Snapshot: @StateDept Workforce Distribution by Employment Category (February 2019)

Posted:12:52 am EST
Updated: 10:08 pm PST with link to full HR fact sheet

 

Via state.gov:

The Department relies on Locally Employed (LE) staff to support its global mission. LE Staff, which includes contractors overseas, accounts for 58 percent of the workforce. The Department’s American Government workforce, which includes career full-time FS and CS employees as well as temporary employees, constitutes approximately 31 percent of the workforce. The remaining 11 percent is composed of domestic contractors. Over the last few years, the workforce distribution has remained about the same. The State Department indicates that it employs a workforce of over 80,000 employees including contractors. 

 

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Snapshot: State Department Workforce Composition By Employment Category – 2016

Posted: 12:13 am ET
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Via state.gov:

The State Department says that it employs a workforce of over 80,000 employees. The figure below shows the composition of the 2016 workforce by employment category. Total number of agency employees excluding contractors: 74,721 (FS: 13,948 includes Generalist – 8,196; Specialist – 5,752; Civil Service at 11,037) and Locally Employed Staff at 49,736 (includes Foreign Service Nationals (FSNs)and Personal Services Agreements/Contracts). We have not been able to locate a good number for contractors.

In April 2016, there were 11,861 adult family members overseas, of which 29% or 3,436 FS family members were employed by the USG at missions overseas.

via state.gov

via state.gov

 

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State Department Dedicates Diplomatic Security (DS) Memorial

Posted: 12:06 am EDT
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The Diplomatic Security (DS) Memorial was dedicated on September 18, 2015, to honor the many individuals who have given their lives to support the mission of the U.S. Department of State’s Bureau of Diplomatic Security. Assistant Secretary of State for Diplomatic Security Gregory B. Starr hosted the event with Antony J. Blinken, Deputy Secretary of State; Lt. Gen. Ronald Bailey, Deputy Commandant of the United States Marine Corps, Plans, Policies, and Operations; and Bill Miller, Principal Deputy Assistant Secretary and Director of the Diplomatic Security Service, in attendance. See D/Secretary Blinken’s remarks here.

Before the installation of the Diplomatic Security Memorial, DS was the only federal law enforcement agency without its own memorial. Many of those who gave their lives in service to DS were not eligible for inclusion on the American Foreign Service Association (AFSA) Memorial, which primarily honors members of the Foreign Service who died while serving abroad.

On the date of its unveiling, the DS Memorial contained the names of 137 individuals from diverse backgrounds and countries throughout the world. They include:

27 U.S. Government Personnel

  • 4 Diplomatic Security Service Special Agents
  • 6 Diplomatic Couriers
  • 12 U.S. Military—Marine Security Guards
  • 5 Other U.S. Military—Embassy Security Operations

36 Private Security Contractors

74 Local Security Personnel

  • 31 Local Guard Force
  • 31 Local Law Enforcement
  • 6 Foreign Service Nationals
  • 6 Locally Employed Staff

The DS Memorial consists of the 1) DS Memorial Wall–A Visual Tribute, located inside the main lobby of Diplomatic Security headquarters in Rosslyn, Virginia; 2) Memorial Kiosk, installed with the DS Memorial Wall, the kiosk displays information about Diplomatic Security and its personnel who lost their lives in the line of duty. The information is searchable by name, year of death, country of death, and job position at time of death; 3) Memorial Website at (www.dsmemorial.state.gov) with the names of the fallen personnel hosted in a special portion of the Diplomatic Security website, the online DS Memorial displays all names of the fallen and provides a search tool for locating individuals.

via state.gov/ds

via state.gov/ds

 

The memorial goes back to 1943 and includes James N. Wright, a Diplomatic Courier who died on February 22, 1943,
in Lisbon, Portugal, in the line of duty in an airplane crash. Two years later, another Diplomatic Courier, Homer C. White, died on December 4, 1945, in Lagos, Nigeria, in the line of duty in an airplane crash.

The largest number of casualties is suffered by the local security personnel.  At least 31 local law enforcement personnel (working for the host government) were lost protecting USG facilities and personnel overseas. As many local guard force employed/contracted by the USG were also killed in the line of duty.  In 2014, Shyef, Moa’ath Farhan, a Yemeni Local Law Enforcement employee, died in Yemen, while protecting a checkpoint near U.S. Embassy Sanaa during a suicide attack. In fact, 7 of the 31 law enforcement personnel killed were all lost in Yemen.   That same year, Abdul Rahman, a locally employed staff was killed while performing his duties near the traffic circle at the main entrance to Kabul International Airport in Afghanistan. He was one of several individuals killed by a lone suicide bomber. In 2013, Mustafa Akarsu, a member of the local guard force was killed during a suicide attack at the U.S. Embassy in Turkey.  That same year, eight members of the local guard force died on September 13, during the attack on U.S. Consulate Herat in Afghanistan.

Note that this memorial only includes FSNs/locally employed staff who supported the mission of  the Bureau of Diplomatic Security (DS) and not all FSNs who lost their lives while working for the USG overseas.

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Snapshot: Breakdown of State Department Employees as of 6/30/2014

— Domani Spero
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via afsa.org

Click here to view pdf file

Click on image to view pdf file

 

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US Embassy Ottawa: Canadian Court Sets Aside FSN Sandra McDonald’s $240K Default Judgment For Now

— Domani Spero

Via Ottawa Citizen, a wrongful dismissal case filed by Sandra McDonald, a former Foreign Service National (local employee) of the U.S. Embassy in Ottawa.

Sandra McDonald, now in her early 60s, worked at the embassy for nearly 30 years as one of its locally engaged staff. She sued for wrongful dismissal after she was fired in early 2011 while on long-term disability with complex regional pain syndrome.

McDonald’s lawyer, Bijon Roy, said she was “very disappointed” with the judge’s decision and that it might force her to fight the case all over again.

In July 2012, Ontario Superior Court Justice Heidi Polowin issued a default judgment in McDonald’s favour after U.S. officials failed to file a statement of defence or contest the case in court. The embassy had been served notice of the case through Canada’s Department of Foreign Affairs and International Trade, and was kept informed of the matter on a regular basis. McDonald’s story also received high-profile coverage from Ottawa media, including the Citizen.

In court this week, embassy officials, seeking to overturn the default judgment, said they had “explicable and plausible” reasons for not having responded to McDonald’s lawsuit, and a “good defence” to be made against it. According to court documents, the Americans claimed that they’d “lost the documentation”, “could not open the email attachment”, that the documentation was “inadvertently directed to the wrong office at the State Department”, and that it was “not indexed correctly”.

Superior Court Justice Timothy Ray questioned how U.S. State Department officials could claim not to have been aware of McDonald’s default judgment. “Its embassy apparently failed to see the front page of the Ottawa Citizen (on) Sept. 11, 2012,” the judge commented.
[…]
Ray said he would set aside Polowin’s default judgment on conditions the embassy pay McDonald’s legal costs and put the $240,000 award in a court trust within the next 60 days.

Read in full: U.S. Embassy wins bid to set aside wrongful dismissal judgment.

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US Embassy Venezuela: Local Employee Miguel Cartaya Killed in Caracas

— Domani Spero

We posted recently about the US Embassy Caracas where three embassy officials were given 48 hours to leave the country (see Venezuela (Where Almost No One Has Toilet Paper) Kicks Out Three U.S. Diplomats for “Flaming” Student Protests).

The anti-government rallies has been roiling Venezuela for days with people expressing their grievances against high inflation, crime, and the shortages of staple goods such as toilet paper, milk, rice and cooking oil.  According to CNN, four anti-government protesters and one government supporter have died in clashes around the country. 

Amidst these chaos, local news reported yesterday that a former official of the Bolivarian National Police (BNP) who worked for the security office of the US Embassy in Caracas was killed at 4:30 in the morning during an attempted  robbery.

Local reports identified the employee as Miguel Angel Borges Cartaya, 39. He reportedly was  found at the bottom of a ravine with multiple gun shots wounds.

One report says that the victim was working escort duties at the American Embassy in Caracas.  Relatives cited in the report also said that the victim was leaving his house when he was attacked by several armed men who were after his belongings.  He was reportedly shot when he resisted.

The Regional Security Office’s 2013 Crime and Safety Report notes that violent crime is the greatest threat in Caracas, affecting local Venezuelans and foreigners alike.

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We are so sorry to hear this news.  This has been a tough couple of weeks for local embassy staff.  On February 12, we blogged about the death of an FSN working at USCG Peshawar (see USCG Peshawar Employee Faisal Saeed Killed in Pakistan).  On February 13, we posted about the arrest and detention of an FSN working at US Embassy Cairo (see  US Embassy Cairo FSN Ahmed Alaiba Detained Since 1/25–State Dept Still Seeking “Clarity”).

We have sent an inquiry to the US Embassy Caracas but received no response.

Our unofficial source in the country confirmed to us that Miguel Cartaya was an FSN, working at the Embassy as a security guard.  At this point, there apparently is no reason to believe the shooting is related to his work at the Embassy, but rather a sad fact of daily life in Caracas, which has one of the highest murder rates in Latin America. We will have a blog update if we learn more.

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State Dept on Embassy Workers Unionization: Yo! Could Put U.S. National Security at Risk

— By Domani Spero

Eric Katz via govexec.com: State Department Says Unionizing Its Foreign National Workers Would Threaten Security

The International Federation of Professional and Technical Engineers — a union housed within the AFL-CIO — reached out to the State Department about the possibility of unionizing more than 40,000 “locally employed” staff in foreign countries. State responded that it does not have the legal grounds to seek a collective bargaining arrangement with the employees.

Additionally, the State Department said it simply had no interest in seeking to unionize the employees.

“Such unionization at diplomatic and consular missions is fundamentally incompatible with the basic functions and operations of such missions,” Steven Polson, State’s chief labor-management negotiator, wrote in the letter.

He added unionization “could, frankly put our foreign relations and national security at risk.”  

According to govexec, Mr. Polson cites the potential “logistical nightmare” of collective bargaining with foreign nationals paid under 176 different local compensation plans. And apparently,  “labor laws in certain countries prohibit their citizens from maintaining union representation.”

The report also said that Mr. Polson “encouraged foreign national employees to join “[locally employed] staff associations,” which could “meet regularly with post management to discuss concerns and resolve issues” and declared the “department has no interest in pursuing this discussion further.”

n 2009, Eddy Olislaeger, a veteran FSN at the US Embassy in Brussels founded the International Foreign Service Association (IFSA). The group wrote to then Director General of the Foreign Service Nancy Powell (now current US Ambassador to India) seeking her help in “formalizing a working relationship between IFSA and the State Department.” The State Department declined IFSA’s request on the basis that it was an attempt to establish a union.

More on this issue from the FSNs perspectives see:

Last Friday, IFSA issued a statement expressing disappointment “by the State Department’s continued rejection of any form of social dialogue with the largest component of its workforce.” It calls Mr. Polson’s argument against unionization “humiliating to the thousands of loyal and dedicated LE staff, let alone the 12,000+ men and women who work in security positions all over the world protecting US diplomats, US citizens and embassy facilities.”   The statement also notes that “Locally employed staff work in a legal vacuum, a system of Catch-22 rules and regulations, a compensation plan that lacks transparency, the absence of a system of accountability for management and a corporate culture that is not conducive to openness.” It expresses its commitment on continuing “to seek a dialogue aimed at breaking down the inequities in our workplace.”  Read in full here.

The current number of local employees working at U.S. Embassies worldwide as of March 2013 is 45,576.  A 2007 State/OIG report noted that since 1998, far more local embassy employes have been killed in the performance of their duties than have American Foreign Service employees.  The report points out the need for the Department “to codify in one place and strengthen its commitment to LE staff.”  That report recommended not only the development of “a bill of rights for locally employed staff” but also the establishment of a “a locally employed staff ombudsman position.” Neither of those recommendations, as far as we know has been implemented by the State Department.

In 2008, State/OIG did an inspection of the compensation issues of local embassy staff.  A report it issued on April 30, 2009 (Review of Locally Employed Staff Compensation Issues (ISP-I-09-44) included the following:

The U.S. is falling behind in providing a competitive compensation package for LE staff that is commensurate with their experience, technical skills,and responsibilities. Office of the Inspector General (OIG) survey data show that the U.S. Government is implementing average salary increases that are approximately 60 percent of what could be termed “prevailing practice.”

U.S. missions worldwide told the OIG team of their concerns about the current LE staff compensation review process, including discontent with off-the-shelf salary survey data, lack of transparency in the process, disparities between the salary and budget cycles, the use of outmoded and cumbersome communication technology, and the lack of interagency involvement and decision making.

Here’s the funny part, please get ready to laugh.

Image via Wikimedia Commons by Saibo

Image via Wikimedia Commons by Saibo

The State Department through it’s HR office on Overseas Employment (HR/OE/CM) spends an extensive amount of time and energy  in the the local employee compensation reviews/surveys to determine prevailing practice.

That’s a largely wasted exercise since the Department and other agencies “cannot” fund the suggested locally employed embassy staff salary increases.

State/OIG noted then that “the current system is inappropriate and inefficient, does not meet the requirements of the FSA, cannot be justified or explained, and cannot be regarded as professional treatment of an irreplaceable, valued group of employees.”  The OIG team also found situations in which “embassies were losing staff to other employers, an occurrence often attributed to the inability of the Embassy to achieve pay parity with the local labor market.  Some missions found that it was difficult to replace employees who left to take other jobs, particularly in countries with low unemployment rates.”

That State/OIG report cited 27 missions which presented “compelling arguments that their lower grade employees fall short of minimal living standards.” These arguments included accounts of LE staff doing the following:

  • removing children from school
  • cutting back to one meal a day
  • sending children to sell water or little cakes or toiletries on the streets
  • foregoing prescription medication because they cannot afford the co-pay
  • resigning to move back to their hometown because they cannot afford to live in the post city
  • sending their families back to their home country because they cannot afford to live in the host country
  • the cost of rice for an average family equating to half the monthly wages of over 60 percent of the staff
  • employees depending on salary advances and defaulting on loans in order to cover basic expenses
  • grades 1 to 3 earning less than $1.00 per day
  • employees paying at least $250 a month for a single room apartment with a salary of $250 to $400 a month
  • up to 50 percent of salary being spent on groceries, and 40 percent on
  • utilities salaries falling short of official poverty levels

State/OIG has that in its report on local compensation issues. The report presumably was read by somebody with the appropriate pay grade at the State Department.  Read. Checked.

That’s from a four-year old report.  But we recently heard that in one European post, the bureau with the highest attrition rate for local employees, one post has not had a salary increase in about 10 years.

Look — the State Department collected $3.1 billion in consular fees in FY2012.   That large pie shows allocation to Resource Management for American Salaries at $433,508,000 and to the Foreign Service Institute-Consular Training, Conferences, and Workshops at $7,054,000.  We could not find allocation of any sort for local employees.  Despite the budget constraints, it’s not like the State Department is not pulling in shovels of money from its consular operation, because it is.  If you can allocate $430 million to the salaries of American employees, it is hard to understand why can’t you find a slice of that pie for the salary increase of local employees.

Is it that funds for local employees is not  a priority?  Is it that the State Department takes them for granted, after all, they chose to work for the USG? And, of course, will continue working for the State Department whether they get salary increases/pay parity or not.  Some decades ago, the USG also decided that local employees need not even be members of the Civil Service for retirement purposes.  This group of people cannot vote or contribute to U.S. social security.  Is it that they’re foreign nationals and Congress has no real interest in them?  There are 45,576 of them and aren’t they all just happy to have jobs working for Uncle Sam who takes care of them when he can?

Foreign Service Nationals are apparently the “sturdy backbone” that holds together our diplomatic missions overseas. And  because we treat them so well and all, there is absolutely no reason why they should ever need a union, or a bill of rights, or an ombudsman.  And if they get killed in the line of duty, well then …. they’d be lucky if they find a USG official to fundraise for their next of kin on his own time.

If this group of employees were a book, the following would be printed in bold on the dust jacket:

“FSNs provide more than services and corporate memory. They are the backbone of the Department and play an essential role in achieving U.S. foreign policy objectives. Their loyalty and dedication are legendary. Many FSNs have given their lives protecting U.S. embassies and employees.”

State Magazine (Official Magazine of the U.S. Department of State)

“Of approximately 40,000 FSNs employed worldwide by all U.S. agencies, 32,000—80 percent—work for the Department. Their knowledge, special skills and rich network of local con- tacts are priceless. They share our vision, our challenges, our risks and our burdens.”

Ambassador W. Robert Pearson (Director General of the Foreign Service, 2003-2006)

“I would like to say a special thank you to our 53,000 Locally Employed Staff serving around the world. These dedicated men and women perform many critical tasks and generously share their experience and wisdom with their American colleagues.

Ambassador Nancy Powell (Director General of the Foreign Service, 2009-2012)

“Consul generals come and go, ambassadors come and go, Secretaries come and go, but our locally employed staff really provides the continuity. You provide the memory bank of everything that went before, and we could not do this work without you as our colleagues working side by side every single day.”

Hillary Rodham Clinton (Secretary of State, 2009-2013)

“Americans who serve overseas are blessed to never serve alone. We rely on the support and the friendship and the wise counsel of our locally employed staff, and we trust our cause to their courage. Local employees around the world commit themselves to building strong and lasting relationships between their home countries and the United States, and they often serve for decades with loyalty and with devotion. You teach a steady stream of American diplomats who serve among you for a few years all about the values and virtues and beauties of your country and of the spirit of your people. You are the sturdy backbone that holds together the kind of mission that we are engaged in, and we are enormously grateful to you for that.”

John F. Kerry, Secretary of State, March 1, 2013

 

Perhaps what  Mr. chief labor-management negotiator failed to explain is if 45,576 local embassy employees were to unionize, they could potentially immobilize embassy operations in over 280 locations. In which case, every mission would have to implement a policy of “all-purpose duty,” as US Embassy Moscow did in 1986 whereby all embassy employees were expected to pick up all of the tasks previously handled by the Foreign Service Nationals, in addition to their official responsibilities.  In Moscow, the Ambassador spouse was not spared as her household staff was also pulled out and she had to double as hostess and cook.  In this scenario, even the most tedious tasks, such as washing embassy cars, shoveling snow, cutting grass, cleaning bathrooms, answering phones, printing visas, clearing goods through customs, etc. etc….will become the responsibility of the American diplomatic officials, in addition to their own duties and responsibilities.

We live in an interconnected world, more so now than five years ago.  The linkages already exist.  A time will come in the not too distant future when Mr. Polson’s “staff associations” will become one, whether the State Department choses to recognize it or not.

🙉

Photo of the Day: Ballistics-Resistance Glass vs. Enraged Mob

Via Political Violence Against Americans, 2011

May 1, 2011 –Tripoli, Libya |  “Libyan military personnel stormed the General Service Office (GSO) warehouse and drove trucks onto the warehouse compound and stole U.S.Government property. Members of the U.S. Embassy’s local guard force were forced to evacuate to adjacent properties. When the Libyan forces departed the GSO warehouse, other Libyans followed in their wake and looted the warehouse. The Ambassador’s and Deputy Chief of Mission’s residences were also stormed, damaged, and looted by members of the Libyan Revolutionary Guards.”

Screen Shot 2013-05-24

 

 

 

 

 

 

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