With recent steps by the Administration to discharge Foreign Service employees, the issue of what reduction in force (RIF), appeal and severance pay rights apply to Foreign Service employees is timely.
The rights that apply to Foreign Service employees depend on what sort of Foreign Service appointment is involved, in particular distinguishing between Foreign Service Officers (FSOs), Foreign Service Nationals (FSNs) and Foreign Service Limited term appointees (FSLs).
FSOs
FSOs lack the right to directly appeal adverse actions (not including RIFs) to the Merit Systems Protection Board (MSPB), but the MSPB has jurisdiction over Foreign Service whistleblower reprisal claims through the Independent Right of Action appeal. See, e.g., 5 U.S.C. § 7511(b)(6); Ang v. Dept. of State, 103 M.S.P.R. 324 (2006). FSOs appeal their adverse actions to the Foreign Service Grievance Board. See 22 U.S.C. § 4131(a)(1)(A-C). FSOs can raise their EEO complaints through the EEOC federal sector process or through the Foreign Service Grievance Board. See 22 U.S.C. § 4131(a)(1)(H); Smith v. Dept. of State, EEOC Appeal No. 0120055349 (January 3, 2008).
FSOs have a choice between appealing a RIF to the MSPB, or grieving RIFs to the Foreign Service Grievance Board (FSGB). See 22 U.S.C. § 4010a(c); 3 FAM 2589.1. FSGB grievances of RIFs are limited to “cases of reprisal, interference in the conduct of an employee’s official duties, or similarly inappropriate use of the [RIF] authority.” See id.
FSOs who are not otherwise eligible for immediate retirement are eligible for severance pay. See 22 U.S.C. § 4009(b); 3 FAM 6143.
FSNs
FSOs lack the right to directly appeal adverse actions (not including RIFs) to the Merit Systems Protection Board (MSPB), but the MSPB has jurisdiction over Foreign Service whistleblower reprisal claims through the Independent Right of Action appeal. See, e.g., 5 U.S.C. § 7511(b)(6); Ang, 103 M.S.P.R. 324. FSNs have no recourse to the federal-sector EEO complaints process. See, e.g., 29 C.F.R. § 1614.103.(d)(4); de Asutrias v. Dept. of Agriculture, EEOC Request No. 05940251 (May 26, 1994).
The MSPB also lacks jurisdiction over FSN claims regarding reductions in force (RIFs). See Monasteri v. Merit Systems Protection Board, 232 F.3d 1376 (Fed.Cir. 2000) (citing 5 C.F.R. § 351.201(d)); Ang, 103 M.S.P.R. 324. FSNs who are non-U.S. citizens cannot take claims into the Foreign Service Grievance Board. See 22 USC § 4131(a)(1). RIFs affecting FSNs must occur in a manner “that is consistent with local law and [Agency] policy.” See 3 FAM 7732.6(a). FSN RIFs are excluded from the jurisdiction of the internal grievance process to the local chief of mission, and instead have been directed to an internal RIF review panel. See 3 FAM 7744(1); Monasteri, supra.
FSNs who are not otherwise eligible for immediate retirement may potentially be eligible for severance pay, “in strict compliance with local law and/or custom.” See 3 FAM 7549.1-1, 7549.1-4.
FSLs
FSLs have a term appointment of 1-5 years duration. See 22 U.S.C. § 3949(a). The MSPB lacks jurisdiction over FSL adverse action cases. See Doe v. U.S. Agency for International Development, MSPB Docket No. DC-0752-16-0587-I-1 (October 25, 2022) (citing Ang, 103 M.S.P.R. 324). However, the MSPB does have jurisdiction over FSL whistleblower reprisal claims. See Crenshaw v. Broadcasting Board of Governors, 104 M.S.P.R. 475 (2007); Crenshaw v. Broadcasting Board of Governors, MSPB Docket No. DC-1221-06-0097-B-1 (April 6, 2007) (Bogle, A.J.). FSLs are covered by the federal sector EEO complaints process. See, e.g., Complainant v. U.S. Agency for International Development, EEOC Appeal No. 0120132956 (February 28, 2014); Pollis v. U.S. Agency for International Development, EEOC Appeal No. 0120123207 (January 16, 2013).
FSLs who are terminated under a RIF (and thus not for misconduct) do not have Foreign Service Grievance Board appeal rights. See 22 U.SC. §§ 4011, 4131(b)(3); U.S. Information Agency v. Krc, 905 F. 2d 389 (D.C.Cir. 1990); Grievant and Department of State, FSGB 2013-043 (September 30, 2014). Certain special reemployment eligibility rights apply to rehire of FSLs, but hiring under this authority is discretionary for the agency. See 5 U.S.C. §3597; 22 U.S.C.§ 3950; Miller v. U.S. International Development Cooperation Agency, 818 F.Supp. 390 (D.D.C. 1993).
FSLs have been found ineligible for severance pay. See Grievant and Agency for International Development, FSGB 95-96 (April 29, 1996).
If you are a Foreign Service employee and wish to discuss your rights, consider contacting Gilbert Employment Law to request an initial consultation.