22 U.S.C. § 4136 — Foreign Service Grievance Board proce-

Page 1548 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 4136 (E) the number of instances in which interim relief was granted by the Board; and (F) data on the average time for consider- ation 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 For- eign Relations of the Senate and the Committee on International Relations of the House of Rep- resentatives. (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.) Editorial Notes AMENDMENTS 1999—Subsec. (f). Pub. L. 106–113 added subsec. (f). Statutory Notes and Related Subsidiaries CHANGE OF NAME Committee on International Relations of House of Representatives changed to Committee on Foreign Af- fairs of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. REFERENCES IN OTHER LAWS TO GS–16, 17, OR 18 PAY RATES References in laws to the rates of pay for GS–16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organi- zation and Employees, see section 529 [title I, § 101(c)(1)] of Pub. L. 101–509, set out in a note under section 5376 of Title 5. § 4136. Foreign Service Grievance Board proce- dures The Board may adopt regulations concerning its organization and procedures. Such regula- tions shall include provision for the following: (1) The Board shall conduct a hearing at the request of a grievant in any case which in- volves— (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 hear- ing 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 rep- resentative appearing in the proceedings) shall be entitled to examine and cross-examine wit- nesses 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 inter- rogatory irrelevant, immaterial, or unduly re- petitive. 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, su- pervision, or responsibility, except that if the Board determines that the presence of such witness at the hearing is required for just res- olution 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 re- ceived, but the Board shall exclude any irrele- vant, immaterial, or unduly repetitious evi- dence, 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 Depart- ment is considering the involuntary separa- tion of the grievant (other than an involun- tary separation for cause under section 4010(a) of this title), disciplinary action against the grievant, or recovery from the grievant of al- leged overpayment of salary, expenses, or al- lowances, which is related to a grievance pend- ing 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 com- plexity of the case, the unavailability of wit- nesses or to circumstances beyond the control of the agency, the Board or the grievant. Not- withstanding such suspension of action, the head of the agency concerned or a chief of mis- sion or principal officer may exclude the grievant from official premises or from the performance of specified functions when such Page 1549 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 4137 exclusion is determined in writing to be essen- tial 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 pre- viously 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.) Editorial Notes AMENDMENTS 2005—Par. (8). Pub. L. 109–140 inserted ‘‘the involun- tary separation of the grievant (other than an involun- tary separation for cause under section 4010(a) of this title),’’ after ‘‘considering’’ and substituted ‘‘the griev- ant, or’’ for ‘‘the grievant or’’. 2002—Par. (8). Pub. L. 107–228, in first sentence, struck out ‘‘the involuntary separation of the grievant,’’ be- fore ‘‘disciplinary action’’ and substituted ‘‘grievant or’’ for ‘‘grievant, or’’, and struck out last sentence which read as follows: ‘‘Notwithstanding the first sen- tence of this paragraph, the Board’s authority to sus- pend such action shall not extend to instances where the Secretary, or his designee, has exercised his author- ity under subsection (a)(3) of section 4010 of this title or with respect to any action which would delay the sepa- ration of an employee pursuant to a reduction in force conducted under section 4010a of this title.’’ 1994—Par. (8). Pub. L. 103–236, § 181(a)(4)(B), inserted before period at end ‘‘or with respect to any action which would delay the separation of an employee pur- suant to a reduction in force conducted under section 4010a of this title’’. Pub. L. 103–236, § 177(a), substituted ‘‘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 deter- mines 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 un- availability of witnesses or to circumstances beyond the control of the agency, the Board or the grievant.’’ for ‘‘until the Board has ruled upon the grievance.’’ 1991—Par. (8). Pub. L. 102–138 substituted ‘‘exercised his authority under subsection (a)(3) of section 4010 of this title’’ for ‘‘determined that there is reasonable cause to believe that a grievant has committed a job- related crime for which a sentence of imprisonment may be imposed and has taken action to suspend the grievant without pay pending a final resolution of the underlying matter’’. 1989—Par. (8). Pub. L. 101–167 inserted at end ‘‘Not- withstanding the first sentence of this paragraph, the Board’s authority to suspend such action shall not ex- tend to instances where the Secretary, or his designee, has determined that there is reasonable cause to be- lieve that a grievant has committed a job-related crime for which a sentence of imprisonment may be imposed and has taken action to suspend the grievant without pay pending a final resolution of the underlying mat- ter.’’ § 4137. Foreign Service Grievance Board deci- sions (a) Record; findings of fact and statement of rea- sons 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 meri- torious, 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 false- ly prejudicial character; (2) to reverse a decision denying the grievant compensation or any other perquisite of em- ployment 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 sec- tion 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 rep- resentative (if any). (c) Finality of decisions; judicial review Except as provided in subsection (d), 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 reme- dial 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 rec- ommendation to the Secretary. The Secretary shall make a written decision on the rec- ommendation 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 implemen- tation of the recommendation would be contrary to law or would adversely affect the foreign pol- icy 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 com- munication concerning the grievance between the Secretary and any person involved in the proceedings of the Board. The Secretary shall,