22 U.S.C. § 4140 — Judicial review

Page 1551 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 4140 of such agency personally certifies in writing to the Board that disclosure of the record to the Board and the grievant would adversely af- fect 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 ex- tract of such record unless the reasons speci- fied in the preceding sentence preclude such a summary or extract. (c) Access by grievant If the Board determines that an agency record, or a summary or extract of a record, made avail- able to the Board under subsection (b) is rel- evant and material to the grievance, the agency concerned shall make such record, summary, or extract, as the case may be, available to the grievant. (d) Denial of access as factor in determination of grievance In considering a grievance, the Board may take into account the fact that the grievant or the Board was denied access to an agency record which the Board determines is or may be rel- evant and material to the grievance. (e) Proceedings and decisions of Foreign Service Grievance Board The grievant in any case decided by the Board shall have access to the record of the pro- ceedings and the decision of the 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 re- quested, 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, regula- tion, or Executive order, other than under sec- tion 1214 or 1221 of title 5, and the matter has been carried to final decision under such provi- sion 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 eli- gible for consideration, resolution, and relief under chapter 12 of title 5 or a regulation or Ex- ecutive 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 ei- ther— (A) file a grievance under this subchapter, or (B) initiate in writing a proceeding under another provision of law, regulation, or Execu- tive order that authorizes relief, but not both. (2) A grievant shall be considered to have exer- cised 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 Ex- ecutive 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.) Editorial Notes AMENDMENTS 1991—Subsec. (a). Pub. L. 102–138, § 153(d)(1)(A), (B), re- designated former subsec. (a) as par. (1), redesignated former subsec. (b) as par. (2) of subsec. (a) and sub- stituted ‘‘paragraph (1)’’ for ‘‘subsection (a) of this sec- tion’’ and ‘‘under this subsection’’ for ‘‘under this sec- tion’’, and added par. (3). Subsec. (b). Pub. L. 102–138, § 153(d)(1)(C), added sub- sec. (b). Former subsec. (b) redesignated (a)(2). 1989—Subsec. (a). Pub. L. 101–12 substituted ‘‘1214 or 1221’’ for ‘‘1206’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1991 AMENDMENT Amendment by Pub. L. 102–138 not applicable with re- spect 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 1989 AMENDMENT Amendment by Pub. L. 101–12 effective 90 days fol- lowing Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as a note under section 1201 of Title 5, Government Organization and Employees. § 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 stand- ards set forth in chapter 7 of title 5, if the re- quest 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 sub- section shall not apply to any grievance with re- spect 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 al- leged violation of a law, rule, regulation, or pol- icy 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 ag- grieved 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 dis- trict court of the United States for de novo re- view. (Pub. L. 96–465, title I, § 1110, Oct. 17, 1980, 94 Stat. 2148; Pub. L. 102–138, title I, § 153(e), Oct. 28, Page 1552 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 4141 1991, 105 Stat. 674; Pub. L. 103–236, title I, § 177(b), Apr. 30, 1994, 108 Stat. 414.) Editorial Notes AMENDMENTS 1994—Subsec. (a). Pub. L. 103–236 inserted before pe- riod at end of first sentence ‘‘, if the request for judi- cial 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)’’. 1991—Pub. L. 102–138 designated existing provisions as subsec. (a), inserted provision that subsec. (a) not apply to any grievance with respect to which subsec. (b) ap- plies, and added subsec. (b). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1991 AMENDMENT Amendment by Pub. L. 102–138 not applicable with re- spect 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. JUDICIAL REVIEW OF CERTAIN FOREIGN SERVICE GRIEVANCES Pub. L. 101–246, title I, § 152, Feb. 16, 1990, 104 Stat. 42, provided that: ‘‘For the purposes of judicial review under section 1110 of the Foreign Service Act of 1980 [22 U.S.C. 4140], any recommendation made by the Foreign Service Grievance Board with respect to the tenure of a grievant which was reviewed by the Secretary of State before the date of enactment of the Foreign Rela- tions Authorization Act, Fiscal Years 1988 and 1989 [Dec. 22, 1987], shall be considered to be a final action of the Department of State, and any such recommenda- tion shall be considered to have been made within the authority of the Foreign Service Grievance Board.’’ SUBCHAPTER XI–A—FOREIGN SERVICE INTERNSHIP PROGRAM § 4141. Statement of policy; objectives (a) Statement of policy Consistent with the findings of section 3901 of this title, the Foreign Service of the United States should be representative of the American people. In order to facilitate and encourage the entry into the Foreign Service of individuals who meet the rigorous requirements of the Serv- ice, while ensuring a Foreign Service system which reflects the cultural and ethnic diversity of the United States, intensive recruitment ef- forts are mandated. This is particularly true for Native Americans, African Americans, and His- panic Americans, where other affirmative action and equal opportunity efforts have not been suc- cessful in attracting the ablest applicants for entry into the Foreign Service. The United States remains committed to equal opportunity and to a Foreign Service system operated on the basis of merit principles. (b) Objectives The objective of this subchapter is to strengthen and improve the Foreign Service of the United States through the establishment of a Foreign Service Internship Program. The pro- gram shall promote the Foreign Service as a viable and rewarding career opportunity for qualified individuals who reflect the cultural and ethnic diversity of the United States through a highly selective internship program for students enrolled in institutions of higher education. (Pub. L. 96–465, title I, § 1201, as added Pub. L. 101–246, title I, § 149(b), Feb. 16, 1990, 104 Stat. 39.) § 4141a. Foreign Service Internship Program (a) Establishment In consultation with the heads of other agen- cies utilizing the Foreign Service system, the Secretary of State shall establish a Foreign Service internship program to carry out the ob- jectives of this subchapter in accordance with the provisions of this subchapter. (b) Foreign Service Internship Program The program shall introduce interns to the practice of diplomacy and the unique rewards of the Foreign Service. The program shall consist of three successive summer internships of not less than eight weeks duration in each year to be completed over the course of not more than four years. Special emphasis shall be given to preparing the intern for the Foreign Service ex- amination process. In each year not less than 10 interns shall enter the program. (c) Eligibility to participate (1) Students enrolled full-time in institutions of higher education from groups which are underrepresented in the Foreign Service in terms of the cultural and ethnic diversity of the Foreign Service and for whom equal opportunity and affirmative action recruitment efforts have not been successful in achieving balanced rep- resentation in appointments to the Foreign Service shall be eligible to be interns in pro- grams under this subchapter. (2) An intern shall have successfully com- pleted not less than one academic year of study at an institution of higher education to be ad- mitted to the program. In each succeeding year of participation an intern shall have completed an additional year of undergraduate or graduate study and shall maintain an exemplary record of academic achievement. (3) In selecting interns, the Secretary shall consider only the ablest students of superior ability selected on the basis of demonstrated achievement and exceptional promise whose academic records reflect the requisite standards of performance necessary for the Foreign Serv- ice. (d) Summer internships (1) The primary focus of the first internship shall be the study of international relations, the functions of the Department of State and other agencies which utilize the Foreign Service sys- tem, and the nature of the Foreign Service. The internship shall be held in Washington, District of Columbia, at the Department of State. As ap- propriate, the Secretary shall utilize the per- sonnel and facilities of the George P. Shultz Na- tional Foreign Affairs Training Center. (2) The second internship shall be, principally, an assignment to a specific bureau of the De- partment of State. Emphasis shall be on pro-