US Embassy Caracas: Former FSN Pleads Guilty for Receiving Illegal Gratuity

In May 2012, we blogged about a US Embassy employee in Caracas, Venezuela who was was arrested in Washington, D.C., on one charge of conspiracy and two charges of bribery in connection with visa applications scheme (see US Embassy Caracas FSN Arrested on Conspiracy/Bribery Charges in Visa Applications Scheme)

On Wednesday, USDOJ announced that the former employee, Christian Adolfo Paredes Uzcategui, 44, of Caracas, pled guilty in the U.S. District Court for the District of Columbia. Below is the statement released:

WASHINGTON – A former visa assistant for the United States Embassy in Caracas, Venezuela, pled guilty today to a federal charge of receiving an illegal gratuity by a public official, stemming from a scheme in which he allegedly accepted payments to aid people in facilitating visa applications, U.S. Attorney Ronald C. Machen Jr. and Scott Bultrowicz, Director of the U.S. State Department’s Diplomatic Security Service, announced.

Christian Adolfo Paredes Uzcategui, 44, of Caracas, pled guilty in the U.S. District Court for the District of Columbia. The Honorable James E. Boasberg scheduled sentencing for Dec. 7, 2012. The charge carries a maximum sentence of two years in prison and a fine of up to $250,000.

Paredes was arrested in May 2012 following an investigation by the State Department’s Diplomatic Security Service.

According to a statement of facts, signed by the defendant as well as the government, Paredes worked for the State Department at the U.S. Embassy in Caracas as a visa assistant for non-immigrant visa applications. His duties included screening incoming documentation and information from a variety of sources to organize and track non-immigrant visa requests and ensuring that the legal requirements of non-immigrant visa applications were met.

As a visa assistant, he had access to Embassy databases, but only for official business and on a need-to-know basis. He was not to share this information without official permission.

In the middle of 2011, Paredes began receiving money from a private individual who acted as a “facilitator” for Venezuelan applicants seeking non-immigrant U.S. visas. In exchange, Paredes provided information about the facilitator’s clients. Between March 2011 and February 2012, the facilitator wire-transferred more than $5,000 to bank accounts controlled by Paredes in exchange for information about clients.

In announcing the plea, U.S. Attorney Machen and Director Bultrowicz commended the efforts of those who investigated the case for the Diplomatic Security Service. They also praised those who worked on the case for the U.S. Attorney’s Office of the District of Columbia, including Special Assistant U.S. Attorney David J. Mudd.

The original statement is posted here.

 

 

 

 

 

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Miller v. Clinton: Court Says State Dept Not/Not Exempt from Age Discrimination Law

We previously blogged about the Miller v. Clinton case in November 2010 (see Miller v. Clinton: Amcit FSN Takes State Dept to Court for Age Discrimination).

On November 4, 2010, the district court granted the State Department’s motion and dismissed the case with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6), holding that the Secretary of State may exempt employees hired under the authority of § 2669(c) from the statutory protections of the ADEA.

The case eventually landed in the Court of Appeals and on August 7, 2012, in a 2-1 decision the lower court’s decision was reversed. The opinion for the Court is filed by Circuit Judge GARLAND; the dissenting opinion is filed by Circuit Judge KAVANAUGH

Excerpts:

GARLAND, Circuit Judge: There is no dispute that the State Department terminated the employment of John R. Miller, Jr., a United States citizen working abroad, solely because he turned sixty-five years old. Indeed, it is the position of the Department that it is free to terminate employees like Miller on account of their age. Moreover, the necessary consequence of the Department’s position is that it is also free from any statutory bar against terminating an employee like Miller solely on account of his disability or race or religion or sex.

After being dismissed on his sixty-fifth birthday, Miller brought suit alleging that his forced retirement violated the federal employment provisions of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 633a. Accepting the State Department’s position, the district court dismissed Miller’s complaint on the ground that the statute under which Miller was hired, section 2(c) of the Basic Authorities Act, 22 U.S.C. § 2669(c), permits the Department to exempt Miller from the protections of the ADEA. We reverse, finding nothing in the Basic Authorities Act that abrogates the ADEA’s broad proscription against personnel actions that discriminate on the basis of age.

Miller is a U.S. citizen who was employed by the Department of State as a safety inspector at the U.S. embassy in Paris, France. He was hired in October 2003 as “locally employed staff” pursuant to a personal services agreement. Miller’s contract was negotiated and signed under the authority of section 2(c) of the Basic Authorities Act, which authorizes the Secretary of State to “employ individuals or organizations, by contract, for services abroad.” 22 U.S.C. § 2669(c); see U.S. Dep’t of State Personal Servs. Agreement (J.A. 23) (identifying 22 U.S.C. § 2669(c) as the exclusive “[s]tatutory authority for this agreement”). The proper construction of § 2669(c) is the central issue on this appeal.

Among other standard contractual provisions, Miller’s employment contract incorporates by reference “[a]ll provisions of the local compensation plan” for Foreign Service National employees in France. J.A. 23. One provision of the Local Compensation Plan (LCP) is a mandatory retirement clause. That clause follows the (apparently) prevailing French practice of mandating retirement at age sixty-five, and expressly states that “[a]ge 65 is the mandatory age limit for all employees under the LCP.” Foreign Serv. Nat’l Comp. Plan (J.A. 26).

In accordance with the mandatory retirement clause, Miller was advised by letter dated March 22, 2007 that he would be separated from his position due to age, effective July 23, 2007, his sixty-fifth birthday. There is no dispute among the parties that the sole reason for Miller’s termination was his age. The Department has not identified any concerns regarding Miller’s job performance or his ability to perform his duties. According to Miller’s supervisor, “[t]here was no other reason, to my knowledge, for Mr. Miller’s separation[;] it was strictly the mandatory age issue.” Kenan H. Hunter, EEO Investigative Aff. (J.A. 90).

In case you did not know this, the USG may discriminate against “aliens” employed outside the United States. More from the Miller opinion:

In 1974, Congress amended the ADEA to address “[n]ondiscrimination on account of age in Federal Government employment.” 29 U.S.C. § 633a. Section 633a broadly declares that “[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age.” Id. § 633a(a). The section includes an exception for “personnel actions with regard to aliens employed outside the limits of the United States,” id. (emphasis added), but contains no parallel exception for U.S. citizens so employed. Accordingly, it is undisputed that, as a general matter, the protections of § 633a extend extraterritorially to cover United States citizens employed by federal agencies abroad. See id. (stating that the statute is applicable to “executive agencies as defined in section 105 of Title 5”); see also 5 U.S.C. § 105 (“For purposes of this title, ‘Executive Agency’ means an Executive Department [or] a Government corporation.”).

Ah – but Miller is not an “alien” or an FSO who is subject to mandatory retirement:

[I]n several statutes Congress has clearly and affirmatively authorized the kind of mandatory retirement clause at issue here — but for specified classes of government employees that, again, do not include Miller. The statute that governs the Foreign Service Retirement and Disability System is one example. It states that “any participant shall be retired from the Service at the end of the month in which the participant has reached age 65.” 22 U.S.C. § 4052(a)(1). In Strawberry v. Albright, 111 F.3d 943 (D.C. Cir. 1997), a State Department employee who participated in a pension system governed by § 4052(a)(1) brought suit contending that the system’s mandatory retirement provision violated the ADEA. Not surprisingly, this court had little difficulty concluding that “the ADEA’s general prohibition of age discrimination does not prohibit enforcement of the mandatory retirement provision[]” for participants in the system, because § 4052(a)(1) specifically mandates retirement at age sixty-five and was passed after the ADEA was made applicable to federal employees. Id. at 947. Section 4052(a)(1) does not apply to Miller, however, because he was never a member of the Foreign Service or a participant in its retirement system.

One of the arguments employed by USG lawyers is to insist that “even if the statutory language is ambiguous, “the Secretary’s longstanding interpretation . . . is entitled to deference” under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). DOS Br. 18. Under Chevron’s familiar second step, “if the statute is silent or ambiguous with respect to the specific” point at issue, a court must uphold the agency’s interpretation as long as it is reasonable.”

The Court did not buy that and notes that “the State Department acknowledged that the Secretary has never promulgated a written interpretation of § 2669(c) that asserts the section authorizes her to find the ADEA inapplicable to a contract like Miller’s.” It also points out that “there is no evidence that the current Secretary or any of her predecessors ever knew of the interpretation being advanced in their names. Instead, the Department asks us to rely upon the contract itself, which, the Department says, reflects the agency’s consistent practice of at least twenty years.”

But here is the most interesting part of the opinion:

At oral argument, Department counsel suggested that, if U.S. employment discrimination laws were applicable to U.S. citizens hired abroad under § 2669(c), State Department supervisors might prefer to hire foreign workers who are not protected by those statutes. Oral Arg. Recording 25:00-26:15. Our dissenting colleague proffers a similar explanation of his own. Dissent at 7-9. This line of reasoning does not appear anywhere in the legislative history.28 Nor is that surprising. It requires the assumption that State Department supervisors would prefer to hire employees against whom they are free to discriminate — and that in the absence of a “level” playing field permitting them to discriminate against everyone, those supervisors would decline to hire U.S. citizens.

The Court is shocked 😯 and calls out the callousness and hypocrisy of the institution whose mission is to “Shape and sustain a peaceful, prosperous, just, and democratic world and foster conditions for stability and progress for the benefit of the American people and people everywhere.”

Indeed, while it would be surprising for Congress to assume such callousness on the part of State Department officials, it is more than merely surprising to hear the Department make the same assumption about its own people. And that is doubly so in light of the repeated declarations that it “provides equal opportunity and fair and equitable treatment in employment to all people without regard to race, color, religion, sex, national origin, age, disability, political affiliation, marital status, or sexual orientation.”
[…]
[W]e conclude that the legislative history’s vague references to “flexibility” and “competitive[ness]” are insufficient to indicate a congressional intent to permit the State Department to discriminate against U.S. citizens hired abroad.

And so the reversal:

The judgment of the district court, granting the State Department’s motion to dismiss Miller’s ADEA claim, is reversed, and the case is remanded for further proceedings consistent with this opinion.

Don’t say amen yet.  This is not the end of this, just wait …

Domani Spero

US Embassy Caracas FSN Arrested on Conspiracy/Bribery Charges in Visa Applications Scheme

Via DOJ, the following press statement dated May 7, 2012:

U.S. Embassy Employee Arrested on Conspiracy and Bribery Charges in Scheme Involving Visa Applications
– Defendant Worked at Embassy in Venezuela –

WASHINGTON – A visa assistant for the United States Embassy in Caracas, Venezuela, has been arrested on federal charges stemming from a scheme in which he allegedly accepted payments to aid people in facilitating visa applications, U.S. Attorney Ronald C. Machen Jr. and Scott Bultrowicz, Director of the U.S. State Department’s Diplomatic Security Service, announced today.

Christian Adolfo Paredes Uzcategui, 43, of Caracas, Venezuela, was arrested May 4, 2012, in Washington, D.C., on one charge of conspiracy and two charges of bribery. He appeared today in the U.S. District Court for the District of Columbia. He pled not guilty and remains in custody pending a hearing on May 21, 2012. If convicted, the defendant could face up to five years in prison for the conspiracy charge and between two and 15 years for the bribery charges.

According to the charging documents, Paredes has been employed at the Embassy in Caracas since May 1997 and most recently worked in the Embassy’s Consular Section. As a visa assistant, he had access to Embassy databases and assisted in the processing of visa applications submitted by foreign nationals seeking entry into the United States.

Between March 2011 and January 2012, according to the charging papers, Paredes allegedly conspired with another individual to obtain illegal payments in exchange for facilitating applications for United States non-immigrant visas. The charging documents state that Paredes received more than $10,000 from the other individual, who was working with people who previously had been denied visas.

The filing of a criminal charge is merely an allegation that defendants have committed a violation of criminal law and is not evidence of guilt. Every defendant is presumed innocent until, and unless, proven guilty in a court of law.
This case is being investigated by the State Department’s Diplomatic Security Service and is being prosecuted by Special Assistant U.S. Attorney David Mudd of the U.S. Attorney’s Office for the District of Columbia.

The original statement is here.

This report only says that the Foreign Service National employee (also known as LES or Locally Employed Staff) was arrested in Washington, D.C. Since Mr. Paredes is habitually a resident of Caracas, Venezuela, one has to wonder what he was doing in Washington, D.C. Of course, he could have been in the district on a personal trip, but why would he visit Washington, D.C. instead of say, Orlando, New York or Los Angeles.  Unless, he was in the district to attend a training course at FSI. Which was how, Jordanian national, Osama Esam Saleem Ayesh of US Embassy in Baghdad was charged with Theft of Public Funds and Conflict of Interest. That one was actually arrested as he got off the plane in Dulles on his way to attend a State Department training course in Arlington, Virginia.

Domani Spero