§ 4010. — Separation for cause.
[Laws in effect as of January 7, 2003]
[Document not affected by Public Laws enacted between
January 7, 2003 and December 19, 2003]
[CITE: 22USC4010]
TITLE 22--FOREIGN RELATIONS AND INTERCOURSE
CHAPTER 52--FOREIGN SERVICE
SUBCHAPTER VI--PROMOTION AND RETENTION
Sec. 4010. Separation for cause
(a) Authorization of Secretary; right to hearing; attorneys fees and
backpay; leave without pay
(1) The Secretary may decide to separate any member from the Service
for such cause as will promote the efficiency of the Service.
(2)(A) Except as provided in subparagraph (B), whenever the
Secretary decides under paragraph (1) to separate, on the basis of
misconduct, any member of the Service (other than a United States
citizen employed under section 3951 of this title who is not a family
member) who either--
(i) is serving under a career appointment, or
(ii) is serving under a limited appointment,
the member may not be separated from the Service until the member
receives a hearing before the Foreign Service Grievance Board and the
Board decides that cause for separation has been established, unless the
member waives, in writing, the right to such a hearing, or the member's
appointment has expired, whichever is sooner.
(B) The right to a hearing in subparagraph (A) does not apply in the
case of an individual who has been convicted of a crime for which a
sentence of imprisonment of more than one year may be imposed.
(3) If the Board decides that cause for separation has not been
established, the Board may direct the Department to pay reasonable
attorneys' fees to the extent and in the manner provided by section
4137(b)(5) of this title. The hearing provided under this paragraph
shall be conducted in accordance with the hearing procedures applicable
to grievances under section 4136 of this title and shall be in lieu of
any other administrative procedure authorized or required by this or any
other Act. Section 4140 of this title shall apply to proceedings under
this paragraph.
(4) Notwithstanding the hearing required by paragraph (2), at the
time that the Secretary decides to separate a member of the Service for
cause, the member shall be placed on leave without pay. If the member
does not waive the right to a hearing, and the Board decides that cause
for separation has not been established, the member shall be reinstated
with back pay.
(b) Refund of contributions to Fund; annuity election
Any participant in the Foreign Service Retirement and Disability
System who is separated under subsection (a) of this section shall be
entitled to receive a refund as provided in section 4055 of this title
of the contributions made by the participant to the Foreign Service
Retirement and Disability Fund. Except in cases where the Secretary
determines that separation was based in whole or in part on the ground
of disloyalty to the United States, a participant who has at least 5
years of service credit toward retirement under the Foreign Service
Retirement and Disability System (excluding military and naval service)
may elect, in lieu of such refund, to an annuity, computed under section
4046 of this title, commencing at age 60.
(Pub. L. 96-465, title I, Sec. 610, Oct. 17, 1980, 94 Stat. 2098; Pub.
L. 100-204, title I, Sec. 181(d), Dec. 22, 1987, 101 Stat. 1364; Pub. L.
101-167, title V, Sec. 586(b), Nov. 21, 1989, 103 Stat. 1252; Pub. L.
101-246, title I, Sec. 143, Feb. 16, 1990, 104 Stat. 36; Pub. L. 102-
138, title I, Sec. 143(a), Oct. 28, 1991, 105 Stat. 668; Pub. L. 103-
415, Sec. 1(h)(2), Oct. 25, 1994, 108 Stat. 4300; Pub. L. 105-277, div.
G, subdiv. B, title XXIII, Sec. 2313, Oct. 21, 1998, 112 Stat. 2681-827;
Pub. L. 106-113, div. B, Sec. 1000(a)(7) [div. A, title III, Sec. 328],
Nov. 29, 1999, 113 Stat. 1536, 1501A-438; Pub. L. 107-228, div. A, title
III, Sec. 314(a), Sept. 30, 2002, 116 Stat. 1378.)
Amendments
2002--Subsec. (a)(1). Pub. L. 107-228, Sec. 314(a)(1), inserted
``decide to'' after ``may''.
Subsec. (a)(2) to (6). Pub. L. 107-228, Sec. 314(a)(2), (3), added
pars. (2) to (4) and struck out former pars. (2) to (6) which related to
the rights of members of the Service to hearings before the Foreign
Service Grievance Board prior to being separated from the Service,
suspensions from the Service pending final resolution of the underlying
matter, procedural rights of suspended members, review of suspensions by
the Board, and leave without pay pending final resolution for members
recommended for separation.
1999--Subsec. (a)(6). Pub. L. 106-113 added par. (6).
1998--Subsec. (a)(2). Pub. L. 105-277, in first sentence,
substituted ``Except in the case of an individual who has been convicted
of a crime for which a sentence of imprisonment of more than 1 year may
be imposed, a member'' for ``A member''.
1994--Subsec. (a)(2). Pub. L. 103-415 inserted ``(other than a
United States citizen employed under section 3951 of this title who is
not a family member)'' after ``A member of the Service''.
1991--Subsec. (a)(3). Pub. L. 102-138, Sec. 143(a)(1), substituted
``a member has been convicted of a crime'' for ``there is reasonable
cause to believe that a member has committed a crime''.
Subsec. (a)(4)(A). Pub. L. 102-138, Sec. 143(a)(2), substituted
``suspension'' for ``suspension, including the grounds for reasonable
cause to believe a crime has been committed''.
Subsec. (a)(5). Pub. L. 102-138, Sec. 143(a)(3), substituted ``the
conviction requirements of subsection (a)(3) of this section have been
fulfilled'' for ``there exists reasonable cause to believe a crime has
been committed for which a sentence of imprisonment may be imposed''.
1990--Subsec. (a)(2). Pub. L. 101-246 inserted before period at end
of first sentence ``or, notwithstanding section 4136(8) of this title,
unless the member has been convicted of a crime related to the cause for
separation, subject to reinstatement with back pay (for any period
during which separation for cause had not been established by such a
hearing) if such conviction is reversed on appeal'' and inserted
sentence at end that section 4140 of this title apply to proceedings
under this paragraph.
1989--Subsec. (a)(3) to (5). Pub. L. 101-167 added pars. (3) to (5).
1987--Subsec. (a)(2). Pub. L. 100-204 inserted after first sentence
``If such cause is not established at such hearing, the Grievance Board
shall have the authority to direct the Department to pay reasonable
attorneys fees to the extent and in the manner provided by section
4137(b)(5) of this title.''
Effective Date of 1987 Amendment
Amendment by Pub. L. 100-204 not applicable with respect to any
grievance in which the Board has issued a final decision pursuant to
section 4137 of this title before Dec. 22, 1987, see section 181(e) of
Pub. L. 100-204, set out as a note under section 3946 of this title.
Expedited Separation Out
Pub. L. 105-277, div. G, subdiv. B, title XXIII, Sec. 2311(b), Oct.
21, 1998, 112 Stat. 2681-826, provided that:
``(1) Separation of lowest ranked foreign service members.--Not
later than 90 days after the date of enactment of this Act [Oct. 21,
1998], the Secretary of State shall develop and implement procedures to
identify, and recommend for separation, any member of the Foreign
Service ranked by promotion boards of the Department of State in the
bottom 5 percent of his or her class for 2 or more of the 5 years
preceding the date of enactment of this Act (in this subsection referred
to as the `years of lowest ranking') if the rating official for such
member was not the same individual for any two of the years of lowest
ranking.
``(2) Special internal reviews.--In any case where the member was
evaluated by the same rating official in any 2 of the years of lowest
ranking, an internal review of the member's file shall be conducted to
determine whether the member should be considered for action leading to
separation.
``(3) Procedures.--The Secretary of State shall develop procedures
for the internal reviews required under paragraph (2).''
Definition of ``Reasonable Cause''
Section 586(c) of Pub. L. 101-167 provided that for purposes of
amendments by section 586(a) and (b) of Pub. L. 101-167, which amended
this section and section 4136 of this title, reasonable cause to believe
that a member has committed a crime for which a sentence of imprisonment
may be imposed was to be defined as a member of the Service having been
convicted of, and sentence of imprisonment having been imposed for, a
job-related crime, prior to repeal by Pub. L. 102-138, title I,
Sec. 143(c), Oct. 28, 1991, 105 Stat. 668.
Section Referred to in Other Sections
This section is referred to in sections 4011, 4071d of this title.
