FSGB Annual Report 2018: Judicial Actions Involving Board Rulings

 

The following is excerpted from the Foreign Service Grievance Board Annual Report 2018. This is a good time to remind folks that while names/posts and identifying details are typically redacted from the Record of Proceedings (ROPs) routinely posted in the publicly available website fsgb.gov, once the case is filed in federal court, the records are usually publicly accessible and are unredacted (unless the case is sealed).

As described in last year’s report, USAID OIG had recommended that the grievant in FSGB Case No. 2012-057 be separated for cause. After two hearings, the Board approved the agency’s decision. The grievant appealed to the U.S. District Court for the District of Columbia. In a decision issued October 12, 2018, the court upheld the Board’s decision on cross-motions for summary judgment. The grievant has appealed to the U.S. Court of Appeals for the D.C. Circuit, challenging the District Court’s and Board’s construction of section 7(b) of the IG Act, which protects the confidentiality of employee informants.

In FSGB Case No. 2014-018, the grievant 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; under Department regulations, estates are not entitled to waivers. The Board concurred and grievant appealed. In a decision issued January 19, 2018, the D.C. district court found that the regulation denying waivers to estates was valid, but that the FSGB 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 for the Department and the Board to decide the request for the waiver on its merits. The waiver request is currently pending with the Department.

The grievant in FSGB Case No. 2015-016 filed a complaint in the U.S. District Court for the District of Columbia in 2017 against the Department and his former rater and reviewer requesting monetary damages related to the Board’s denial of his grievance. He had contested two EERs and a low ranking. The district court dismissed the complaint as untimely in a decision issued March 30, 2018. The U.S. Court of Appeals for the District of Columbia Circuit affirmed that decision on December 28, 2018.

The grievant in FSGB Case No. 2013-005 contended that he was deprived of certain benefits, such as promotion consideration, during a five-year assignment to an international organization. The Department found him ineligible for the benefits because his assignment to the organization was effected through a “separation and transfer” agreement, rather than a “detail.” The Board affirmed the Department’s decision and the United States District Court for the District of Colombia upheld that decision on appeal in a decision issued in 2016. The grievant had also appealed the Board’s decision in a second, related, case, FSGB Case No 2014-024, in which he had claimed certain benefits based upon his separation and transfer and subsequent reemployment with the Department. The Board dismissed his second grievance on the grounds of claims preclusion. In a decision issued March 14, 2018, the district court concluded that the Board’s decision was neither arbitrary and capricious nor contrary to law and dismissed his claims. The grievant appealed both decisions to the United States Court of Appeals for the District of Columbia Circuit, and that matter remains pending.

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 with the Department challenging her transfer on several bases. The Department denied the grievance, and the grievant appealed to the Board. The Board denied all of grievant’s claims. It further found that, since no statute or regulation had been violated, it lacked jurisdiction to overturn an assignment decision. The grievant appealed the decision to the U.S. District Court for the District of the Virgin Islands, St. Croix Division. In a decision issued September 24, 2018, the court affirmed the Board’s decision.

Decisions were issued this year in two other cases filed by the same grievant, stemming from the same sets of circumstances but not involving appeals of Department or Board grievances. The grievant filed a case under the Equal Pay Act of 1963 in the U.S. Court of Federal Claims alleging gender-based discrimination in pay and benefits. She claimed that the Department discriminated against her by paying her less and providing her with fewer benefits than a similarly-situated male employee. The court initially dismissed the case, finding that it lacked jurisdiction because the same appeal was pending in another court at the time she filed. However, that decision was overturned by the circuit court and the case was remanded to the Court of Claims. The grievant also filed two identical complaints in the U.S. District Court for the District of the Virgin Islands, St. Croix Division, alleging discrimination and retaliation by the Department under the Age Discrimination in Employment Act. In both cases, the court dismissed all but one of the claims. The grievant also filed a complaint in the U.S. District Court for the District of Columbia alleging nearly identical discrimination and retaliation by the Department under Title VII of the Civil Rights Act of 1964. Therefore, the U.S. District Court for the District of Columbia has stayed its proceedings pending a decision in the U.S. District Court for the District of the Virgin Islands case.

An appeal of the Board’s 2017 decision by the State Department and USAID/OIG in another long-running case remains pending in the D.C. District Court following briefing of crossmotions for summary judgment in Civil Action No. 18-cv-41 (KBJ). As described in previous annual reports, the grievant in FSGB Case No. 2013-031 contested the 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. In 2014, the Board initially upheld the agency’s decision. On grievant’s appeal, the district court in Civil Action No. 14-cv-1492 (KBJ) vacated the Board’s decision and remanded the case to the Board for further review. On remand, the Board in FSGB Case No. 2013-031R and No. 2016-030 issued a decision granting the grievant 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 (KBJ).

The 2015 Annual Report reported that the grievant filed an appeal of the Board’s decision in FSGB Case No. 2014-003 in Federal District Court, District of Colombia, claiming that the Department violated the Americans with Disabilities Act and Rehabilitation Act when it separated her. That appeal is still pending.

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Did USAID/OIG Retaliates Against an Auditor Alleging $120 Million Waste?

Posted: 12:18  am ET
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The Foreign Service Grievance Board (FSGB) wants to know.

In December, it granted the unnamed auditor’s (the charged employee) Motion for Additional Discovery. USAID/OIG was ordered to produce the investigation files of both Mr. REDACTED and Ms. Lisa Mcclendon, the Deputy Assistant IG for Investigations at USAID OIG. Below is a quick summary of this case extracted from the publicly available records of the FSGB:

REDACTED, was employed by the United States Agency for International Development in the Office of the Inspector General (USAID OIG, agency) as a financial auditor in REDACTED from 2009 to 2011. During that time, she was assigned, inter alia, to audit two USAID programs (a REDACTED HIV/AIDs program in 2010 and a REDACTED Family Planning/Contraceptives program in 2011). The charged employee stated that she was prepared to make negative findings about both programs, alleging a waste of $120 million and $100 thousand dollars in each program, respectively. The OIG responded that the employee’s audit manager,REDACTED, and the Regional Inspector General, REDACTED, overruled her negative findings on grounds that they were erroneous and/or did not need to be included in the audit reports.

On June 9, 2011, an anonymous or confidential complaint was delivered to the REDACTED USAID OIG office, stating that the charged employee was submitting partially false vouchers for two-way education transportation reimbursement, because her husband was driving the children to school in the mornings. REDACTED, an investigator in REDACTED received the complaint and after consulting with an Assistant Special Agent in Charge in Washington, D.C., REDACTED, arranged for a Regional Security Officer (RSO) to follow Mr. REDACTED in the mornings to confirm that he was driving the children to school. The investigator also requested copies of the education transportation vouchers that showed that Ms. REDACTED had requested reimbursement for the cost of transporting the children to and from school.

Several weeks later, Lisa McClennon, the Deputy Assistant IG for Investigations, traveled to REDACTED allegedly for a routine site visit. When she arrived and reviewed the pending investigations, she testified that she concluded that REDACTED investigation “had not progressed.”2 She took over the investigation, interviewed more than a dozen witnesses and requested a large number of financial documents that Ms. REDACTED had submitted for reimbursement. Ms. McClennon stated that when she reviewed the documents and interviewed the witnesses, she concluded that the employee had submitted a number of false vouchers for reimbursement of educational travel expenses, a number of requests for cost of living allowance (COLA) payments to which she was allegedly not entitled, and a request for larger housing to which she was also allegedly not entitled.

(Note: WHOA! — requesting larger housing is against the rules? Isn’t that for the Housing Board to decide on entitlement? Active link and emphasis added above).

Ms. McClennon reported her findings to Mr. Carroll in Washington. He ordered Ms. REDACTED immediate curtailment, despite the fact that at that time she was away from post with her family. In addition, Mr. Carroll proposed to separate Ms. REDACTED from the Service for cause. After reviewing written and oral replies from the charged employee, Mr. Carroll recommended in a letter, dated August 3, 2012, that the employee be separated for cause.3  Ms. REDACTED responded to the recommendation by arguing that the investigation and the resultant charges were retaliatory based on her status as a whistleblower when she attempted to report negative findings in the REDACTED and REDACTED audits.
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Before the Board was able to issue a final order,5 however, the employee filed a motion on November 14, 2014, advising the Board that Mr. Carroll had withdrawn his name from consideration for the position of IG and the President had formally withdrawn his name from consideration by Congress on November 12, 2014.6 The motion sought leave to file a supplemental pleading and to reopen discovery based on newspaper articles that reported that  Mr. Carroll was accused by OIG auditors (not including Ms. REDACTED of putting pressure on them to modify audit reports in order to delete negative findings about USAID. In addition, the charged employee requested the opportunity to depose Mssrs.REDACTED  and REDACTED.

The footnotes:

  • The Board initially came to the conclusion that Mr. Carroll did not have authority to prosecute this matter because his term as Acting IG expired before he recommended Ms. REDACTED for separation. The case was then dismissed. However, in 2013, Mr. Carroll was nominated to be the IG for USAID. Thus, he again became the Acting IG, pursuant to the Federal Vacancy Reform Act (FVRA) of 1998, 5 U.S.C. § 3345 et seq. As Acting IG, Mr. Carroll ratified his earlier recommendation to separate Ms. REDACTED for cause and the grievance appeal was reinstated.

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We Meant Well, Afghanistan Edition: Ghost Students, Ghost Teachers, Ghost Schools, Ugh!

Posted: 1:16 am  PDT
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Excerpt:

Over and over, the United States has touted education — for which it has spent more than $1 billion — as one of its premier successes in Afghanistan, a signature achievement that helped win over ordinary Afghans and dissuade a future generation of Taliban recruits. As the American mission faltered, U.S. officials repeatedly trumpeted impressive statistics — the number of schools built, girls enrolled, textbooks distributed, teachers trained, and dollars spent — to help justify the 13 years and more than 2,000 Americans killed since the United States invaded.

But a BuzzFeed News investigation — the first comprehensive journalistic reckoning, based on visits to schools across the country, internal U.S. and Afghan databases and documents, and more than 150 interviews — has found those claims to be massively exaggerated, riddled with ghost schools, teachers, and students that exist only on paper. The American effort to educate Afghanistan’s children was hollowed out by corruption and by short-term political and military goals that, time and again, took precedence over building a viable school system. And the U.S. government has known for years that it has been peddling hype.
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USAID program reports obtained by BuzzFeed News indicate the agency knew as far back as 2006 that enrollment figures were inflated, but American officials continued to cite them to Congress and the American public.

As for schools it actually constructed, USAID claimed for years that it had built or refurbished more than 680, a figure Hillary Clinton cited to Congress in 2010 when she was secretary of state. By 2014, that number had dropped to “more than 605.” After months of pressing for an exact figure, the agency told BuzzFeed News the number was 563, a drop of at least 117 schools from what it had long claimed.
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Last week, we were looking for clinics.

What’s next … ghost soldiers? Oops, that’s already an old story?

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Dear USAID OIG — That Nonprofit Contractor Mess Really Needs a Fact Sheet

Posted: 1:23  am EDT
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We’ve used the USAID OIG website but it does not have a smart nor responsive search function. We wanted to know how many inspections, audits, whatev reports the Office of the Inspector General at USAID did on IRD over the years.  If they were rigorous in their oversight and, if USAID and the State Department did anything about it. That is an important component to this story.  And if that is true, we wanted to see just how rigorous is the OIG’s oversight based on the documents it put out through the years, because how else can we tell but by the number and quality of their output?

We sent a direct message to USAID OIG via Twitter and we got a response back:

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For specific inquiries, please contact our office directly http://oig.usaid.gov/content/contact-usaid-oig

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You click on that link and you’re told that “for media or general information inquiries, contact the OIG’s Immediate Office by mail, telephone, or fax. Whoa!  The Immediate Office, apparently, is not immediate enough.

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Late last year, following a Washington Post report on a USAID program in Pakistan, USAID OIG released (pdf) a statement with the following:

OIG is committed to providing products and information that are responsive to the needs of external customers and stakeholders. In responding to questions posed by Members of Congress and congressional staff, OIG has always endeavored to provide complete and accurate information based on the documentation and information available to us.

This is USAID’s largest nonprofit contractor.  According to WaPo, USAID suspended IRD this past January from receiving any more federal work. The suspension came in the wake of allegations of misspending highlighted in a Post investigation in May 2014.  USAID told the Post that they are cracking down on contractors who misspend tax money.

Hookay. So let’s start with finding out what type of oversight USAID OIG provided on IRD contracts since 2006. This is one time when those USAID OIG Fact Sheets would really be helpful.

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Related items:

USAID Suspends Big Contractor IRD: What Took So Long? (NonProfit Quarterly)

Doing well by doing good: The high price of working in war zones (WaPo, May 2014)

 

Ex-USAID/OIG Pakistan: Finding fully developed for final report, whatchatalkinbout?

— Domani Spero
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We previously blogged recent items about USAID (see below):

In response to WaPo’s Oct. 23 article “USAID watchdog said to alter reports,” USAID/OIG has released a two-page statement dated October 24 citing its “extensive track record of providing independent, robust oversight.” It has tweeted that October 24 statement multiple times since it was first linked to on Twitter on October 27.

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Yesterday, WaPo published a letter to the editor from Joseph Farinellaa senior FSO who was USAID/OIG director in Pakistan:

The Oct. 23 front-page article “USAID watchdog said to alter reports” cited a Sept. 30, 2012, inspector general’s report on an audit of a U.S. Agency for International Development assistance program in Pakistan. I was the inspector general director in Pakistan whose office conducted the audit. The article cited a draft audit finding placed in a confidential “management letter” rather than in the final published report. The inspector general’s chief of staff said that this was done because our work was not supported by evidence and more time was needed to develop information for a final report.

I recently retired as a senior Foreign Service officer with more than 40 years of worldwide audit experience in several organizations. Our finding on the program not operating efficiently and effectively was fully developed for inclusion in the final report. We provided examples of funds not used for main program goals, why this happened and the negative effect on the program.

Instead of a fully developed finding with recommendations in a published audit report, information was provided to the mission director in a letter. Sen. Tom Coburn (R-Okla.) said it all: “That’s ridiculous. The finding shouldn’t have been removed.”

Okay, maybe the USAID/OIG or his chief of staff would like to take a stab at this again?

Once more with feelings.

It seems to us that there is an easy remedy here for USAID/OIG if it really wishes to put these allegations to rest.

  • First, release all the draft audit reports as a companion to each of the final reports that are the subject of these allegations. It will give us, the paying public, a way to gauge just how much sanitation work were or were not done with these reports.
  • Second, USAID/OIG can release all the confidential “management letters” or “management alerts” it issued to USAID management, and all follow-up actions.  The October 24, 2014 USAID/OIG statement  says that “OIG’s current policy and practice is to post all management letters on its public Web site. This policy has been applied to management letters issued from April 2014 forward.” Okay, but that’s not any help with these allegations as there’s no way to tell how many “management letters” have actually been issued by USAID/OIG previous to April 2014. The allegation is that audit findings were placed on management letters that are not accessible to the public. So let’s see those management letters online and see which audit findings were not supported by evidence.

These allegations go to the heart of USAID/OIG’s mandate as an independent overseer of the people’s money.  Here now, we have an ex-auditor for a specific program publicly contradicting USAID/OIG’s official spin, not to mention the multiple whistleblowers who also came forward. Sorry, but a two-page statement touting the office’s “independent and robust oversight” will not be good enough to shut this down.

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USAID’s undercover Latin youth — whose brainchild is this, pray tell (video)

— Domani Spero
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Read more here. Documents about this program is at http://apne.ws/UxJ05x.

Whose brainchild is this, pray tell.

Alan Gross, the  65-year-old American citizen mentioned in this article has been imprisoned in Cuba since 2009. His family has mounted a petition demanding Mr. Gross’ “immediate release” and  that “the Cuban and U.S. governments sit down and resolve Alan’s case.”

This morning, USAID released a statement about what it calls, the AP’s “sensational claims,”excerpt below:

Congress funds democracy programming in Cuba to empower Cubans to access more information and strengthen civil society. USAID makes information about its Cuba programs available publicly at foreignassistance.gov. This work is not secret, it is not covert, nor is it undercover. Instead, it is important to our mission to support universal values, end extreme poverty and promote resilient, democratic societies. Chief among those universal values are the right to speak freely, assemble and associate without fear, and freely elect political leaders. Sadly, the Cuban people and many others in the global community continue to be denied these basic rights.

One paragraph in the article captures the purpose of these and many civil society programs, which is to empower citizens to “tackle a community or social problem, win a ‘small victory’ and ultimately realize that they could be the masters of their own destiny.” But the story then goes on to make sensational claims against aid workers for supporting civil society programs and striving to give voice to these democratic aspirations. This is wrong.

USAID remains committed to balancing the realities of working in closed societies–particularly in places where we do not have a USAID mission and governments are hostile to U.S. assistance–with our commitment to transparency, and we continuously balance our commitment to transparency with the need for discretion in repressive environments. In the end, USAID’s goal is to continue to support democracy, governance and human rights activities in multiple settings, while providing the maximum transparency possible given the specific circumstances.

A couple of items from that USAID statement: 1)   “the Cuban people and many others in the global community,” does that mean this happened in Cuba and elsewhere?; 2) “with our commitment to transparency” — USAID’s Cuba programs data available publicly at foreignassistance.gov only covers FY2013 and 2014 and not the years covered by the AP report. USAID also would not tell the AP how much the Costa Rica-based program cost.

These young “aid workers” from Venezuela, Costa Rica and Peru sent to Cuba could have been arrested and jailed for 10 years for the work they did for USAID, and the agency would have been able to claim that these are not USG employees.  The US has not been able to effect the release of USAID contractor Alan Gross, would it be any more successful intervening for the release of foreign nationals who are not?  Also, the notion that you can run democracy promotion operations like this in certain parts of the world and that it will not have a dangerous blowback against USAID employees advancing development work in other parts of the world, is frankly, lunacy.

Does USAID have a scenario planned for what happens after a ‘Cuban Spring’unfolds in Cuba? Is it publicly available at fomentingchange.gov?

Just a reminder, the nominee for USAID OIG, in case you’re wondering has been waiting for Senate confirmation since July 2013 (see Officially In: Michael G. Carroll – From Deputy IG to USAID/OIG).

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Still No Junkyard Dog? Senator Cruz Warns He’ll Place a Hold on All State Dept Nominations

— By Domani Spero
U.S. Senator Ted Cruz (R-TX) today released the following statement regarding President Obama’s failure to nominate an Inspector General (IG) for the U.S. Department of State. IGs are congressionally mandated officers who provide independent agency oversight.

The President’s failure to nominate a State Department Inspector General since taking office in 2009 is unacceptable. The position has been vacant for almost 2,000 days. This is a crucial oversight position and should be a priority for an agency facing substantial management challenges.

While several federal agencies are operating without a Senate-confirmed Inspector General, only the State Department has been without a credible and independent Inspector General for so long.

During the last five years, there have been deadly attacks on U.S. diplomatic personnel in Libya, mismanagement of security contractors at our embassy in Afghanistan, and hundreds of millions of U.S. taxpayer dollars wasted for police training in Iraq. These issues highlight the State Department’s need for an Inspector General as soon as possible.

Until the President acts, I have notified Senate Majority Leader Harry Reid and Minority Leader Mitch McConnell that I will place a hold on all State Department nominations.

According to the Project on Government Oversight, the State Department’s Inspector General  has been vacant since January 16, 2008.  At 1,988 days and counting, the vacancy has been the longest unfilled position among the government watchdogs.  After over 600 days of vacancy, President Obama on June 10, 2013 did nominate Michael G. Carroll as the IG for USAID.

State Department sources apparently told The Daily Beast that outgoing Ambassador to Syria Robert Ford might be in contention for the IG job.  We don’t think that’s even permissible because he is still an active FS officer. And if he retires and is appointed IG, he would be in the same status as the current Acting IG Harold Geisel who is a retired FSO.  Ambassador Geisel, by the way, agrees that a Foreign Service officer cannot be an IG.  Below is an excerpt from his oral history interview.  The Sherman he refers to here is Sherman Funk who was named Inspector General for the State Department in 1987.

Q: The idea being to put somebody in who was not Foreign Service.

GEISEL: That is correct.

Q: Sort of, as I think they called it, a junkyard dog.

GEISEL: That’s what Sherman called it. He said his job was to be a junkyard dog. Now, the inspector general act did not require a non-Foreign Service type that was Jesse Helms who attached some legislation to something else that said a Foreign Service officer cannot be the IG. And after having served as the acting IG, I think that was one of the wisest things that Jesse Helms ever put into legislation because it’s impossible for a Foreign Service type who’s an honorable person to be IG when stuff is coming in over the transom about his friends.

Q: Yes.

GEISEL: I had to disqualify myself a few times. I would sign papers, my counsel would say you know this person, you’re going to sign this but you’re just going to see the person’s name but we’re not briefing you on this. Then I would be out of it and I would designate someone else to receive the work and to brief the deputy secretary about it. It didn’t happen too often but it happened.

Yup, the State Department needs a junkyard dog.  It needed that dog yesterday.

The State Department’s Patrick Ventrell says that “the Secretary and the President have identified an excellent candidate for Inspector General for the State Department, and we look forward to the nomination becoming public after the vetting and paperwork process is complete.”

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