§ 4137. — Foreign Service Grievance Board decisions.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 22USC4137]
TITLE 22--FOREIGN RELATIONS AND INTERCOURSE
CHAPTER 52--FOREIGN SERVICE
SUBCHAPTER XI--GRIEVANCES
Sec. 4137. Foreign Service Grievance Board decisions
(a) Record; findings of fact and statement of reasons
Upon completion of its proceedings, the Board shall expeditiously
decide the grievance on the basis of the record of proceedings. In each
case the decision of the Board shall be in writing, and shall include
findings of fact and a statement of the reasons for the decision of the
Board.
(b) Authority of Department upon finding of meritorious grievance
If 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
Except as provided in subsection (d) of this section, decisions of
the Board under this subchapter shall be final, subject only to judicial
review as provided in section 4140 of this title.
(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\ 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.
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\1\ So in original. Probably should be capitalized.
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(f) Alleged discrimination; substantive law to be applied
The Board shall, with respect to any 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, apply the substantive law that
would be applied by the Equal Employment Opportunity Commission if a
charge or claim alleging discrimination under such law, rule,
regulation, or policy directive had been filed with the commission.\1\
(Pub. L. 96-465, title I, Sec. 1107, Oct. 17, 1980, 94 Stat. 2146; Pub.
L. 100-204, title I, Secs. 181(a), (b), 182, Dec. 22, 1987, 101 Stat.
1363, 1364; Pub. L. 102-138, title I, Sec. 153(c), Oct. 28, 1991, 105
Stat. 673.)
Amendments
1991--Subsec. (f). Pub. L. 102-138 added subsec. (f).
1987--Subsec. (d). Pub. L. 100-204, Sec. 181(a), (b), designated
existing provisions as par. (1), inserted ``, tenure'' after
``promotion'' in first sentence, and added pars. (2) and (3).
Subsec. (e). Pub. L. 100-204, Sec. 182, added subsec. (e).
Effective Date of 1991 Amendment
Amendment by Pub. L. 102-138 not applicable with respect to any
grievance, within the meaning of section 4131 of this title, arising
before Oct. 28, 1991, see section 153(f) of Pub. L. 102-138, set out as
a note under section 4115 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
this section before Dec. 22, 1987, see section 181(e) of Pub. L. 100-
204, set out as a note under section 3946 of this title.
Section Referred to in Other Sections
This section is referred to in sections 3946, 4004, 4010 of this
title.
