22 U.S.C. § 4010 — Separation for cause; suspension

Page 1462 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 4010 payable without interest from the Foreign Service Retirement and Disability Fund in 3 equal installments, such installments to be paid on January 1 of each of the first 3 cal- endar years beginning after the retirement of the member (except that in special cases, the Secretary of State may accelerate or combine such installments); and (2)(A) for those participants in the Foreign Service Retirement and Disability System, a refund as provided in section 4055 of this title of the contributions made by the member to the Foreign Service Retirement and Disability Fund, except that in lieu of such refund a member who has at least 5 years of service credit toward retirement under the Foreign Service Retirement and Disability System (ex- cluding military and naval service) may elect to receive an annuity, computed under section 4046 of this title, commencing at age 60; and (B) for those participants in the Foreign Serv- ice Pension System, benefits as provided in section 4071 of this title. In the event that a member of the Service has elected to receive retirement benefits under paragraph (2) and dies before reaching age 60 (for participants in the Foreign Service Retirement and Disability System) or age 62 (for partici- pants in the Foreign Service Pension System), his or her death shall be considered a death in service within the meaning of section 4049 of this title. (Pub. L. 96–465, title I, § 609, Oct. 17, 1980, 94 Stat. 2098; Pub. L. 103–236, title I, § 181(a)(3), Apr. 30, 1994, 108 Stat. 417; Pub. L. 105–277, div. G, subdiv. B, title XXIII, § 2312(a), Oct. 21, 1998, 112 Stat. 2681–827.) Editorial Notes AMENDMENTS 1998—Subsec. (a). Pub. L. 105–277, § 2312(a)(2), inserted ‘‘or section 4071d of this title, as appropriate’’ after ‘‘section 4046 of this title’’ in concluding provisions. Subsec. (a)(2)(A). Pub. L. 105–277, § 2312(a)(1), inserted ‘‘or any other applicable provision of chapter 84 of title 5’’ after ‘‘section 4051 of this title’’. Subsec. (b). Pub. L. 105–277, § 2312(a)(4), inserted ‘‘(for participants in the Foreign Service Retirement and Disability System) or age 62 (for participants in the Foreign Service Pension System)’’ after ‘‘age 60’’ in concluding provisions. Subsec. (b)(2). Pub. L. 105–277, § 2312(a)(3), designated existing provisions as subpar. (A), inserted ‘‘for those participants in the Foreign Service Retirement and Disability System,’’ before ‘‘a refund’’, and added sub- par. (B). 1994—Subsecs. (a)(2), (b). Pub. L. 103–236 inserted ‘‘or 4010a’’ after ‘‘4008(b)’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1998 AMENDMENT Pub. L. 105–277, div. G, subdiv. B, title XXIII, § 2312(c), Oct. 21, 1998, 112 Stat. 2681–827, provided that: ‘‘(1) IN GENERAL.—Except as provided in paragraph (2), the amendments made by this section [amending this section and section 4071d of this title] shall take effect on the date of the enactment of this Act [Oct. 21, 1998]. ‘‘(2) EXCEPTIONS.—The amendments made by para- graphs (2) and (3) of subsection (a) and paragraphs (1)(A) and (2) of subsection (b) [amending this section and section 4071d of this title] shall apply with respect to any actions taken under section 611 of the Foreign Service Act of 1980 [22 U.S.C. 4010a] on or after January 1, 1996.’’ SPECIAL ANNUITY FOR CERTAIN FOREIGN SERVICE OFFICERS Pub. L. 95–105, title IV, § 411, Aug. 17, 1977, 91 Stat. 855, as amended by Pub. L. 95–426, title IV, § 412(b), Oct. 7, 1978, 92 Stat. 981, provided that: ‘‘(a) Subject to the conditions established in sub- section (b), any Foreign Service officer— ‘‘(1) who was retired under section 633(a)(1) of the Foreign Service Act of 1946 [former section 1003(a)(1) of this title, see section 4007(a) of this title] before the date of enactment of this section, [Aug. 17, 1977]; ‘‘(2) who was not in class 1, 2, or 3 at the time of re- tirement; ‘‘(3) who was 40 years of age or older at the time of retirement; and ‘‘(4) who had at least 20 years of service, exclusive of credit for unused sick leave, creditable for pur- poses of section 821 of such Act [former section 1076 of this title, see section 4046 of this title] at the time of retirement; shall be entitled to receive retirement benefits in ac- cordance with the provisions of such section 821 [former section 1076 of this title, see section 4046 of this title] in lieu of any retirement benefits which the officer may be entitled to elect under section 634(b)(2) of such Act [former section 1004(b)(2) of this title, see subsec. (b)(2) of this section]. Such retirement benefits shall be paid from the Foreign Service Retirement and Disability Fund and shall be effective on the date the officer reaches age 50, the date of enactment of this section [Aug. 17, 1977], or October 1, 1977, whichever date is lat- est. ‘‘(b) Retirement benefits may not be paid under this section unless (1) any refund of contributions paid to the officer under section 634(b)(2) of the Foreign Serv- ice Act of 1946 [former section 1004(b)(2) of this title, see subsec. (b)(2) of this section] is repaid to the Foreign Service Retirement and Disability Fund, with interest, in accordance with sections 811(d) and (f) of such Act [former section 1071(d) and (f) of this title, see section 4045(d) and (f) of this title]; and (2) the service forming the basis for such retirement benefits is not used as the basis for any other retirement benefits under any re- tirement system. ‘‘(c) In the event that an officer who is entitled to re- tirement benefits under this section dies before reach- ing the age of fifty, but after the date of enactment of this section [Aug. 17, 1977], his or her death shall be considered a death in service within the meaning of section 832 of the Foreign Service Act of 1946 [former section 1082 of this title, see section 4049 of this title], except that no survivor’s annuity (other than a sur- vivor’s annuity which would be payable under the first complete sentence in section 634(b)(2) of such Act [former section 1004(b)(2) of this title, see subsec. (b)(2) of this section] but for the enactment of this section) shall become effective before October 1, 1977. ‘‘(d) An officer entitled to retirement benefits under this section may make the election described in section 821(b) or (f), as appropriate, of the Foreign Service Act of 1946 [former section 1076(b) or (f) of this title, see sec- tion 4046(b) and (f) of this title] at any time before reaching the age of fifty or before the end of the sixty- day period beginning on the date of enactment of this section [Aug. 17, 1977], whichever is later.’’ § 4010. Separation for cause; suspension (a) Authorization of Secretary; right to hearing; attorneys fees and backpay; leave without pay (1) The Secretary may separate any member from the Service for such cause as will promote the efficiency of the Service, including upon re- ceiving notification from the Bureau of Diplo- Page 1463 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 4010 matic Security that such member has engaged in criminal misconduct, such as murder, rape, or other sexual assault. (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 ei- ther— (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 be- fore 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 sen- tence of imprisonment of more than one year may be imposed. (3) If the Board decides that cause for separa- tion has not been established, the Board may di- rect the Department to pay reasonable attor- neys’ fees to the extent and in the manner pro- vided by section 4137(b)(5) of this title. The hear- ing provided under this paragraph shall be con- ducted in accordance with the hearing proce- dures applicable to grievances under section 4136 of this title and shall be in lieu of any other ad- ministrative procedure authorized or required by this or any other Act. Section 4140 of this title shall apply to proceedings under this para- graph. (4) Notwithstanding the hearing required by paragraph (2), at the time that the Secretary de- cides to separate a member of the Service for cause, the member shall be placed on leave with- out 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 Retire- ment and Disability System who is separated under subsection (a) 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 de- termines 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 For- eign Service Retirement and Disability System (excluding military and naval service) may elect, in lieu of such refund, to an annuity, com- puted under section 4046 of this title, com- mencing at age 60. (c) Suspension (1) In order to promote the efficiency of the Service, the Secretary may indefinitely suspend without duties a member of the Service when— (A) the member’s security clearance is sus- pended; or (B) there is reasonable cause to believe that the member has committed a crime for which a sentence of imprisonment may be imposed. (2) Any member of the Service for whom a sus- pension is proposed under this subsection shall be entitled to— (A) written notice stating the specific rea- sons for the proposed suspension; (B) a reasonable time to respond orally and in writing to the proposed suspension; (C) obtain at such member’s own expense representation by an attorney or other rep- resentative; and (D) a final written decision, including the specific reasons for such decision, as soon as practicable. (3) Any member suspended under this sub- section may file a grievance in accordance with the procedures applicable to grievances under subchapter XI of this chapter. (4) If a grievance is filed pursuant to para- graph (3)— (A) the review by the Foreign Service Griev- ance Board shall be limited to a determination of whether the provisions of paragraphs (1) and (2) have been fulfilled; and (B) the Board may not exercise the author- ity provided under section 4136(8) of this title. (5) For each member of the Service suspended under paragraph (1)(A) whose security clearance remains suspended for more than one calendar year, not later than 30 days after the end of such calendar year, the Secretary of State shall re- port to the Committee on Foreign Affairs of the House of Representatives and the Committee on Foreign Relations of the Senate in writing re- garding the specific reasons relating to the du- ration of each such suspension. (6) Any member of the Service suspended under this subsection may be suspended without pay only after a final written decision is pro- vided to such member pursuant to paragraph (2). (7) In this subsection, the term ‘‘reasonable time’’ means— (A) with respect to a member of the Service assigned to duty in the United States, 15 days after receiving notice of the proposed suspen- sion; and (B) with respect to a member of the Service assigned to duty outside the United States, 30 days after receiving notice of the proposed suspension. (Pub. L. 96–465, title I, § 610, Oct. 17, 1980, 94 Stat. 2098; Pub. L. 100–204, title I, § 181(d), Dec. 22, 1987, 101 Stat. 1364; Pub. L. 101–167, title V, § 586(b), Nov. 21, 1989, 103 Stat. 1252; Pub. L. 101–246, title I, § 143, Feb. 16, 1990, 104 Stat. 36; Pub. L. 102–138, title I, § 143(a), Oct. 28, 1991, 105 Stat. 668; Pub. L. 103–415, § 1(h)(2), Oct. 25, 1994, 108 Stat. 4300; Pub. L. 105–277, div. G, subdiv. B, title XXIII, § 2313, Oct. 21, 1998, 112 Stat. 2681–827; Pub. L. 106–113, div. B, § 1000(a)(7) [div. A, title III, § 328], Nov. 29, 1999, 113 Stat. 1536, 1501A–438; Pub. L. 107–228, div. A, title III, § 314(a), Sept. 30, 2002, 116 Stat. 1378; Pub. L. 114–323, title IV, § 415(a), Dec. 16, 2016, 130 Stat. 1933; Pub. L. 117–81, div. E, title LIII, § 5317, Dec. 27, 2021, 135 Stat. 2367; Pub. L. 117–263, div. I, title XCII, § 9202(b)(1), Dec. 23, 2022, 136 Stat. 3864; Pub. L. 118–159, div. G, title LXXV, § 7504, Dec. 23, 2024, 138 Stat. 2546.) Page 1464 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 4010a Editorial Notes AMENDMENTS 2024—Subsec. (c)(6). Pub. L. 118–159 substituted ‘‘this subsection’’ for ‘‘paragraph (1)(B)’’. 2022—Subsec. (a)(1). Pub. L. 117–263 struck out ‘‘decide to’’ after ‘‘The Secretary may’’ and inserted before pe- riod at end ‘‘, including upon receiving notification from the Bureau of Diplomatic Security that such member has engaged in criminal misconduct, such as murder, rape, or other sexual assault’’. 2021—Subsec. (c)(1). Pub. L. 117–81, § 5317(1), sub- stituted ‘‘indefinitely suspend without duties’’ for ‘‘sus- pend’’ in introductory provisions. Subsec. (c)(5), (6). Pub. L. 117–81, § 5317(3), added pars. (5) and (6). Former par. (5) redesignated (7). Subsec. (c)(7). Pub. L. 117–81, § 5317(2), (4), redesig- nated par. (5) as (7), struck out subpar. (A) designation before ‘‘The term’’, substituted ‘‘this subsection, the term’’ for ‘‘this subsection: The term’’, redesignated cls. (i) and (ii) as subpars. (A) and (B), realigned mar- gins, and struck out former subpar. (B) which read as follows: ‘‘The terms ‘suspend’ and ‘suspension’ mean placing a member of the Foreign Service in a tem- porary status without duties.’’ 2016—Pub. L. 114–323, § 415(a)(1), substituted ‘‘Separa- tion for cause; suspension’’ for ‘‘Separation for cause’’ in section catchline. Subsec. (c). Pub. L. 114–323, § 415(a)(2), added subsec. (c). 2002—Subsec. (a)(1). Pub. L. 107–228, § 314(a)(1), in- serted ‘‘decide to’’ after ‘‘may’’. Subsec. (a)(2) to (6). Pub. L. 107–228, § 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 Serv- ice to hearings before the Foreign Service Grievance Board prior to being separated from the Service, sus- pensions 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 rec- ommended 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, § 143(a)(1), sub- stituted ‘‘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, § 143(a)(2), sub- stituted ‘‘suspension’’ for ‘‘suspension, including the grounds for reasonable cause to believe a crime has been committed’’. Subsec. (a)(5). Pub. L. 102–138, § 143(a)(3), substituted ‘‘the conviction requirements of subsection (a)(3) of this section have been fulfilled’’ for ‘‘there exists rea- sonable cause to believe a crime has been committed for which a sentence of imprisonment may be im- posed’’. 1990—Subsec. (a)(2). Pub. L. 101–246 inserted before pe- riod at end of first sentence ‘‘or, notwithstanding sec- tion 4136(8) of this title, unless the member has been convicted of a crime related to the cause for separa- tion, 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 re- versed 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 hear- ing, the Grievance Board shall have the authority to di- rect the Department to pay reasonable attorneys fees to the extent and in the manner provided by section 4137(b)(5) of this title.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1987 AMENDMENT Amendment by Pub. L. 100–204 not applicable with re- spect to any grievance in which the Board has issued a final decision pursuant to section 4137 of this title be- fore Dec. 22, 1987, see section 181(e) of Pub. L. 100–204, set out as a note under section 3946 of this title. UPDATE TO FOREIGN AFFAIRS MANUAL Pub. L. 117–263, div. I, title XCII, § 9202(b)(2), Dec. 23, 2022, 136 Stat. 3864, provided that: ‘‘The Director of Global Talent Management shall— ‘‘(A) update the ‘Grounds for Disciplinary Action’ and ‘List of Disciplinary Offenses and Penalties’ sec- tions of the Foreign Affairs Manual to reflect the amendments made under paragraph (1) [amending this section]; and ‘‘(B) communicate such updates to Department [of State] staff through publication in Department No- tices.’’ EXPEDITED SEPARATION OUT Pub. L. 105–277, div. G, subdiv. B, title XXIII, § 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 en- actment of this Act [Oct. 21, 1998], the Secretary of State shall develop and implement procedures to iden- tify, and recommend for separation, any member of the Foreign Service ranked by promotion boards of the De- partment 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 re- view of the member’s file shall be conducted to deter- mine whether the member should be considered for ac- tion leading to separation. ‘‘(3) PROCEDURES.—The Secretary of State shall de- velop procedures for the internal reviews required under paragraph (2).’’ DEFINITION OF ‘‘REASONABLE CAUSE’’ Pub. L. 101–167, title V, § 586(c), Nov. 21, 1989, 103 Stat. 1252, provided that for purposes of amendments by sec- tion 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 hav- ing been imposed for, a job-related crime, prior to re- peal by Pub. L. 102–138, title I, § 143(c), Oct. 28, 1991, 105 Stat. 668. § 4010a. Reductions in force (a) Authorization and regulations The Secretary may conduct reductions in force and shall prescribe regulations for the sep- aration of members of the Service holding a ca- reer or career candidate appointment under sub- chapter III of this chapter, under such reduc- tions in force which give due effect to the fol- lowing: (1) Organizational changes. (2) Documented employee knowledge, skills, or competencies.