Colton v. Clinton: Expeditionary Diplomat Booted Off Career Ladder ...| Sep 21, 2009

In Vance v. Bradley , 440 U.S. 93 (1979), the question put forth before the Supreme Court was whether Section 632 of the Foreign Service Act of 1946 violated the Equal Protection component of the Due Process clause of the Fifth Amendment.  The Supremes reversed the lower court’s decision and sided with the government in an 8-1 decision. AFSA, the bargaining agent for the Foreign Service also filed an amicus curiae supporting the government’s position. That was was 30 years ago. About time the mandatory age retirement (MAR) is revisited.
It seems to me that if the State Department and the Foreign Service had allowed some flexibility here, this may not even be in court. The Director General of the Foreign Service is given authority to extend the tenure of any FSO subject to mandatory retirement. Given the gap in mid-level staffing in the Service, it can be argued that extending her tour for eight months beyond her 65th birthday would have been in the public interest. But even beyond the public interest, just allowing our diplomats to retire at the completion of their last tour, wherein they turn 65, would have been not only rational but also most human. It would have also allowed for an easier transition with people leaving at the conclusion of their assignments instead of chucking them out the airlock on the dot when they turn 65.
Bradley v. Vance: Revisiting Mandatory Age Retirement | Sep 23, 2009
Section 632 of the Foreign Service Act of 1946 required that members of the Foreign Service retirement system retire at 60. No mandatory retirement age was specified for employees covered by the Civil Service retirement system. Holbrook Bradley, a member of the Foreign Service retirement system, challenged the statute in United States District Court for the District of Columbia and prevailed. The government appealed to the Supreme Court and won.
Read this for quick summary on the majority and minority opinions from the Supreme Court.


Bradley v. Vance: The Yesterday You Worried About Tomorrow | Sep 29, 2009
A report dated May 2009 states that a January 2008 analysis by State’s Human Resources Bureau indicates that mid-level shortages continue. The report notes the public diplomacy cone has the highest mid-level deficit among the five generalist cones, and public diplomacy officers are being promoted through the mid-levels at higher rates than other cones. State officials expect it will take several years before the mid-level deficit is erased. 
The GAO report released this month on staffing at hardship posts says that “while new resources may enable State to partially address vacancies and the department has reduced its mid-level deficit since 2006, the remaining shortage of mid-level officers represents a continuing experience gap. State faced a 28 percent greater deficit at the FS-02 level than it did in 2006, with mid-level positions in the public diplomacy and consular cones continuing to experience the largest shortages of staff overall.”
Here I also wrote about the "wear and tear" of the Service, changing life expectancies and boomers sailing into the sunset.

Quickie: Too Old for Foreign Service Work?  | Oct 02, 2009
Steve Vogel's article in WaPo that quotes AFSA President Susan Johnson: "AFSA thinks that there are a number of sound reasons to consider raising the age of mandatory Foreign Service retirement beyond 65, including but not limited to the expertise many older employees possess that is badly needed, and a general trend towards entry into the Foreign Service somewhat later in life," Johnson said.  "It's important to note that only career Foreign Service officers are affected by the mandatory retirement age -- not political ambassadorial appointees.
Colton v. Clinton: Amended Complaint Alleges Retaliation | Nov 05, 2009
The amended complaint alleges that the State Department retaliated against Dr. Colton by denying her a recent promotion because she had sued the State Department for age discrimination and other acts of retaliation.

Who wants well-aged diplomats well-refined? | Feb 01, 2010
The Government in its Motion to Dismiss says: "It should come as no surprise that the range of assignments available to plaintiff (or any other foreign service officer) may diminish as she approaches the mandatory retirement age of 65 – the most obvious example being an increasingly limited range of assignment opportunities in positions that would require her to serve past her 65th birthday."

Back Then: Exuberant Elizabeth Colton | Diplopundit | Feb 05, 2010
The State Department's in house mag covered some Foreign Service newcomers including Dr. Colton:  "Remember that group of Iraqi soldiers who surrendered to a journalist? You guessed it. They gave up to NBC radio correspondent Liz Colton."

Colton v. Clinton: Defendant has “memorialized its discriminatory ...| Mar 30, 2010
The Colton lawyers fired back, with opposition to the State Department’s Motion to Dismiss and moved for discovery.
Defendant also argues that Plaintiff failed to state a claim upon which relief can be granted because (1) Strawberry v. Albright, 111 F.3d 943 (D.C. Cir. 1997), a limited D.C. Circuit Court decision, held that the 1980 Act’s mandatory retirement provision is an exception to the ADEA; and (2) Vance v. Bradley, 440 U.S. 93 (1979), a 30 year-old Supreme Court decision, held that the mandatory retirement provision of the Foreign Service Act of 1946 (“1946 Act”) is constitutional based on a limited review of different  congressional findings more than 70 years old. Neither of these cases excuse the numerous instances of overt discrimination, retaliation and constitutional inequalities identified in Plaintiff’s Amended Complaint.

Because you'll be mandatorily retired this year ... | April 8, 2010
Our first ecard from someecards, a way to show how we really, truly, appreciate your talents and experience and service to this country.  We are happy to entertain other sentiments for additional ecards that you can send to yourself and your friends.  But don't send these ecards to political appointees; they all have the anti-airlock device. As far as we know, they all are unchuckable at 65. Unchuckable, that is -- until the next election!

US Embassy Pakistan: Understaffed, inexperienced staff handles $30 million public diplomacy programs | July 13, 2010
Do you think that kicking out a seasoned public diplomacy officer as soon as she turns 65, despite staffing gaps in arguably one of the our most important U.S. missions in the world is really good management?
From OIG: With the exception of the PAO, the staff has been sent to Islamabad on its first PD tour and expected to implement one of the largest and most complex PD programs in the world. To expect an understaffed, inexperienced (albeit hard-working and willing) staff to implement a large, complicated, and important PAS program is not good management. 

A good time to remember Holbrook "Hobey" Bradley | Aug 03, 2010
We note that Hobey took the government to court in 1977 when he was 61 years old.  The case was decided by the Supreme Court in 1979 when he was 63 years old. Two years after that, when Hobey was 65 years old, Congress reversed course and again raised the mandatory Foreign Service retirement age to 65 in the Foreign Service Act of 1980 (as it had been from 1924 to 1946). In 2010, Hobey died at the age of 93.

When are you too old to represent the United States abroad ...| Aug 19, 2010
State is sending  a seasoned public diplomacy officer to Egypt for one year instead of the normal tour of duty of three years.  That means instead of relocation expense for one officer in the next three years, State will have relocation expenses for two officers between now and 2011, when Dr. Colton's tour in Cairo concludes.  How is more expense for an already budget-strapped bureaucracy is really in the public interest?
My understanding of MAR is that the Foreign Service Act allows a waiver of up to five years past 65 but the individual will be locked into his/her current grade with no additional opportunities for career advancement or promotion. But given that there is a real experience gap in the mid-level staffing of the Foreign Service, especially in the Consular and Public Diplomacy career tracks, why is this such a hard nut to crack for HR and the Director General of the Foreign Service? 

Smart Diplomacy and the Age Discrimination Saga of US Diplomat ...| August 2010
Exceptions to this shortsighted and inane policy can be made on a case by case basis, but the State Department, possibly because Dr. Colton has challenged the law in court, is refusing to extend her time in Karachi.  [...] The Near Eastern bureau has asked for Colton to be assigned to the Cairo embassy for a three year tour, but for obscure bureaucratic reasons the State Department is limiting the extension to one year.

Mandatory Retirement in the Foreign Service: The Numbers Game | September 7, 2010
As far as we know, there has been no midlevel hiring to address the staffing gaps, the MAR waiver numbers are foggy at best (we've heard employees eligible for retirement told not to bother applying for MAR waivers), and the "up-or-out" system (under which failure to gain promotion to higher rank within a specified time in class would lead to mandatory retirement) is still working.  Meanwhile, the civilian surge is on in Afghanistan, Iraq and almost in Pakistan.

It looks to me like the mantra "when we're fully staffed" will be around for many more years and holding down one job plus two or three might be the new normal for years to come.

Colton v. Clinton: Age Discrimination Case Fails in DC Court | September 28, 2010
On September 24, Judge Richard Leon of the District Court for the District of Columbia dismissed FSO Elizabeth Colton's age discrimination case against the State Department.

[...] Colton's allegation that the Secretary of State's refusal to grant her an extension pursuant to § 4052
( d) was a discriminatory act is unavailing. Although the mandatory retirement provision grants the Secretary the discretion to retain a person for up to five years past the mandatory retirement age if in the "public interest," there is no requirement that the Secretary do so.
Colton is woefully misguided to imply that this Court can and should disregard Supreme Court precedent if it appears outdated. The Supreme Court alone can overrule its own precedents, and the fact that a plaintiff articulates a new theory as to why a different result should be reached is insufficient to revisit a settled issue.

Updated 10/9/2010