Collapse to view only § 4138. Access to records
- § 4131. Definitions and applicability
- § 4132. Grievances concerning former members or their survivors
- § 4133. Freedom of action
- § 4134. Time limitations
- § 4135. Foreign Service Grievance Board
- § 4136. Foreign Service Grievance Board procedures
- § 4137. Foreign Service Grievance Board decisions
- § 4138. Access to records
- § 4139. Relationship to other remedies
- § 4140. Judicial review
§ 4131. Definitions and applicability
(a)
(1) Except as provided in subsection (b), for purposes of this subchapter, the term “grievance” means any act, omission, or condition subject to the control of the Secretary which is alleged to deprive a member of the Service who is a citizen of the United States (other than a United States citizen employed under section 3951 of this title who is not a family member) of a right or benefit authorized by law or regulation or which is otherwise a source of concern or dissatisfaction to the member, including—
(A) separation of the member allegedly contrary to laws or regulations, or predicated upon alleged inaccuracy, omission, error, or falsely prejudicial character of information in any part of the official personnel record of the member;
(B) other alleged violation, misinterpretation, or misapplication of applicable laws, regulations, or published policy affecting the terms and conditions of the employment or career status of the member;
(C) allegedly wrongful disciplinary action against the member;
(D) dissatisfaction with respect to the working environment of the member;
(E) alleged inaccuracy, omission, error, or falsely prejudicial character of information in the official personnel record of the member which is or could be prejudicial to the member;
(F) action alleged to be in the nature of reprisal or other interference with freedom of action in connection with participation by the member in procedures under this subchapter;
(G) alleged denial of an allowance, premium pay, or other financial benefit to which the member claims entitlement under applicable laws or regulations; and
(H) any discrimination prohibited by—
(i)section 2000e–16 of title 42,
(ii)section 206(d) of title 29,
(iii)section 791 of title 29,
(iv) sections 631 and 633a of title 29, or
(v) any rule, regulation, or policy directive prescribed under any provision of law described in clauses (i) through (iv).
(2) The scope of grievances described in paragraph (1) may be modified by written agreement between the Department and the labor organization accorded recognition as the exclusive representative under subchapter X (hereinafter in this subchapter referred to as the “exclusive representative”).
(b) For purposes of this subchapter, the term “grievance” does not include—
(1) an individual assignment of a member under subchapter V, other than an assignment alleged to be contrary to law or regulation;
(2) the judgment of a selection board established under section 4002 of this title, a tenure board established under section 3946(b) of this title, or any other equivalent body established by laws or regulations which similarly evaluates the performance of members of the Service on a comparative basis;
(3) the expiration of a limited appointment, the termination of a limited appointment under section 4011 of this title, or the denial of a limited career extension or of a renewal of a limited career extension under section 4007(b) of this title; or
(4) any complaint or appeal where a specific statutory hearing procedure exists, except as provided in section 4139(a)(2) of this title.
Nothing in this subsection shall exclude any act, omission, or condition alleged to violate any law, rule, regulation, or policy directive referred to in subsection (a)(1)(H) from such term.
(c) This subchapter applies only with respect to the Department of State, Broadcasting 1
1 So in original. Probably should be “the Broadcasting”.
Board of Governors, the Agency for International Development, the Department of Agriculture, and the Department of Commerce.(Pub. L. 96–465, title I, § 1101, Oct. 17, 1980, 94 Stat. 2142; Pub. L. 97–241, title III, § 303(b), Aug. 24, 1982, 96 Stat. 291; Pub. L. 102–138, title I, § 153(a), Oct. 28, 1991, 105 Stat. 673; Pub. L. 103–236, title I, §§ 180(a)(10), 181(a)(4)(A), Apr. 30, 1994, 108 Stat. 416, 417; Pub. L. 105–277, div. G, subdiv. A, title XIII, § 1335(k)(4), title XIV, § 1422(b)(4)(D), Oct. 21, 1998, 112 Stat. 2681–789, 2681–793.)
§ 4132. Grievances concerning former members or their survivors
Within the time limitations of section 4134 of this title, a former member of the Service or the surviving spouse (or, if none, another member of the family) of a deceased member or former member of the Service may file a grievance under this subchapter only with respect to allegations described in section 4131(a)(1)(G) of this title.
(Pub. L. 96–465, title I, § 1102, Oct. 17, 1980, 94 Stat. 2143.)
§ 4133. Freedom of action
(a) Nature of protection
(b) Right to representation
(1) The grievant has the right to a representative of his or her own choosing at every stage of the proceedings under this subchapter.
(2) In any case where the grievant is a member of a bargaining unit represented by an exclusive representative, but is not represented in the grievance by that exclusive representative, the exclusive representative shall have the right to appear during the grievance proceedings.
(3) The grievant, and any representative of the grievant who is a member of the Service or employee of the Department, shall be granted reasonable periods of administrative leave to prepare and present the grievance and to attend proceedings under this subchapter.
(c) Administrative leave for witnesses
(d) Records
(1) No record of—
(A) a determination by the Secretary to reject a recommendation of the Foreign Service Grievance Board,
(B) a finding by the Grievance Board against the grievant, or
(C) the fact that a grievance proceeding is pending or has been held,
shall be entered in the personnel records of the grievant (except by order of the Grievance Board as a remedy for the grievance) or those of any other individual connected with the grievance. Nothing in this subsection shall prevent a grievant from placing a rebuttal to accompany a record of disciplinary action in such grievant’s personnel records nor prevent the Department from including a response to such rebuttal, including documenting those cases in which the Board has reviewed and upheld the discipline.
(2) The Department shall maintain records pertaining to grievances under appropriate safeguards to preserve confidentiality.
(3) The Foreign Service Grievance Board may enforce compliance with the requirements of paragraphs (1) and (2).
(e) Expedition of security clearance procedures
(Pub. L. 96–465, title I, § 1103, Oct. 17, 1980, 94 Stat. 2143; Pub. L. 106–113, div. B, § 1000(a)(7) [div. A, title III, § 329], Nov. 29, 1999, 113 Stat. 1536, 1501A–438.)
§ 4134. Time limitations
(a) Limitations period
(b) Failure of Department to resolve grievance; grievance filed with Foreign Service Grievance Board
(c) Grievances based on alleged discrimination
(1) In applying subsection (a) with respect to an alleged violation of a law, rule, regulation, or policy directive referred to in section 4131(a)(1)(H) of this title, the reference to “2 years” shall be deemed to read “180 days”, subject to paragraph (2).
(2) If the occurrence or occurrences giving rise to the grievance are alleged to have occurred while the grievant was assigned to a post abroad, the 180-day period provided for under paragraph (1) shall not commence until the earlier of—
(A) the date as of which the grievant is no longer assigned to such post; or
(B) the expiration of the 18-month period beginning on the date of the occurrence giving rise to the grievance or the last such occurrence, as the case may be.
(Pub. L. 96–465, title I, § 1104, Oct. 17, 1980, 94 Stat. 2144; Pub. L. 102–138, title I, § 153(b), Oct. 28, 1991, 105 Stat. 673; Pub. L. 106–113, div. B, § 1000(a)(7) [div. A, title III, § 330(a), (b)], Nov. 29, 1999, 113 Stat. 1536, 1501A–438; Pub. L. 107–228, div. A, title III, § 317, Sept. 30, 2002, 116 Stat. 1379.)
§ 4135. Foreign Service Grievance Board
(a) Establishment; composition
(b) Appointment and selection of nominees; length of terms; vacancies
(c) Compensation
(d) Removal
(e) Administrative services; payment of expenses; assignment as staff employees of Board; performance evaluation reports; records
(f) Report
(1) Not later than March 1 of each year, the Chairman of the Foreign Service Grievance Board shall prepare a report summarizing the activities of the Board during the previous calendar year. The report shall include—
(A) the number of cases filed;
(B) the types of cases filed;
(C) the number of cases on which a final decision was reached, as well as data on the outcome of cases, whether affirmed, reversed, settled, withdrawn, or dismissed;
(D) the number of oral hearings conducted and the length of each such hearing;
(E) the number of instances in which interim relief was granted by the Board; and
(F) data on the average time for consideration of a grievance, from the time of filing to a decision of the Board.
(2) The report required under paragraph (1) shall be submitted to the Director General of the Foreign Service and the Committee on Foreign Relations of the Senate and the Committee on International Relations of the House of Representatives.
(Pub. L. 96–465, title I, § 1105, Oct. 17, 1980, 94 Stat. 2144; Pub. L. 106–113, div. B, § 1000(a)(7) [div. A, title III, § 331], Nov. 29, 1999, 113 Stat. 1536, 1501A–439.)
§ 4136. Foreign Service Grievance Board proceduresThe Board may adopt regulations concerning its organization and procedures. Such regulations shall include provision for the following:
(1) The Board shall conduct a hearing at the request of a grievant in any case which involves—
(A) disciplinary action or the retirement of a grievant from the Service under section 4007 or 4008 of this title, or
(B) issues which, in the judgment of the Board, can best be resolved by a hearing or presentation of oral argument.
(2) The grievant, the representatives of the grievant, the exclusive representative (if the grievant is a member of the bargaining unit represented by the exclusive representative), and the representatives of the Department are entitled to be present at the hearing. The Board may, after considering the views of the parties and any other individuals connected with the grievance, decide that a hearing should be open to others. Testimony at a hearing shall be given under oath, which any Board member or individual designated by the Board shall have authority to administer.
(3) Each party (including an exclusive representative appearing in the proceedings) shall be entitled to examine and cross-examine witnesses at the hearing or by deposition and to serve interrogatories upon another party and have such interrogatories answered by the other party unless the Board finds such interrogatory irrelevant, immaterial, or unduly repetitive. Upon request of the Board, or upon a request of the grievant deemed relevant and material by the Board, an agency shall promptly make available at the hearing or by deposition any witness under its control, supervision, or responsibility, except that if the Board determines that the presence of such witness at the hearing is required for just resolution of the grievance, then the witness shall be made available at the hearing, with necessary costs and travel expenses paid by the Department.
(4) During any hearing held by the Board, any oral or documentary evidence may be received, but the Board shall exclude any irrelevant, immaterial, or unduly repetitious evidence, as determined under section 556 of title 5.
(5) A verbatim transcript shall be made of any hearing and shall be part of the record of proceedings.
(6) In those grievances in which the Board does not hold a hearing, the Board shall afford to each party the opportunity to review and to supplement, by written submissions, the record of proceedings prior to the decision by the Board. The decision of the Board shall be based exclusively on the record of proceedings.
(7) The Board may act by or through panels or individual members designated by the Chairperson, except that hearings within the continental United States shall be held by panels of at least three members unless the parties agree otherwise. References in this subchapter to the Board shall be considered to be references to a panel or member of the Board where appropriate. All members of the Board shall act as impartial individuals in considering grievances.
(8) If the Board determines that the Department is considering the involuntary separation of the grievant (other than an involuntary separation for cause under section 4010(a) of this title), disciplinary action against the grievant, or recovery from the grievant of alleged overpayment of salary, expenses, or allowances, which is related to a grievance pending before the Board and that such action should be suspended, the Department shall suspend such action until the date which is one year after such determination or until the Board has ruled upon the grievance, whichever comes first. The Board shall extend the one-year limitation under the preceding sentence and the Department shall continue to suspend such action, if the Board determines that the agency or the Board is responsible for the delay in the resolution of the grievance. The Board may also extend the 1-year limit if it determines that the delay is due to the complexity of the case, the unavailability of witnesses or to circumstances beyond the control of the agency, the Board or the grievant. Notwithstanding such suspension of action, the head of the agency concerned or a chief of mission or principal officer may exclude the grievant from official premises or from the performance of specified functions when such exclusion is determined in writing to be essential to the functioning of the post or office to which the grievant is assigned.
(9) The Board may reconsider any decision upon presentation of newly discovered or previously unavailable material evidence.
(Pub. L. 96–465, title I, § 1106, Oct. 17, 1980, 94 Stat. 2145; Pub. L. 101–167, title V, § 586(a), Nov. 21, 1989, 103 Stat. 1252; Pub. L. 102–138, title I, § 143(b), Oct. 28, 1991, 105 Stat. 668; Pub. L. 103–236, title I, §§ 177(a), 181(a)(4)(B), Apr. 30, 1994, 108 Stat. 414, 417; Pub. L. 107–228, div. A, title III, § 314(b), Sept. 30, 2002, 116 Stat. 1379; Pub. L. 109–140, § 5, Dec. 22, 2005, 119 Stat. 2652.)
§ 4137. Foreign Service Grievance Board decisions
(a) Record; findings of fact and statement of reasons
(b) Authority of Department upon finding of meritorious grievanceIf the Board finds that the grievance is meritorious, the Board shall have the authority to direct the Department—
(1) to correct any official personnel record relating to the grievant which the Board finds to be inaccurate or erroneous, to have an omission, or to contain information of a falsely prejudicial character;
(2) to reverse a decision denying the grievant compensation or any other perquisite of employment authorized by laws or regulations when the Board finds that such decision was arbitrary, capricious, or contrary to laws or regulations;
(3) to retain in the Service a member whose separation would be in consequence of the matter by which the member is aggrieved;
(4) to reinstate the grievant, and to grant the grievant back pay in accordance with section 5596(b)(1) of title 5;
(5) to pay reasonable attorney fees to the grievant to the same extent and in the same manner as such fees may be required by the Merit Systems Protection Board under section 7701(g) of title 5; and
(6) to take such other remedial action as may be appropriate under procedures agreed to by the Department and the exclusive representative (if any).
(c) Finality of decisions; judicial review
(d) Recommendations
(1) If the Board finds that the grievance is meritorious and that remedial action should be taken that relates directly to promotion, tenure or assignment of the grievant or to other remedial action not otherwise provided for in this section, or if the Board finds that the evidence before it warrants disciplinary action against any employee of the Department or member of the Service, it shall make an appropriate recommendation to the Secretary. The Secretary shall make a written decision on the recommendation of the Board within 30 days after receiving the recommendation. The Secretary shall implement the recommendation of the Board except to the extent that, in a decision made within that 30-day period, the Secretary rejects the recommendation in whole or in part on the basis of a determination that implementation of the recommendation would be contrary to law or would adversely affect the foreign policy or national security of the United States. If the Secretary rejects the recommendation in whole or in part, the decision shall specify the reasons for such action. Pending the decision of the Secretary, there shall be no ex parte communication concerning the grievance between the Secretary and any person involved in the proceedings of the Board. The Secretary shall, however, have access to the entire record of the proceedings of the Board.
(2) A recommendation under paragraph (1) shall, for purposes of section 4140 of this title, be considered a final action upon the expiration of the 30-day period referred to in such paragraph, except to the extent that it is rejected by the Secretary by an appropriate written decision.
(3)
(A) If the Secretary makes a written decision under paragraph (1) rejecting a recommendation in whole or in part on the basis of a determination that implementing such recommendation would be contrary to law, the Secretary shall, within the 30-day period referred to in such paragraph—
(i) submit a copy of such decision to the Board; and
(ii) request that the Board reconsider its recommendation or, if less than the entirety is rejected, that the Board reconsider the portion rejected.
(B)
(i) Within 30 days after receiving a request under subparagraph (A), the Board shall, after reviewing the Secretary’s decision, make a recommendation to the Secretary either confirming, modifying, or vacating its original recommendation or, if less than the entirety was rejected, the portion involved.
(ii) Reconsideration under this subparagraph shall be limited to the question of whether implementing the Board’s original recommendation, either in whole or in part, as applicable, would be contrary to law.
(C) A recommendation made under subparagraph (B) shall be considered a final action for purposes of section 4140 of this title, and shall be implemented by the Secretary.
(e) Record of grievances; copy to committee of Congress; right of review
(1) The Board shall maintain records of all grievances awarded in favor of the grievant in which the grievance concerns gross misconduct by a supervisor. Subject to paragraph (2), the Committee on Foreign Relations of the Senate shall be provided with a copy of the grievance decision whenever such a supervisor is nominated for any position requiring the advice and consent of the Senate and the Board shall provide access to the entire record of any proceedings of the Board concerning such a grievance decision to any Member of the Committee on Foreign Relations upon a request by the Chairman or Ranking Minority Member of such committee.
(2)
(A) Except as provided in subparagraph (B), all decisions, proceedings, and other records disclosed pursuant to paragraph (1) shall be treated as confidential and may be disclosed only to Committee members and appropriate staff.
(B) Whenever material is provided to the Committee or a Member thereof pursuant to paragraph (1), the Board shall, at the same time, provide a copy of all such material to the supervisor who is the subject of such material.
(C) A supervisor who is the subject of records disclosed to the committee 1
1 So in original. Probably should be capitalized.
pursuant to this subsection shall have the right to review such record and provide comments to the Committee concerning such record. Such comments shall be treated in a confidential manner.(f) Alleged discrimination; substantive law to be applied
(Pub. L. 96–465, title I, § 1107, Oct. 17, 1980, 94 Stat. 2146; Pub. L. 100–204, title I, §§ 181(a), (b), 182, Dec. 22, 1987, 101 Stat. 1363, 1364; Pub. L. 102–138, title I, § 153(c), Oct. 28, 1991, 105 Stat. 673.)
§ 4138. Access to records
(a) Review by Foreign Service Grievance Board of decision denying access
(b) Access by Foreign Service Grievance Board; relevant and material records; adverse effect on national security or foreign policy
In considering a grievance, the Board shall have access to any agency record as follows:
(1)
(A) The Board shall request access to any agency record which the grievant requests to substantiate the grievance if the Board determines that such record may be relevant and material to the grievance.
(B) The Board may request access to any other agency record which the Board determines may be relevant and material to the grievance.
(2) Any agency shall make available to the Board any agency record requested under paragraph (1) unless the head or deputy head of such agency personally certifies in writing to the Board that disclosure of the record to the Board and the grievant would adversely affect the foreign policy or national security of the United States or that such disclosure is prohibited by law. If such a certification is made with respect to any record, the agency shall supply to the Board a summary or extract of such record unless the reasons specified in the preceding sentence preclude such a summary or extract.
(c) Access by grievant
(d) Denial of access as factor in determination of grievance
(e) Proceedings and decisions of Foreign Service Grievance Board
(Pub. L. 96–465, title I, § 1108, Oct. 17, 1980, 94 Stat. 2147.)
§ 4139. Relationship to other remedies
(a)
(1) A grievant may not file a grievance with the Board if the grievant has formally requested, prior to filing a grievance, that the matter or matters which are the basis of the grievance be considered or resolved and relief be provided under another provision of law, regulation, or Executive order, other than under section 1214 or 1221 of title 5, and the matter has been carried to final decision under such provision on its merits or is still under consideration.
(2) If a grievant is not prohibited from filing a grievance under paragraph (1), the grievant may file with the Board a grievance which is also eligible for consideration, resolution, and relief under chapter 12 of title 5 or a regulation or Executive order other than under this subchapter. An election of remedies under this subsection shall be final upon the acceptance of jurisdiction by the Board.
(3) This subsection shall not apply to any grievance with respect to which subsection (b) applies.
(b)
(1) With respect to a grievance based on an alleged violation of a law, rule, regulation, or policy directive referred to in section 4131(a)(1)(H) of this title, a grievant may either—
(A) file a grievance under this subchapter, or
(B) initiate in writing a proceeding under another provision of law, regulation, or Executive order that authorizes relief,
but not both.
(2) A grievant shall be considered to have exercised the option under paragraph (1) as soon as the grievant timely either—
(A) files a grievance under this subchapter, or
(B) initiates in writing a proceeding under such other provision of law, regulation, or Executive order.
(Pub. L. 96–465, title I, § 1109, Oct. 17, 1980, 94 Stat. 2148; Pub. L. 101–12, § 9(a)(3), Apr. 10, 1989, 103 Stat. 35; Pub. L. 102–138, title I, § 153(d)(1), Oct. 28, 1991, 105 Stat. 673.)
§ 4140. Judicial review
(a) Any aggrieved party may obtain judicial review of a final action of the Secretary or the Board on any grievance in the district courts of the United States in accordance with the standards set forth in chapter 7 of title 5, if the request for judicial review is filed not later than 180 days after the final action of the Secretary or the Board (or in the case of an aggrieved party who is posted abroad at the time of the final action of the Secretary or the Board, if the request for judicial review is filed not later than 180 days after the aggrieved party’s return to the United States). Section 706 of title 5 shall apply without limitation or exception. This subsection shall not apply to any grievance with respect to which subsection (b) applies.
(b)
(1) For purposes of this subsection, the term “aggrieved party” means a grievant.
(2) With respect to a grievance based on an alleged violation of a law, rule, regulation, or policy directive referred to in section 4131(a)(1)(H) of this title, judicial review of whether the act, omission, or condition that is the basis of the grievance violates such law, rule, regulation, or policy directive may be obtained by an aggrieved party only if such party commences a civil action, not later than 90 days after such party receives notice of the final action of the Secretary or the Board, in an appropriate district court of the United States for de novo review.
(Pub. L. 96–465, title I, § 1110, Oct. 17, 1980, 94 Stat. 2148; Pub. L. 102–138, title I, § 153(e), Oct. 28, 1991, 105 Stat. 674; Pub. L. 103–236, title I, § 177(b), Apr. 30, 1994, 108 Stat. 414.)