§ 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, § 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.)

Amendments

Amendments

2002—Subsec. (a)(1). Pub. L. 107–228, § 314(a)(1), inserted “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 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, § 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, § 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, § 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 Amendment

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.

Miscellaneous

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 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).”

Definitions

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 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, § 143(c), Oct. 28, 1991, 105 Stat. 668.