Beberman v. Blinken

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JULIE BEBERMAN, Plaintiff, v. ANTONY BLINKEN in his official capacity as Secretary of State, Defendant.

Civil Action No. 21-3082 (TJK)

United States District Court, District of Columbia

December 11, 2024

MEMORANDUM OPINION

TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE

Shortly after Julie Beberman began adjudicating visa applications in Venezuela for the U.S. Foreign Service, her supervisor noticed that she had not complied with required procedures when approving several applications. The supervisor eventually discovered performance problems that caused him to revoke Beberman's access to the consular systems. Over a year later, Beberman successfully applied for a position as a political officer at the embassy in Malabo, Equatorial Guinea. The job description included back-up consular duties meaning that Beberman would probably adjudicate visa applications from time to time while fulfilling her responsibilities as a political officer. But after realizing that Beberman's access to the consular systems had been revoked for deficient performance, members of the Foreign Service's Consular Affairs team refused to renew it. The embassy thus removed Beberman's consular duties, but she still served as a political officer in Malabo.

Beberman filed a grievance against the Department of State based on the elimination of those duties. She argued that she ended up in a new position once the back-up consular responsibilities were removed, so the agency's internal policies required that an assignment panel review and approve the new assignment. Beberman also contended that eliminating these duties was retaliation for other grievances she had filed. The Foreign Service Grievance Board rejected these arguments, leading Beberman to bring this suit that challenges the Board's decision as arbitrary, capricious, and contrary to law. But the Board's interpretation of the policies governing the assignment process-specifically, that assignment panels play a role in the assignment of an employee to a position, not the adjustment of job responsibilities after that assignment-was correct. Thus, its denial of Beberman's appeal was not unlawful for that reason. And the Board reasonably determined that the Department had a legitimate non-pretextual reason for pointing out Beber-man's prior revocation of consular access, refusing to renew that access, and removing her backup consular duties as a result. Finally, Beberman's scattershot arguments challenging other orders by the Board are meritless. So the Court will deny her motion for summary judgment and grant the Department's cross-motion.

I. Background

A. Legal Background

Within the Department of State (“the Department”), the U.S. Foreign Service “works through its Foreign Service Officers to advocate American foreign policy, protect American citizens, and promote American interests throughout the world.” Shea v. Kerry, 796 F.3d 42, 46 (D.C. Cir. 2015) (internal quotation marks and citation omitted). These officers perform a range of “traditional diplomatic responsibilities, including trade promotion, political and economic reporting, and consular services and protection.” Id. (internal quotation marks and citation omitted). They do so first “under a limited appointment as a career candidate for a trial period” of five years at most. 22 U.S.C. § 3946(a); 22 C.F.R. § 11.20(a)(3). During the trial period, the Secretary of State decides whether to recommend a candidate for a career appointment and tenure in the Foreign Service. § 3946(a)(2). That tenure decision turns on “the candidate's demonstrated potential . . . to serve effectively as a Foreign Service Officer.” 3 Foreign Affairs Manual (“the Manual” or “FAM”) 2245.1. Those not recommended for tenure are “separated from the Service,” usually when their limited appointment expires. Id.

To “govern” its “operations” and those of the Foreign Service, the Department has promulgated the Foreign Affairs Manual and Foreign Affairs Handbook (“the Handbook” or “FAH”), which together constitute a “single, comprehensive, and authoritative source for the Department's organization structures, policies, and procedures.” See U.S. Dep't of State, Foreign Affairs Manual: Public, https://perma.cc/RP8P-S6VZ (last visited Dec. 10, 2024). Several provisions address how Foreign Service employees receive “assignments”-that is, “tour[s] of duty of six months or longer to a Foreign Service . . . position.” 3 FAH-1 H-2421. Sometimes employees receive “directed assignments” to certain positions. The Foreign Service's Director General may assign employees in this way “at any time . . . on the basis of Service need.” 3 FAH-1 H-2422. Typically, however, a Foreign Service officer candidate's “initial two assignments” are “identif[ied]” by career development officers, while “subsequent assignments” normally happen through participation “in the open assignments bidding process.” 3 FAM 2242.1; see also 3 FAH-1 H-2425.8-6(b).

This open-assignment system “is primarily intended to fulfill Service need.” 3 FAH-1 H-2425.1(b). Participating employees begin the process by submitting bids reflecting their preferences to an electronic system. 3 FAH-1 H-2425.2-2(a). This bidding system is critical; “[a] position may be assigned only after it has been advertised for at least two weeks in the . . . system.” 3 FAH-1 H-2425.4(e). After the system collects bids, “[a]ssignment panels . . . review and approve assignments of employees to all [Foreign Service] positions.” 3 FAH-1 H-2425.3-1(a). If either the employee or the relevant bureau is unhappy with a panel decision, they may appeal it to the Director General. 3 FAH-1 H-2425.3-2(a)-(b). Employees who fail to receive an assignment through the open-assignment system “may be directed to an assignment by the” Director General.

3 FAH-1 H-2425.6(b).

B. Factual Background

Beberman began working for the Department in early 2010. ECF No. 37-4 at 2. Almost two years later, she arrived in Caracas, Venezuela to serve as a vice consular officer. Id. An “essential function of the consular position” is “[b]eing able to identify individuals designated as ineligible to enter the United States” when assessing visa applications. ECF No. 37-1 at 85. For that reason, “[w]henever a consular officer issues a visa for admission,” the officer must “certify that a check of the automated visa lookout system”-i.e., a system containing information about the excludability of applicants-“has been made, and that there is no basis under such system or list for the exclusion of such applicant.” 9 FAM 307.3-1(b)(1); see also Pub. L. 103-236, § 140(b), (c). The failure to follow procedures required by the results of a lookout-system check must be “considered as a serious negative factor in . . . performance evaluation[s].” 9 FAM 307.3-1(b)(2).

Beberman's supervisors eventually noticed problems with her issuance of visas. In a November 2012 performance evaluation, the Caracas visa chief explained that Beberman had “an extremely low refusal rate” for visas that was “less than one-third that of the officer with the next-lowest refusal rate.” ECF No. 37-2 at 7. He also discovered that Beberman had issued a visa that July despite the applicant being “a direct match” to a “hit” in a lookout system listing individuals who are temporarily barred from receiving visas. Id. At a counseling session, Beberman insisted “that she was correct in issuing the visa.” Id. After further review, the visa chief “discovered 15 nonimmigrant visa cases” in which Beberman issued visas to “applicant[s] who had been refused” at least once before “without making any notation . . . that she was aware of the prior refusal(s).” Id. Concerns about those decisions, coupled with additional “potential Visa Lookout Accountability (VLA) violations,” led the visa chief to remove Beberman's access to the consular systems- access that is essential to adjudicating visas. Id. The reviewing officer described this performance evaluation as “a sober, accurate account of what took place” and “supported” the decision to “in-validate[] [Beberman's] consular systems login.” Id. at 9. Soon after, Beberman cut short her Caracas assignment before starting work as “the deputy multilateral affairs and African Union desk officer” in Washington, D.C. ECF No. 37-4 at 2.

In 2013, Beberman bid on and was offered a position as a “Political Officer” at the embassy in Malabo, Equatorial Guinea. ECF No. 37-4 at 9, 12. The description of this role listed a host of duties that the incumbent performed and that, presumably, the replacement would too. For example, the incumbent had to manage “the combined political and economic section,” the “Ambassador's Self-Help program,” and the “Democracy and Human Rights Fund.” Id. at 9. He also supervised two assistants, researched and prepared reports on human rights and religious freedom, drafted “spot reports and analytical cables,” and worked as the “control officer for most visitors.” Id. “In addition to” all these political duties, “the incumbent serve[d] as back-up to the lone con-sular/public diplomacy officer.” Id. Beberman accepted the offer in November 2013, see id. at 14, but the embassy did not expect her to arrive in Malabo until around December 2014, see id. at 39.

Apart from this assignment, Beberman was also dealing with the tenure process and the ramifications of her performance problems. In June 2013, the Department proposed a two-day suspension for four specific times when Beberman issued visas without complying with required procedures. ECF No. 37-1 at 83-86. The Department eventually reduced that proposed suspension to one day, but it maintained that “the charge and specifications of ‘Violation of Visa Lookout Accountability . . . Requirements' is supported...