
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 22USC4010]

 
               TITLE 22--FOREIGN RELATIONS AND INTERCOURSE
 
                       CHAPTER 52--FOREIGN SERVICE
 
                 SUBCHAPTER VI--PROMOTION AND RETENTION
 
Sec. 4010. Separation for cause


(a) Authorization of Secretary; hearing prior to separation; waiver of 
        hearing; suspension pending final resolution

    (1) The Secretary may separate any member from the Service for such 
cause as will promote the efficiency of the Service.
    (2) 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 of the Service (other than a United States citizen 
employed under section 3951 of this title who is not a family member) 
who is a member of the Senior Foreign Service or is assigned to a salary 
class in the Foreign Service Schedule and who either (A) is serving 
under a career appointment, or (B) if separation is to be by reason of 
misconduct, is serving under a limited appointment, shall not be 
separated from the Service under this section until the member has been 
granted a hearing before the Foreign Service Grievance Board and the 
cause for separation established at such hearing, unless the member 
waives in writing the right to a hearing 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. 
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. The hearing provided under this paragraph 
shall be 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 law. Section 4140 of this title shall apply to proceedings under 
this paragraph.
    (3) Notwithstanding the hearing required by this section, or 
procedures under any other provision of law, where a member has been 
convicted of a crime for which a sentence of imprisonment may be 
imposed, and there is a nexus to the efficiency of the Service, the 
Secretary, or his designee, may suspend such member without pay pending 
final resolution of the underlying matter, subject to reinstatement with 
back pay if cause for separation is not established in a hearing before 
the Board.
    (4) Any member suspended pursuant to subsection (a)(3) of this 
section shall be entitled to--
        (A) advance written notice of the specific reasons for such 
    suspension;
        (B) a reasonable time, not less than seven days, to answer 
    orally and in writing;
        (C) be represented by an attorney or other representative; and
        (D) a final written decision.

    (5) Any member suspended pursuant to subsection (a)(3) of this 
section shall be entitled to grieve such action in accordance with 
procedures applicable to grievances under subchapter XI of this chapter. 
The Board review, however, shall be limited only to a determination of 
whether the conviction requirements of subsection (a)(3) of this section 
have been fulfilled, and whether there is a nexus between the conduct 
and the efficiency of the Service.
    (6) Notwithstanding the hearing required by paragraph (2), at the 
time the Secretary recommends that a member of the Service be separated 
for cause, that member shall be placed on leave without pay pending 
final resolution of the underlying matter, subject to reinstatement with 
back pay if cause for separation is not established in a hearing before 
the Board.

(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, Sec. 610, Oct. 17, 1980, 94 Stat. 2098; Pub. 
L. 100-204, title I, Sec. 181(d), Dec. 22, 1987, 101 Stat. 1364; Pub. L. 
101-167, title V, Sec. 586(b), Nov. 21, 1989, 103 Stat. 1252; Pub. L. 
101-246, title I, Sec. 143, Feb. 16, 1990, 104 Stat. 36; Pub. L. 102-
138, title I, Sec. 143(a), Oct. 28, 1991, 105 Stat. 668; Pub. L. 103-
415, Sec. 1(h)(2), Oct. 25, 1994, 108 Stat. 4300; Pub. L. 105-277, div. 
G, subdiv. B, title XXIII, Sec. 2313, Oct. 21, 1998, 112 Stat. 2681-827; 
Pub. L. 106-113, div. B, Sec. 1000(a)(7) [div. A, title III, Sec. 328], 
Nov. 29, 1999, 113 Stat. 1536, 1501A-438.)


                               Amendments

    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, Sec. 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, Sec. 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, Sec. 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 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.


                        Expedited Separation Out

    Pub. L. 105-277, div. G, subdiv. B, title XXIII, Sec. 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).''


                   Definition of ``Reasonable Cause''

    Section 586(c) of Pub. L. 101-167 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, 
Sec. 143(c), Oct. 28, 1991, 105 Stat. 668.

                  Section Referred to in Other Sections

    This section is referred to in sections 4011, 4071d, 4136 of this 
title.
