processes designed to protect American workers and businesses will not be tolerated, and offenders will be held accountable.”
[…]
“The Department’s Bureau of Educational and Cultural Affairs aims to increase mutual understanding between the people of the United States and the people of other countries by means of educational and cultural exchange,” said Acting Assistant Inspector General for Investigations Robert Smolich of the U.S. Department of State, Office of Inspector General, Office of Investigations. “When bad actors corrupt these programs for personal gain, it not only diminishes an important tool of diplomacy, it harms the thousands of individuals who participate in these programs hoping to gain skills and experience to make a better life. Today we took a step forward in restoring integrity back to those programs.”

“These defendants’ alleged scheme to game the immigration system and defraud the government has backfired and they will now be held accountable,” said Special Agent in Charge Katrina W. Berger of Homeland Security Investigations (HSI), Georgia and Alabama. “Schemes like this not only exploit the noncitizen workers involved, they also damage the other legitimate businesses in the community. Protecting the integrity of the visa program and immigration system is vital to the security of our nation.”
[…]
Individual defendants have made their initial court appearances and the arraignment of all defendants will be scheduled before U.S. Magistrate Judge Benjamin W. Cheesbro of the U.S. District Court for the Southern District of Georgia. If convicted, the individual defendants face maximum potential statutory penalties of five years in prison on the count of conspiracy to defraud and commit offenses against the United States; 10 years in prison on the counts of encouraging and inducing an alien to reside in the United States, alien harboring, and transportation of aliens; and 20 years in prison on the counts of wire fraud conspiracy and substantive wire fraud. The organizational defendants are subject to a maximum fine on each count of conviction of $500,000 or twice the gross amount of gain or loss resulting from the offense. A federal district court judge will determine any sentence after considering the U.S. Sentencing Guidelines and other statutory factors.

The U.S. Department of State Office of Inspector General is investigating the case with assistance provided by HSI and U.S. Citizenship and Immigration Services.

Trial Attorneys Frank Rangoussis and John-Alex Romano of the Criminal Division’s Human Rights and Special Prosecutions Section and Assistant U.S. Attorney Alejandro V. Pascual IV of the Southern District of Georgia are prosecuting the case.

An indictment is merely an allegation and all defendants are presumed innocent until proven guilty beyond a reasonable doubt in a court of law.

Read the full announcement here.

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Abdo Luftu Ali v. U.S. Department of State: U.S. Passport Revocation After Almost 30 Years

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Excerpt from Abdo Luftu Ali v. U.S. Department of State/Memorandum of Opinion March 17, 2021:

Plaintiff Abdo Ali (“plaintiff’ or “Ali’”) brings this action under the Administrative Procedure Act (“APA”) against the U.S. Department of State (“State Department” or “defendant”), seeking an order setting aside defendant’s revocation of Ali’s U.S. passport.
[…]
Ali currently resides in Oxford, Mississippi, but he was born in Yemen in 1979. At the time, Ali’s father was a U.S. citizen, having naturalized approximately ten and a half years earlier in January 1969. Compl. 4 8. In 1990, Ali was first issued a U.S. passport under Section 301(g) of the INA on the grounds that he was a child of a U.S. citizen, who, prior to Ali’s birth, had been present in the U.S. for at least ten years, including at least five while he was older than fourteen. Jd. 410. Ali entered the United States in 1994 and was issued passport renewals in 1999 and 2009. Id. § 13. Because passports “may be issued only to a U.S. national,” 22 C.F.R. § 51.2(a), the initial issuance of Ali’s passport and the subsequent renewals necessarily constituted findings that Ali was a U.S. national. See Compl. ff 14, 19. On January 8, 2019, however, the State Department revoked Ali’s passport on the ground that he was not a U.S. national. Id. ¥ 15; see also 22 C.F.R. § 51.62(b) (“The Department may revoke a passport when the Department has determined that the bearer of the passport is not a U.S. national.”). In a letter to Ali, the State Department explained its decision by noting that sometime after the 2009 renewal, “[a]n investigation .. . revealed that [Ali’s] father was not physically present in the United States for ten years before [Ali’s] birth,” as was then required by Section 301(g) of the INA. See Ex. A to Pl.’s Opp. to Def.’s Mot. to Dismiss (“PI.’s Opp.’””) [Dkt. #9-1] at 1.! The letter cited documentation supporting its position but lacked any explanation as to why the State Department had initially issued Ali a passport and subsequently renewed it twice. Jd.; Compl. 418.

On May 30, 2020, Ali filed this suit under the APA, 5 U.S.C. § 701 et seq., seeking to set aside the revocation decision. See Compl. at 8. The complaint alleges that, “to the best of his knowledge,” Ali is a citizen and national of the United States, id. { 3, and that the State Department’s decision to revoke his passport was “arbitrary . . . as well as not being in accordance with law.” Id. § 1. In the alternative, the complaint states that “even if [Ali] is not a national of the United States,” the revocation should still be set aside because the State Department “is estopped by laches and equitable estoppel from revoking [] Ali’s passport.” Jd. § 2.
[…]
In an attempt to avoid the preclusive effect of § 1503(a), Ali argues in the alternative that he is permitted to proceed with this suit under the APA regardless of whether he is, in fact, a U.S. national. See Pl.’s Opp. at 3 (invoking this Court’s equitable powers under the doctrines of laches and estoppel). Under this theory, plaintiff would have the Court set aside defendant’s revocation of Ali’s passport even though he fails to allege that he meets the necessary precondition for a U.S. passport—being a U.S. national, 22 C.F.R. § 51.2(a). See Pl.’s Mot. at 4—5 n.2 (stating that Ali does not “claim unequivocally” that he is a U.S. national, but “maintains that .. . even if he is not a U.S. national, the [State] Department should be estopped from denying it”). Unfortunately for plaintiff, this I cannot do.

The power to issue passports rests solely in the Secretary of State or a designee. 22 U.S.C. § 211a (providing that the Secretary possesses the authority to “grant and issue passports .. . and no other person shall grant, issue, or verify such passports”). Passports may only be issued to U.S. nationals, see 22 C.F.R. § 51.2(a), and the State Department may revoke those passports when it determines that the bearer of the passport is not a U.S. national. 22 C.F.R. § 51.62(b); see also 22 U.S.C. § 212 (“No passport shall be granted or issued to or verified for any other persons than those owing allegiance, whether citizens or not, to the United States.”’).

The Court’s power to craft equitable remedies, while broad, does not permit it to interfere with this statutory and regulatory scheme. See INS v. Pangilinan, 486 U.S. 875, 883-84 (1988) (holding courts’ equitable authority does not extend to crafting remedies contrary to Congressional statutes). Especially in the immigration context, the Court may not rely on the doctrine of laches or the doctrine of equitable estoppel to override public policy as established by Congress. See id. at 885 (“Neither by application of the doctrine of estoppel, nor by invocation of equitable powers, nor by any other means does a court have the power to confer citizenship in violation of [statutory limitations].”).

Congress has established that only U.S. nationals may receive a passport. See 22 U.S.C. § 212. It has also provided, through 8 U.S.C. § 1503(a), a mechanism to challenge agency determinations that an individual is not a U.S. national. But where a _ plaintiff refuses to pursue this avenue of relief, courts may not grant through alternative equitable means what is effectively the same result—a determination that the State Department must treat plaintiff as if he is a U.S. national. See Pangilinan, 486 U.S. at 883-84.

Accordingly, no matter how plaintiff frames his complaint, it fails to state a claim under the APA.
[…] the Court GRANTS defendant’s motion to dismiss and DISMISSES the action in its entirety.

In footnote 7, the Court talks about what must be “exceedingly frustrating”:

The Court appreciates that the State Department’s conduct in recognizing Ali as a U.S. national for almost thirty years, only to reverse that determination with minimal explanation, must be exceedingly frustrating. But plaintiffs recourse nonetheless lies under Section 360(a) of the INA, not the APA. See Hassan, 793 F. Supp. 2d at 443 (noting that although multiple inconsistent decisions from the government over a span of many years created an understandable frustration, no action was cognizable under the APA with respect to the revocation of plaintiff’s passport).

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Ex-FSO Indicted For Concealing Information in Background Investigation

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On April 2, the Department of Justice announced the indictment of a former State Department employee, a Foreign Service officer for “intentionally concealing information on his SF-86 background investigation questionnaires and in interviews with State Department background investigators.”
Congressional record indicates that a Paul M. Guertin of RI was confirmed by the U.S. Senate by voice vote on October 21, 2011  for his appointment as Foreign Service Officer of Class Four, Consular Officer and Secretary in the Diplomatic Service of the United States of America.
 Via USDOJ: Former State Department Employee Indicted for Concealing Information in Background Investigation

Paul Michael Guertin (“Guertin”), 40, of Arizona and former resident of Washington, DC, was indicted on March 29, 2021 by a federal grand jury in the District of Columbia for wire fraud and obstructing an official proceeding. The indictment was announced by Acting U.S. Attorney Channing D. Phillips and Special Agent in Charge Elisabeth Heller, of the U.S. Department of State, Office of Inspector General.

Guertin was a Foreign Service Officer who served on multiple State Department assignments, including overseas postings to U.S. diplomatic missions in Shanghai, China and Islamabad, Pakistan, and a posting to the Bureau of Intelligence and Research at State Department headquarters in Washington, DC. As a condition of his employment, Guertin was required to apply for and maintain a Top Secret security clearance.  According to the indictment, Guertin intentionally concealed information on his SF-86 background investigation questionnaires and in interviews with State Department background investigators. He withheld information about several categories of conduct, including an undisclosed sexual relationship with a Chinese national, whose U.S. visa application was adjudicated by Guertin while he was serving as a consular officer in Shanghai, China; undisclosed gambling debts; and an undisclosed $225,000 loan from two Chinese nationals, who were directed by Guertin to provide $45,000 of the initial disbursement in the form of cash in $100 bills.

An indictment is a formal accusation of criminal conduct, not evidence of guilt.  A defendant is presumed innocent unless proven guilty.

This matter was investigated by the U.S. Department of State, Office of Inspector General and is being prosecuted by Assistant U.S. Attorneys Christopher Brown and Thomas Gillice, with assistance from Paralegal Specialist Chad Byron.

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SF-86 form clearly states under Penalties for Inaccurate or False Statements that “the U.S. Criminal Code (title 18, section 1001) provides that knowingly falsifying or concealing a material fact is a felony which may result in fines and/or up to five (5) years imprisonment.”
According to the indictment, the Grand Jury was sworn in on January 28, 2021. The indictment includes two offenses: Count One: 18 U.S.C. § 1343: (Wire fraud); Count Two: 18 U.S.C. § 1512(c)(2) (Obstructing an official proceeding) plus Forfeiture: 18 U.S.C. § 981(a)(1)(C); 28 U.S.C. § 2461(c); 21 U.S.C. § 853(p) according to the court filing. Grand juries are composed of 16 to 23 citizens, who hear a wide range of criminal cases and decide whether there is evidence to justify indictments sought by federal prosecutors. To return an indictment, a minimum of 12 members of a grand jury must find probable cause.
Excerpts below from the indictment filed in the U.S. District Court for the District of Columbia:

3. During his tenure as a Foreign Service Officer, GUERTIN served on multiple State Department assignments abroad, including postings to diplomatic missions in Shanghai, China and Islamabad, Pakistan. GUERTIN also served at State Department headquarters in the District of
Columbia in the Bureau of Intelligence & Research (“INR”), the State Department’s intelligence office. GUERTIN was later assigned to language training in Taipei, Taiwan.

9. In connection with his initial employment with the State Department and periodic re-investigations, GUERTIN signed and submitted SF-86 forms on or about September 27, 2005; November 19, 2010; and April 3, 2016.

The indictment cites Guertin’s “undisclosed conduct” that includes Undisclosed Romantic Relationship with Chinese National Whose U.S. Visa Application GUERTIN Adjudicated; Undisclosed Financial Problems Due to Gambling; and Undisclosed $225,000 Loan Agreement with Two Chinese Nationals, Collateralized by GUERTIN’s House. The indictment also cites some electronic communication.

15. In or about June 2008, GUERTIN conducted a visa application interview with CHINESE NATIONAL 1 in his capacity as a consular officer at the U.S. Consulate in Shanghai, China. On or about June 11, 2008, GUERTIN favorably adjudicated CHINESE NATIONAL 1’s application for a U.S. visa.

16. Two days later, on or about June 13, 2008, GUERTIN sent CHINESE NATIONAL1 an e-mail stating: “I gave you an interview a few days ago here in Shanghai, and thought you were very cute and interesting! 🙂 Was wondering if you’d be interested in going out for dinner or a bite to eat sometime.” GUERTIN initiated a personal and sexual relationship with CHINESE NATIONAL 1 that lasted through at least in or about July 2009.

26. On or about July 13, 2015, GUERTIN sent an e-mail to an associate requesting an emergency loan of $10,000 in order to pay down his gambling debts in advance of his security clearance re-investigation. GUERTIN stated: “I desperately need 10 dimes to get my [stuff] in order and pass a security clearance review to hold onto my job.” GUERTIN further explained: “Every 5 years the State Dept. does a security clearance re-investigation, and mine is coming up in 3 months, and they’re for sure going to see that my credit score dropped hard from the last time they checked. That will cause them to get suspicious, and then they’ll search my bank account transactions and find all the gambling related [stuff]. . . . [t]hey’1l send me home from Taiwan and if they revoke my security clearance I’Il lose my job within 6 months.”

30. On or about April 15, 2015, GUERTIN directed CHINESE NATIONAL 2 and CHINESE NATIONAL 3 to meet him at a location in the District of Columbia for the purpose of withdrawing $45,000 in cash from their bank account for a further disbursement of the $225,000 loan. GUERTIN instructed them: “Also please ask the bank manager to give you as much as possible of the money in $100 bills so it’s not so ridiculously bulky to carry around and deposit, thx!”

The indictment does not indicate what happened in August 2017 when his employment apparently ended. It is also not clear when and for how long was he posted at INR.
The indictment does not explain Guertin’s relationship with the two Chinese nationals only referred to as Chinese National 2 and Chinese National 3.  Guertin was posted in Shanghai in 2008 which would have been a two-year tour. The loan agreement with the two Chinese nationals allegedly occurred in April 2015. We should learn more if  this case progresses in court.
USA v. Guertin was assigned to Judge Trevor N. McFadden in the U.S. District Court for the District of Columbia. As this article notes, an indictment is not a statement of guilt — it is only a determination that enough evidence exists to move forward with charges. The defendant will have an opportunity to enter a plea. As of this writing, no initial appearance has been noted in court, and no plea has been entered.

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Do you know the statutory definition of “widow” for benefit purposes?

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Gibson v. Office of Personnel Management, No. 2020-1651 (Fed. Cir. September 9, 2020) (MSPB Docket No. PH-0831-20-0011-I-1): The appellant sought survivor annuity benefits under the Civil Service Retirement System, contending that she is a “widow” of a retired Federal employee. OPM denied the appellant’s application for benefits, finding that she did not meet the statutory definition of “widow” for benefit purposes under 5 U.S.C. § 8341(a)(1)(A), because the marriage to her husband lasted from May 21, 2018, until his death on February 15, 2019 (270 days). This was short of the “at least 9 months” requirement. On appeal, the Board affirmed OPM’s determination. Before the Federal Circuit, the appellant contested the application of the term “months” and argued that each month should be counted as having 30 days, meaning her 270-day marriage was 9 months in duration. The court rejected this argument and affirmed the Board’s final decision. Citing Supreme Court precedent as support, the court concluded that the phrase “9 months” has an “ordinary public meaning” that counts time as calendar months. The court further explained that Congress often uses, including in the statute at issue, “days” as a unit of measurement and could have done so in 5U.S.C. § 8341(a)(1)(A) if that were its intention. The appellant presented no grounds for “erasing the clear distinction between familiar counting methods.”

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/20-1651.OPINION.9-9-2020_1649543.pdf

 


 

 

Former FS Employee and Spouse Sentenced For Counterfeit Goods Trafficking

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On December 20, 2019, we blogged this: @StateDept Employee and Spouse Indicted for Trafficking in Counterfeit Goods from U.S. Embassy Seoul.  On March 18, 2021, USDOJ announced that the former employee and his spouse were sentenced for their roles in a conspiracy to traffic hundreds of thousands of dollars in counterfeit goods through e-commerce accounts operated from State Department computers at the U.S. Embassy in Seoul, Republic of Korea. Below via USDOJ:

Former State Department Employee Sentenced to Prison for Trafficking in Counterfeit Goods from U.S. Embassy

A former U.S. Department of State employee and his spouse were sentenced today for their roles in a conspiracy to traffic hundreds of thousands of dollars in counterfeit goods through e-commerce accounts operated from State Department computers at the U.S. Embassy in Seoul, Republic of Korea.
Gene Leroy Thompson Jr., 54, and Guojiao “Becky” Zhang, 40, pleaded guilty to one count of conspiracy to traffic in counterfeit goods on Dec. 20. 2020. Thompson Jr. was sentenced to 18 months in prison and three years of supervised release. Zhang was sentenced to three years of supervised release, the first eight months of which will consist of home confinement. Thompson Jr. and Zhang were also ordered to forfeit a combined total of $229,302.
According to court documents, Thompson Jr. was an Information Programs Officer employed by the Department of State at the U.S. Embassy in Seoul, Republic of Korea, a position that required him to maintain a security clearance. Zhang resided with him in Seoul. Between September 2017 and December 2019, Thompson Jr. and Zhang sold counterfeit goods on a variety of e-commerce platforms. Thompson Jr. used his State Department computer at the embassy to create numerous e-commerce accounts, including additional accounts under aliases to continue the conspiracy and avoid detection after several e-commerce platforms suspended the couple’s other accounts for fraudulent activity. Zhang took primary responsibility for operating the accounts, communicating with customers, and procuring merchandise to be stored in the District of Oregon. Thompson Jr. and Zhang also directed a co-conspirator in the District of Oregon to ship items to purchasers across the United States.
Acting Assistant Attorney General Nicholas L. McQuaid of the Justice Department’s Criminal Division; Acting U.S. Attorney Scott Erik Asphaug of the District of Oregon; and Assistant Director Ricardo Colón of the U.S. Department of State’s Diplomatic Security Service (DSS) made the announcement.
The case was investigated by the DSS Office of Special Investigations with assistance from the U.S. Postal Inspection Service. The case is being prosecuted by Senior Counsel Frank Lin of the Criminal Division’s Computer Crime and Intellectual Property Section, Trial Attorney Jay Bauer of the Criminal Division’s Human Rights and Special Prosecutions Section, and Assistant U.S. Attorney Amy Potter of the District of Oregon.

 


 

 

Judicial Actions Involving Foreign Service Grievance Board Rulings

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The Foreign Service Grievance Board’s Annual Report for 2020 was released on March 1, 2021. It includes a summary of judicial actions involving the Board’s decisions:
Two decisions were issued in 2020 in court cases related to appeals from Board decisions:
FSGB Case No. 2017-014

The grievant in FSGB Case No. 2017-014 was denied tenure and scheduled for separation from the Foreign Service. Consequently, the Department ordered her to leave her overseas post and assigned her to a position in Washington, D.C. The grievant filed a grievance challenging the reassignment. The Department denied the grievance, and the Board affirmed the Department’s decision. The grievant appealed the Board’s decision to the U.S. District Court for the District of the Virgin Islands, St. Croix Division, which upheld the Board’s ruling in a decision issued September 24, 2018. On appeal, the Court of Appeals for the Third Circuit affirmed the lower court decision, in an order issued January 8, 2020.

FSGB Case No. 2012-057

USAID OIG had recommended that the grievant in FSGB Case No. 2012-057 be separated for cause. The Board approved the agency’s decision in 2017, and she was removed for knowingly submitting false vouchers over a six-month period. The grievant appealed to the U.S. District Court for the District of Columbia, and in a decision issued October 12, 2018, the judge upheld the Board’s decision on summary judgment, and affirmed the Board’s decision rejecting grievant’s whistleblower retaliation claim. The grievant appealed to the U.S. Court of Appeals for the D.C. Circuit, which in an unpublished judgment on July 24, 2020 affirmed the District Court’s dismissal, validating the Board’s decision.

Pending court cases:
Consolidated cases 2013-031R and 2016-030

In a long-running case, an appeal by the State Department and USAID/OIG of the Board’s 2017 decision in consolidated cases 2013-031R and 2016-030 remains pending in the U.S. District Court for the District of Columbia. The case concerns the calculation of a Foreign Service Officer’s retirement annuity. As described in previous annual reports, the grievant in those cases contested the Department’s decision to calculate his retirement annuity based on the application of a pay cap on his special differential pay that had not been applied when his salary was paid. The Board initially upheld the agency’s decision in 2014. Grievant appealed, and in Civil Action No. 14-cv-1492, the District Court vacated the Board’s decision and remanded the case to the Board for further review. On remand, the Board issued a decision granting grievant the calculation and payment of his annuity that he sought. The Board denied the Department’s request for reconsideration of that decision. The Department and USAID/OIG jointly appealed the Board’s decision on remand to the District Court in Civil Action No. 18-cv-41, where it remains pending.

FSGB Case No. 2016-063

The grievant in FSGB Case No. 2016-063 challenged a one-day suspension based on three specifications of a charge of Improper Personal Conduct – two involving alleged inappropriate comments, and a third involving an alleged physical touching of another employee. The Department denied the grievance, and the Board affirmed in part, sustaining specifications of misconduct pertaining to one of the alleged comments and to the alleged touching, and holding that the suspension was reasonable in light of the two specifications that were sustained. The grievant appealed the decision to the U.S. District Court for the District of Columbia. The case is pending in District Court.

FSGB Case No. 2014-003

As discussed in previous annual reports, the grievant in FSGB Case No. 2014-003 filed an appeal of the Board’s decision in the U.S. District Court for the District of Colombia. She claimed that the Department violated the Americans with Disabilities Act and the Rehabilitation Act when it failed to provide her with reasonable accommodation when she was separated for failing to meet the running requirement for newly-hired DS agents and by failing to assign her to a different, available position. On May 2, 2019, the Court referred the case to a magistrate for mediation and on May 7, 2019, the magistrate ordered appointment of counsel for the grievant. The parties began mediation at the end of 2020 and are still engaged in mediation efforts. No trial date has been set.

Pending with the Board
FSGB Case No. 2014-018

Also as described in previous reports, the appellant in FSGB Case No. 2014-018 had requested a waiver of collection of a substantial overpayment of her deceased mother’s survivor’s annuity. The Department contended that she was not entitled to consideration of a waiver because the overpayment was made to her mother’s estate, and under Department regulations, estates are not entitled to waivers. The Board concurred and grievant appealed. In a decision issued March 23, 2017, the U.S. District Court for the District of Columbia found that the Board had erred in determining that the overpayments were made to the mother’s estate rather than to grievant as an individual. The court remanded the case to the Board for consideration of the merits of the waiver request. The Department moved the court for reconsideration. The court denied the Motion for Reconsideration in an order dated January 19, 2018, and again remanded the case to the Board. The Board remanded the case to the Department for a determination in the first instance as to whether the appellant’s request for a waiver should be granted. On August 6, 2019, the Department’s Associate Comptroller denied the waiver request and the parties entered into settlement discussions, requesting a stay in the proceedings in the interim. The stay has since expired and the appellant’s appeal to the Board is now pending.

 


 

USA v. Raymond: Court Issues Protective Order Pertaining to Classified Information

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Back in October, we blogged about ex-USG employee Brian Jeffrey Raymond who was called an “experienced sexual predator,” and ordered removed to D.C.  The Motion for Pre-Trial Detention in this case says that the government’s investigation has revealed 22 apparent victims thus far – the initial sexual assault victim plus 21 additional victims found on the defendant’s devices and in his iCloud. And this individual reportedly had taken over 10 polygraphs during his career. 
Court records of February 9 indicate that the Preliminary Hearing will  continue on 3/26/2021 at 11:30 AM in Telephonic/VTC before Magistrate Judge Zia M. Faruqui in the U.S. District Court for the District of Columbia.
On February 18, a “Protective Order setting forth procedures for handling confidential material; allowing designated material to be filed under seal as to Brian Jeffrey Raymond” was issued by the Court.
Uh-oh!
On March 1, 2021, the Court issued an order granting a consent motion for Protective Order Pursuant to Section 3 of the Classified Information Procedures Act by USA as to Brian Jeffrey Raymond. Excerpt:
The case will involve information that has been classified in the interest of national security

“The Court finds that this case will involve information that has been classified in the interest of national security. The storage, handling, and control of this information will require special security precautions mandated by statute, executive order, and regulation, and access to this information requires appropriate security clearances and need-to-know, as set forth in Executive Order 13526 (or successor order), that has been validated by the government.2 The purpose of this Order is to establish procedures that must be followed by counsel and the parties in this case. These procedures will apply to all pretrial, trial, post-trial, and appellate matters concerning classified information and may be modified from time to time by further Order of the Court acting under its inherent supervisory authority to ensure a fair and expeditious trial.”

Any classified information provided to the defense…

“Any classified information provided to the defense and the defendant by the government, or to the defense by the defendant, is to be used solely by the defense and solely for the purpose of preparing the defense. The defense and the defendant may not disclose or cause to be disclosed in connection with this case any information known or reasonably believed to be classified information except as otherwise provided herein.”

For Cleared Counsel Only

“The government may disclose some information to defense counsel only. This information shall be clearly marked “FOR CLEARED COUNSEL ONLY.” For any such information, defense counsel may not confirm or deny to the defendant any assertions made by the defendant based on knowledge the defense may have obtained from classified information, except where that classified information has been provided to the defendant pursuant to this Order. Any classified information the defense discloses to or discusses with the defendant in any way shall be handled in accordance with this Order and the attached Memorandum of Understanding, including such requirements as confining all discussions, documents, and materials to an accredited SCIF.”

Defendant’s Memorandum of Understanding

“As a former U.S. government employee who had access to classified information, the defendant has a continuing contractual obligation to the government not to disclose to any unauthorized person classified information known to him or in his possession. The government is entitled to enforce that agreement to maintain the confidentiality of classified information, and the defendant must sign the Memorandum of Understanding. The defendant is subject to this Court’s authority, contempt powers, and other authorities, and shall fully comply with the nondisclosure agreements he has signed, this Order, the Memorandum of Understanding, and applicable statutes.”

The order includes provisions for a secure area for the defense, filing of papers by the defense, filing of papers by the USG, record and maintenance of classified filings, the Classified Information Procedures Act, access to classified information, and special procedures for audio recordings.
The footnotes includes notation that “The Court understands that the government may move for a supplemental protective order depending on the nature of additional information that is determined to be discoverable” and that  “Any individual to whom classified information is disclosed pursuant to this Order shall not disclose such information to another individual unless the U.S. agency that originated that information has validated that the proposed recipient possesses an appropriate security clearance and need-to-know.”

Previously, on December 15, 2020, the FBI released the following announcement seeking potential victims in their Brian Jeffrey Raymond investigation.

Seeking Potential Victims in Brian Jeffrey Raymond Investigation

The FBI and the U.S. Department of State’s Diplomatic Security Service are asking for the public’s help in seeking potential victims of and additional information about an alleged sexual offender, Brian Jeffrey Raymond.

Raymond, 44, was formerly a U.S. government employee, and he traveled extensively overseas, including in Mexico and Peru. He speaks both Spanish and Mandarin Chinese. Raymond had been living in Mexico from August 2018 to May 2020.

Raymond was charged in connection with an instance in which he allegedly met a victim on a dating application and had videos and photographs of the victim showing her unconscious and partially undressed.

Raymond was arrested in La Mesa, California, on October 9, 2020. The investigation is ongoing and has revealed photographs and videos of additional adult women on Raymond’s devices and electronic accounts.

If you believe you have been a victim of Brian Jeffrey Raymond, the FBI requests that you fill out this secure, online questionnaire. The questionnaire will assist law enforcement with the investigation.

If you believe you or someone you know may have information regarding Brian Jeffrey Raymond, please complete this same questionnaire, or you may email ReportingBJR@fbi.gov or call 1-800-CALL-FBI.

The FBI is legally mandated to identify victims of federal crimes it investigates. Identified victims may be eligible for certain services and rights under federal and/or state law.

Questionnaire

Additional Resources

 

To-date, we have not/not been able  to find a press release or DSS articles from Diplomatic Security regarding this alleged sexual offender with apparently extensive overseas travel in Mexico and Peru.
Neither US Mission Mexico nor US Embassy Peru carries the FBI press release on its website in English or Spanish seeking potential victims in this case. The USG is seeking potential victims, is it not?

 


 

 

Ex-@StateDept Staffer Charged in 1/6 Insurrection to Remain in Custody Pending Trial

On March 4, former political appointee at the State Department Federico Klein was arrested in connection with the January 6 insurrection (see Three Current/Former @StateDept Employees Float to the Top in Crowded Bad News Cycle).  Klein is really going to be unhappy with his continued accommodations at the D.C. jail. On March 9 the DOJ filed its memo in support of pre-trial detention and the judge agreed to keep him in custody. Excerpt below from the pre-trial detention memo:
The dangerousness of Klein’s participation in the mob that day is only heightened by the fact that, at that time, he was an employee of the Department of State, with an obligation to uphold the Constitution. By law, federal employees are required to take an oath of office, swearing to “support and defend the Constitution of the United States against all enemies, foreign and domestic…” 5 U.S.C. § 3331. Presumably, Klein took that same oath of office when he entered federal employment. Despite his oath to support and defend the Constitution, Klein demonstrated his contempt for that oath, the legitimate functions of the government, and for the Constitution itself when he assaulted officers in an attempt to stop the certification of a lawful election. By his actions on January 6, 2021, Klein abdicated his responsibilities to the country and the Constitution. Despite the trust the country and government placed in Klein’s character, stability, trustworthiness, reliability, discretion, honesty, judgment, and unquestionable loyalty to the United States,5 Klein’s behavior revealed that his true allegiance lies elsewhere. Rather, Klein’s actions established that his own personal beliefs override the rule of law and that he will use violence in an attempt to halt the legitimate functions of the United States government with which he disagrees. Such blatant disregard of the law and the authority of a lawful government, along with his indifference to keeping his own commitments – even when made under oath – weigh in favor of detention. If Klein is unwilling to obey orders while in full view of law enforcement, or to conform his behavior to the law even when he disagrees with it, despite his oath to the Constitution, it is unlikely that he would adhere to this Court’s directions and release orders.
The criminal complaint dated March 2, 2021 charged Klein with the following:
18 U.S.C. § 1752(a)(1) – Knowingly Entering or Remaining in any Restricted Building or Grounds Without Lawful Authority,
40 U.S.C. § 5104(e)(2) – Violent Entry and Disorderly Conduct on Capitol Grounds,
18 U.S.C. § 1512(c)(2) – Obstruction of Justice/Congress,
18 U.S.C. § 231(a)(3) – Obstruction of Law Enforcement During Civil Disorder,
18 U.S.C. § 111(a)(1) – Assaulting, Resisting, or Impeding Certain Officers,
18 U.S.C. § 111(b) – Assaulting, Resisting, or Impeding Certain Officers Using a Dangerous Weapon


 

Three Current/Former @StateDept Employees Float to the Top in Crowded Bad News Cycle

/Updated 7:28 pm EST with comment from State Department.

Ugh! Three in less than three weeks!
Three current and former employees of the State Department are currently in the news. One case before the court is a political appointee arrested in connection with the January 6 insurrection.  Apparently, the individual was not happy with the accommodations at the D.C. jail.  After the charges were read, the charged individual reportedly asked the court if he could sleep where there are no cockroaches everywhere. Via WaPo:
“I wonder if there’s a place where I can stay in detention where I don’t have cockroaches crawling over me while I attempt to sleep…I mean, I really haven’t slept all that much, your honor. It would be nice if I could sleep in a place where there were not cockroaches everywhere,” Klein said.
Two other cases involved career employees. We see that there are already calls for an investigation or firing of these employees on social media. Note that unlike political appointees, career employees have certain job protections (political appointees only need a big dog to look after them, see IO).
We’ll have to wait and see what happens with these cases.  The State Department (with few exceptions)  typically will not publicize or even elaborate on personnel actions, but it is likely that any actions possibly resulting from these cases could end up in the Foreign Service Grievance System, as provided by regulations. Cases that make news, even those noted for notoriety often take a while to go through the system. Exceptions are for cases where there is a criminal offense and an individual is charged; there is no grievance case then, only a court case.
Former political appointee Federico Klein was arrested in relation to the January 6 insurrection.
On March 4, a former political appointee at the State Department Federico Klein was arrested in connection with the January 6 insurrection. According to the Statement of Facts by an FBI agent:
Based upon the information provided by Tipster 1 and Witness 1, your affiant determined that KLEIN had been an employee of the United States Department ofState (DOS) on January 6, 2021. KLEIN resigned his position on January 19, 2021. You affiant also learned that, on January 6, 2021, KLEIN possessed a Top Secret security clearance that had been renewed in 2019.
On February 10, 2021, your affiant and a DOS Diplomatic Security Special Agent interviewed an identified individual ( hereinafter“Witness 2 , former colleague of KLEIN’s at DOS. Witness 2 andKLEIN worked together from approximately February 2019 through January 2021. KLEIN was a Schedule- C political appointee who began working at DOS in 2017 in the office of Brazilian and Southern Cone Affairs. Witness 2 worked with KLEIN in-person multiple times per week throughout the time they worked together. Witness 2 reported that they had no animosity towards KLEIN. Witness 2 last saw KLEIN on January 19, 2021; Witness 2 recalled the specific date because it was prior to President Biden’s inauguration and KLEIN’s resignation from DOS. Your affiant showed Witness 2 several still photographs from a video posted on YouTube that depicted some of the events at the United States Capitol onJanuary 6 ,2021. Witness 2 positively identified KLEIN in the photos.
During the March 5 DPB,  State Department spokesperson Ned Price said: 
“… we do not have a specific comment on Mr. Klein. This is a matter that’s being investigated by the FBI, and they are the appropriate agency to answer questions specific to the charges. I believe the Department of Justice will be in a position to provide more details on those charges today.
Generally speaking, Mr. Klein served as a Schedule C presidential employee at the Department of State from 2017 until his resignation in January. He worked as a staff assistant with the transition team and as a special assistant in the Bureau of Western Hemisphere Affairs, but we of course wouldn’t comment on any pending criminal charges.”

Diplomatic Security’s Nick Sabruno made it to CNN, and not/not in a good way:
On March 4, CNN reported that Nick Sabruno, a top State Department diplomatic security official in Afghanistan was removed from his role for declaring the “death of America” and making racist comments about Kamala Harris in a post on his Facebook page when Trump lost the presidential election. In November 2020.  Uh, SDO fella, try not to pat your back too hard, you might break it!
“I think it is completely out of line. And I am damn proud of the steps we took to remove him from post pretty damn quickly,” said a State Department official familiar with the matter.

Foreign Service Officer Fritz Berggren made the news here, there, and in Israel:
On February 26, Politico’s Nahal Toosi reported that FSO  Fritz Berggren for several years has been publicly calling for the establishment of Christian nation-states, warning that white people face “elimination” and railing against Jews as well as Black Lives Matter and other social movements. He has a blog, and is on multiple social media platforms. He is big news in Israel and the Anti-Defamation League (ADL) has called for a full investigation. As of this writing, his blog remains up and appears to have regular updates.


 

 

Final Fee Determination in Largest Title VII Sex Discrimination Class Action #USIA #DOS

 

The case is Civil Action No. 1977-2019 HARTMAN, et al v. ALBRIGHT, et al (now called CAROLEE BRADY HARTMAN, et al., v. MICHAEL R. POMPEO, et al.,name substituted under under Federal Rule of Civil Procedure 25(d)):

This case is in all respects extraordinary. Originating over forty years ago, it represents the largest Title VII sex discrimination class action settlement in United States history. Its over 1,000 class members each received an average of $460,000—the largest per-capita recovery in a case of its kind. Class members are women who sought employment or promotions with the United States Information Agency, a former agency of the United States government, the relevant components of which were incorporated into the State Department. Remarkably, the lead counsel for the class, Bruce Fredrickson, took on the case as a 26-year-old just one year out of law school and, now well into his sixties, has stayed on for its duration. Over the last four decades, Mr. Fredrickson has led a team of over 120 individuals across seven law firms. In 2018, the last of the $508 million settlement fund was distributed to class members, leaving resolution of attorneys’ fees as the sole remaining issue.

Since 1995, there have been 28 interim payments to class counsel for fees, expenses, and interest accrued during the pendency of the case, totaling $26,570,701.19. Plaintiffs now seek an additional $34,114,143.52, for a final total fee recovery of $75,000,000. 2 To justify this demand, Plaintiffs primarily argue that they are entitled to a percentage of the total settlement under a “constructive common fund” theory. Alternatively, Plaintiffs argue that an enhancement to the lodestar is proper because the lodestar calculated for the interim fee petitions does not reflect class counsel’s true market value and it does not adequately compensate them for delay in receiving payment.

For the reasons that follow, the court denies Plaintiffs’ motion without prejudice. This is a fee-shifting case—not a common-fund case—and the parties agreed to use the lodestar method— not the percentage-of-the-fund method—to calculate the final fee award. Although the court agrees with Plaintiffs that the interim lodestar is likely not an adequate measure of class counsel’s true market value, the court is not in a position to award an enhancement because the lodestar, as calculated, is itself inexact. The court is hopeful that this decision will provide a path forward for the parties to reach an agreement on what the proper lodestar should be, as well as any compensation for delay.
[…]
…. Plaintiffs need to go back to the drawing board. They bear the burden of “identifying a factor that the lodestar does not adequately take into account and proving with specificity that an enhanced fee is justified.” Purdue, 559 U.S. at 546. Although it is apparent that an adjustment to the lodestar for the eighth through twenty-eighth fee petitions (covering years 1998–2018) is necessary to “approximate[ ] the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case,” the court lacks the information necessary to “adjust the attorney’s hourly rate in accordance with specific proof linking the attorney’s ability to a prevailing market rate.” Id. at 551. Furthermore, although some additional compensation is appropriate to account for delay of amounts unpaid, Plaintiffs have not proposed “a method that is reasonable, objective, and capable of being reviewed on appeal” to calculate such amount. Id. Although the court denies Plaintiffs’ request for a final attorneys’ fee award at this juncture, the court hopes that its rulings will assist the parties in reaching a resolution. 

Footnote says that multiple judges have presided over this case during its 43-year lifespan. Read here.