Political Violence Against Americans in 2015: Highest in Near East Asia, Lowest in the Western Hemisphere

December 22, 2016 By domani spero in AF |Africa, Diplomatic Security, EAP|East Asia, EUR|Europe, Foreign Service, NEA|Near East Asia, Realities of the FS, Regional Bureaus, SCA | South Central Asia, Security, State Department, U.S. Missions, WHA|Western Hemisphere Tags: 2015, Africa, Directorate of Threat Investigations and Analysis, DS/TIA, East Asia Pacific, Near East Asia, Political Violence Against Americans, South Central Asia, Western Hemisphere

Posted: 1:55 am ET
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The Political Violence Against Americans publication is produced annually by the Bureau of Diplomatic Security’s Directorate of Threat Investigations and Analysis (DS/TIA) to provide a comprehensive picture of the spectrum of politically motivated threats and violence that American citizens and interests encounter worldwide. This report includes incidents of violence involving U.S. citizens and facilities with the exception of incidents against American military personnel serving in combat positions.

Of the 61 incidents that involved U.S. citizens and interests, 19 are believed to have resulted from intentionally targeting Americans while 42 are incidents where Americans or American interests were not targeted due to nationality.

The highest targets occurred in Near East Asia (NEA), followed by Africa (AF), and South Central Asia (SCA). In NEA, the most number of attacks were directed at private U.S. entities; in AF, the most number of attacks were directed at U.S. Government (USG) entities while in SCA, they were directed at the U.S. military. The top three most common types of attack are 1) “armed attacks” followed by 2) “stray round,” and 3) “bomb” tied with “attack with vehicle.”

The region with the lowest number of attacks is the Western Hemisphere (WHA) with one incident of vandalism directed at the USG. The second region with the lowest number of attacks is East Asia Pacific (EAP) with three incidents (attempted murder, bomb, violent demonstration) all directed at the USG.

Via state.gov/ds

Judicial Actions Involving Foreign Service Grievance Board (FSGB) Rulings in 2015

May 25, 2016 By domani spero in Court Cases, Foreign Service, Govt Documents, Grievance, Realities of the FS, State Department Tags: 2015, District Court for the District of Columbia, Foreign Service Grievance Board, Foreign Service Labor Relations Board, FSGB, FSGB Annual Report, Gregory Picur, Jeremy Yamin, Joan Wadelton, La Rufus Mitchell, Paul Fritch, SharLyn Foo

Posted: 12:15 am ET
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Below are three appeals of FSGB decisions that were filed in the District Court for the District of Columbia in 2015 and a few other cases currently pending in court. All extracted from the 2015 FSGB Annual Report:

In May, Paul Fritch appealed the Board’s decision in FSGB Case No. 2013-005. The circumstances of that case, as with two other appeals filed by Mr. Fritch with the Board, revolved around his transfer to the Organization for Security and Cooperation in Europe (OSCE) for seven years, and reemployment by the Department of State. Mr. Fritch’s district court appeal claims that the Department, affirmed by the Board decision, denied him benefits upon his return to which he was entitled by law, including promotion opportunities, housing expenses, lost contributions to his Thrift Savings Plan account, and position seniority. A decision is pending. (Also see How many people should be put through a wringer before, oh you know …. and Secondments to international organizations and promotions? Here comes the boo!).

In November, SharLyn Foo appealed the Board’s decision in FSGB Case No.2014-018, described above under financial cases resolved last year. The Board affirmed the Department’s denial of a waiver of repayment of annuity payments in excess of $300,000 deposited into Foo’s deceased mother’s account over more than a decade. A decision is pending.

Also in November, La Rufus Mitchell filed an appeal of the Board’s decision in FSGB Case No. 2014-003. Ms. Mitchell claims that the Department violated the Americans with Disabilities Act and the Rehabilitation Act when it separated her for not having passed the timed running test required for Diplomatic Security Agents. The Board had upheld the Department’s decision. (See the case description under Separation cases, above, for greater detail.) A decision is pending.

In an appeal filed by Gregory Picur, the district court vacated the Board’s decision in FSGB Case No. 3013-031 (sic). Mr. Picur, a retired criminal investigator with USAID/OIG, appealed the agency’s decision, upheld by the Board, to reduce his annuity payments based on the application of a cap on his special differential pay that had not actually been applied when his salary had been paid. The district court found that, regardless of whether the cap should have been applied, retroactive adjustments could not be made as part of the process of calculating his annuity. On remand, the Board has recently issued a decision in accord with the court’s findings. (Also see Picur v. Kerry: Court slaps down FSGB annuity decision as “arbitrary and capricious” and Foreign Service Grievance Board Annual Report 2014 — Noteworthy Cases). See FSGB files: 2013-031 09-16-2013 – B – Order – Motion for Hearing_Redacted; 2013-031R – 02-25-2016 – Decision on Remand Final – Redacted and 2013-031R – 03-24-2016 – Order – Stay – Redacted

The U.S. Court of Appeals for the District Court of Columbia Circuit upheld the district court’s summary judgment decision in favor of the Department in Richard Lubow, et al. v. United States Department of State, et al. This case has been active for several years. Appellants had grieved the Department’s application of a cap on their premium pay during their time in Iraq and its decision not to grant them a waiver of repayment of the amounts they had been paid in excess of that cap. The Board had affirmed the Department’s decision. (Also see No Publicity Zone — 2012 Judicial Actions Involving Foreign Service Grievance Board Rulings; Foreign Service Grievance Board Annual Report 2014 — Noteworthy Cases; DS Agents deployed to Iraq charged overpayment for overtime worked, State Dept demands repayment. Isn’t that like working for free?).

 Decisions in appeals filed by Jeremy Yamin (involving attorney fees) and Joan Wadelton (involving reconstituted selection boards), discussed in the Board’s 2014 Annual Report, are still pending. (See Wadelton-related posts below:)
- Former FSO Joan Wadelton With Truthout Goes to Court Over FOIA Case
- Joan Wadelton’s Appeal Makes it to FSGB 2011 Annual Report to Congress (diplopundit.net)
- Joan Wadelton’s Case: That’s One Messy Promotion Scorecard, Next Up – It’s GAO Time! (diplopundit.net)
- GAO Examines Foreign Service Promotion Process — Strengthened But Documentation Gaps Remain) (diplopundit.net)
- U.S. District Court for the Court of the District of Columbia | Wadelton v. State Department, 4/25/13 (pdf)
- Wadelton Case | The FOIA Project
- WADELTON et al v. DEPARTMENT OF STATE | Complaint 4/1/2013 (pdf)

Appeal to the Foreign Service Labor Relations Board (FSRLB) | In October, the Department of State filed an appeal to the FSRLB of the Board’s decision in the implementation dispute filed by AFSA in FSGB Case No. 2014-028. The FSGB found that the Department had violated negotiated Procedural Precepts when it failed to pay Meritorious Service Increases (MSIs) to members of the Foreign Service in 2013. The Department has alleged that the Board relied on erroneous facts and factual premises not in evidence, and disregarded the express terms of the collective bargaining agreement when it based its decision on past practice. (See Implementation Disputes, above, for greater detail.) Also see Burn Bag: @StateDept announces its disappointment … OMG! It’s nice to feel valued!

FSGB 2015 Annual Report: Grievance Processing Reduction — From 41 Weeks to 34 Weeks

May 25, 2016 By domani spero in Foreign Service, Govt Documents, Grievance, Realities of the FS, State Department Tags: 2015, AFSA, disability, Foreign Service Grievance Board, Foreign Service Labor Relations Board, FSGB, FSGB Annual Report, MSIs, PTSD, Social Media, US Embassy London

Posted: 12:08 am ET
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The Foreign Service Grievance Board has released its 2015 annual report. Excerpts below:

The FSGB, as the primary appeals tribunal for Foreign Service Officers, is in many cases the tribunal of last resort for a wide variety of disputes that arise in the context of employment in the Foreign Service. Although the Board’s decisions may be appealed to the Federal District Courts, such appeals are rare. Therefore, the Board holds sway over decisions that may not only adversely affect Foreign Service careers but that may be fatal to such careers.In its 2015 report, the FSGB says that it has “achieved significant progress in reducing the timelines from the inception of the appeal (or the filing of the grievance with the Board) to the issuance of the final decision. Taking into consideration certain anomalies (cases settled, withdrawn, etc.), the grievance processing time was reduced from an average of 41 weeks in 2014 to 34 weeks in 2015.”
[…]
The Board is constantly mindful that external trends and societal changes that affect the Foreign Service have a bearing on dispute resolution. In that regard, we have encouraged internal discussion and on occasion invited outside experts to make presentations on topics that we consider relevant to the Board’s core functions. For example, this past year the Board held a panel discussion on the impact of social media on diplomacy, including such issues as expectations of privacy and security of communications in a much more active cyber environment. We also invited four distinguished individuals to engage the Board in a wide-ranging discussion on disability and its impact on the Foreign Service. The discussion ranged from a report on what the Department of State is doing to provide accommodations for various employees who are disabled to the diagnosis and treatment of PTSD. These issues, along with a myriad of other conditions caused by service in stressful, dangerous and unhealthy posts abroad, have significant impact on behavior and performance and are often addressed by evolving laws and regulations; they are therefore relevant to the overall mission of the Board. My expectation is that the Board will continue to encourage discussion of issues that influence Foreign Service careers, and that will enlarge the Board’s understanding of the growing complexities in the practice of diplomacy and the legal framework that surrounds it.

Some of the notable 2015 FSGB cases:

One complex case arose from the circumstances following the September 11, 2012, attack on an American diplomatic post in Benghazi. The reviewing officer of a senior DS Agent was placed on administrative leave during the last four months of the rating period. No communication was allowed between the rated employee and reviewer during that time. Additionally, the rated employee was subsequently responsible for implementing many changes in procedures that had been in place under the reviewer who was placed on leave. The employee assumed that the person acting in the original reviewer’s stead would provide the reviewing statement for his EER. However, the Department determined that his former reviewer would write the reviewing statement, since that officer had not been formally reassigned and was familiar with grievant’s performance during most of the rating period. Grievant claimed that this decision, along with the Department’s decision to assign no reviewer for his subsequent Interim EER, contrary to grievant’s expectations, disadvantaged him in the highly competitive promotion process at the senior levels. The Board found that although the Department had contravened the regulations regarding reviewing officers, grievant, who had been recommended for performance pay, had not demonstrated actionable harm, and the grievance was denied. FSGB Case No. 2015-022. (This case does not appear to be available at fsgb.gov).

A second grievance illustrated an issue involving informal counseling that occurs with some frequency in cases that end up at the Board. Grievant, an untenured officer, challenged several EERs and a low ranking on a number of grounds, among them that he had not previously been counseled on deficiencies identified in his EERs. After a thorough review of the record, including contradictory statements by the employee and raters, the Board found that, with one exception, grievant had been counseled, albeit informally, but not in writing on the official counseling form as provided by Department regulations. In accordance with Board precedent, the Board found that such informal counseling was acceptable, although not the best practice. FSGB Case No. 2013-046. (PDF)

The appeal with the largest sum at stake was filed by the daughter of a deceased Foreign Service Officer. The Department sought to collect over $300,000 in annuity payments that it had continued to deposit to the account of the deceased’s wife (the grievant’s mother) for over a decade after the mother’s death. The grievant alleged that her mother had told her that the payments would be continued, and that she should use them for the benefit of her minor nephew, whose father had also died. When the Department requested repayment, grievant asked for a waiver. The Department denied the application for waiver on the basis that it (the agency) was prohibited by regulation from waiving repayment of overpayments made to an estate. The Board affirmed the Department’s findings. The grievant has appealed the decision to district court. (See Judicial Actions Involving Board Rulings, below.) FSGB Case No. 2014-018. (PDF)

In a second, unusual, case, the grievant was a Department employee who had filed the first Foreign Service grievance in 1972. At that time, he was due to be separated as a result of expiration of time in class, and would have received no retirement benefits. The grievant protested that the separation was really due to policy differences with his superiors. During the proceedings, grievant was separated and hired into a Civil Service position. He ultimately won the grievance, but was never reinstated in accordance with the remedies granted. Grievant requested that the Board negotiate a revised annuity based on the original grievance decision. The Board found that the passage of over four decades since the original grievance made the new grievance untimely, and it dismissed the case. FSGB Case No. 2014-042. (Also see FSGB Recognizes Grievant’s “Enduring Dissatisfaction” With @StateDept’s 40 Year Old Grievance Case — Where’s the Medal?)

A third case involved both a two-and-a-half-year delay in proposing discipline and post-traumatic stress disorder (PTSD), an issue that has arisen with increasing frequency in grievances. The grievant was a DS Agent who allegedly suffered from PTSD following an earlier military deployment to Iraq. The Department charged that grievant failed to inform it about the PTSD during the hiring process, and that he was taking prescription medication without notifying DS as required by the Foreign Affairs Manual (FAM). The Board sustained both charges but did not sustain two of the specifications under one of the charges, and remanded to the Department to reconsider the penalty. The delay was not found to have harmed or prejudiced the grievant in this case. FSGB Case No. 2014-020 (PDF).

One case involving the appeal of an assignment was closed this year. Grievant had been an FS-02 officer for several years when he was voluntarily separated and transferred to an international organization. He remained at the international organization for seven years, where he held a senior position in his final years. Grievant contested his assignment to an FS-02 position when he returned to State. However, he had also filed a whistleblower reprisal complaint with the Office of Special Counsel (OSC) involving the same issues. Grievant withdrew his grievance appeal in order to pursue the OSC complaint. FSGB Case No. 2014-025. (Also see How many people should be put through a wringer before, oh you know …. and Secondments to international organizations and promotions? Here comes the boo!).

Some unresolved cases at the end of 2015:

Grievant, an untenured DS Agent who spoke fluent Chinese, applied for an upgraded security clearance pursuant to a pending assignment to China. In mid-2013 he was informed that his Top Secret clearance was being suspended based on issues surrounding his personal conduct and his foreign preference and influence. The Department also suspended his law enforcement duties and LEAP, assigning the Agent to unclassified duties. Although the Agent was recommended for tenure the same year, tenure was withheld pending resolution of the security issues, and he was low ranked. Grievant challenges these actions on procedural grounds. FSGB Case No. 2015-034.

USAID sought to suspend a Management Officer assigned to a conflict zone for negligent contracting actions that it alleged led to the costly collapse of a roof on a new USAID building. The collapse took place in 2009; discipline was proposed in early 2013. As of mid-2015, the agency had not yet issued a final decision on the discipline; however, it was withholding the grievant’s promotion, recommended in 2013, pending that decision. The grievant challenged the agency’s action as untimely and also claimed as a defense that his alleged negligence was due to his PTSD. The case appeared to be near an agreed resolution last year when a second investigation of the grievant halted negotiations between the parties. FSGB Case No. 2015-020.

An employee posted to South America with USAID stopped on his way home by a local bar/grocery store, where, he alleges, his drink was drugged by a young woman who joined him. He claims that he awoke the next morning in a strange place, feeling ill and disoriented, and found that $5,000 had been charged to his debit card. The grievant and his wife state that he continued to hallucinate and be paranoid for two days, supporting their conclusion that he had been drugged. He reported the incident to the RSO and was later recommended for separation for cause based on two charges: 1) Conduct Unbecoming, for having had commercial sex in violation of Department policy; and 2) Dishonesty, for having reported his credit cards stolen, when he still had them in his possession. FSGB Case No. 2015-048. (This case does not appear to be available at fsgb.gov but a similar case is

FSGB No. 2012-019 (PDF) which also involves a drugged IMO employee).

IMPLEMENTATION DISPUTES

During the past year the Board resolved two implementation disputes filed by AFSA.

The first involved the meaning of language in the 2013 Precepts governing the award of Meritorious Service Increases (MSIs). AFSA and the Department had for many years negotiated the Procedural Precepts concerning MSIs. The Precepts had historically called for awarding MSIs to all employees recommended by the Selection Boards, up to a set percentage of employees in each competitive class. Due to the sequester of funds government-wide in 2013, the negotiated language permitted withholding payment of the MSIs. When the sequester was lifted, the Department nevertheless continued to withhold payment of the awards. AFSA argued that refusal to pay at that point violated the terms of the Precepts to which they had agreed. The Board found in AFSA’s favor, based on the parties’ past practice. The Department has appealed this decision to the Foreign Service Labor Relations Board, which has not yet ruled. FSGB Case No. 2014-028. (PDF)

In the second implementation dispute, AFSA alleged that the Department had failed to hold negotiations and/or reach agreement with it on an Embassy London change in practice relating to the deductions Embassy London employees could make from the salaries of their own domestic employees when those employees were given room and board in embassy-provided housing. AFSA contended that the embassy’s unilateral change violated the FAM and the parties’ 1987 Framework Agreement. The Board found that the appeal was filed late and dismissed it for lack of timeliness. FSGB Case No. 2015-005. (PDF).

Read the full report below or read it online via fsgb.gov:

@StateDept’s Foreign Service Nationals of the Year (2015)

February 17, 2016 By domani spero in Awards, Foreign Service, Locally Employed Staff, State Department, U.S. Missions Tags: 2015, FSN Awards, FSNs, FSNs of the Year, State Magazine

Posted: 12:14 am EDT
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Extracted from State Magazine, January 2016:

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By The Numbers: State Department Congressional Response 2015

February 12, 2016 By domani spero in Congress, Functional Bureaus, Govt Documents, Oversight, State Department, Technology and Work, Trends Tags: 2015, Assistant Secretary for Legislative Affairs, By The Numbers, Congressional Document Production Branch, HOGR, House Oversight and Government Reform Committee, Julia Frifield

Posted: 1:39 am EDT
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This past January, Assistant Secretary for Legislative Affairs Julia Frifield appeared before the House Oversight and Government Reform Committee (HOGR) to testify on the State Department’s response to Congressional requests for documents in 2015. Below is extracted from her prepared testimony (PDF):

160,000 pages: provided to the Committee for its investigation of embassy construction

6,000 pages: provided to the Committee on the Jakarta New Embassy Compound

5,000 constituent cases: response provided to members of Congress – everything from lost passports to missing constituents overseas to helping with visas for constituents’ family members.

2,500 briefings: provided to the Hill on foreign policy issues

2,137 Consular Notifications pages: provided to the Committee on overseas construction

1,700 Congressional letters: provided response to congressional inquiries

536: Congressional Member and staff delegation trips abroad.

168 Hearings: Congressional hearings where State Department officials appeared in 2015

21 staffers: people dedicated to processing documents with support from new legal and information technology personnel for the Congressional Document Production Branch.

9 Investigations: currently with the House Oversight and Government Reform Committee that the State Department is working on

1 Congressional Document Production Branch: new unit created at the State Department to “enabling us to respond to more committees simultaneously than ever before.”

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