BY RAEKA SAFAI
Photo by Sasun Bughdaryan
For more than four decades, the Foreign Service Grievance Board (FSGB) has served as the final, independent administrative check on personnel decisions made by the U.S. foreign affairs agencies.
Congress established the FSGB under Section 1105 of the Foreign Service Act of 1980 as an independent body to hear and resolve disputes involving the employment rights of Foreign Service members, including grievances, disciplinary actions, and certain separations. That independence is central to the integrity of the grievance system.
Since 2025, however, two developments have threatened it: a breakdown in the process for selecting board members and a new Department of Justice interpretation that eliminates the board’s final decision-making authority.
Congress Designed the Foreign Service Grievance Board to Be Independent
Congress carefully prescribed both who could serve on the FSGB and how its members would be selected.
The Foreign Service Act requires board members to be “independent, distinguished citizens of the United States, well known for their integrity” who are neither State Department employees nor members of the Foreign Service. It also requires the Secretary of State to appoint members “from nominees approved in writing” by the foreign affairs agencies covered by the statute and each agency’s exclusive representative, if any. AFSA serves in that role.
For decades, those requirements produced a collaborative selection process. The State Department, acting on behalf of the foreign affairs agencies, and AFSA jointly developed lists of nominees for appointment. Board members have traditionally included retired senior Foreign Service professionals, as well as experienced attorneys, arbitrators, mediators, and judges.
The board historically had approximately 20 members serving staggered two-year terms. That structure preserved institutional knowledge and prevented any single appointment cycle from immediately remaking the entire board.
Half the Board Is Vacant. The Rest Could Soon Follow.
In 2025, that selection process broke down.
The terms of 10 board members expired on Sept. 30, 2025. The agencies neither consulted AFSA nor named replacements, leaving half of the board’s 20 positions vacant as of Oct. 1. AFSA reported that the vacancies were already contributing to a growing caseload and delays in deciding cases.
The terms of the remaining 10 members expire on Sept. 30, 2026. Although it is common for some board members to serve more than one term, none of the current members has received an extension.
The Foreign Service Act still requires appointments to be made from nominees approved by the covered agencies and their exclusive representatives. AFSA remains the recognized exclusive representative at several of the foreign affairs agencies. Yet AFSA was neither consulted nor involved in developing any list of potential nominees for the Secretary’s approval. AFSA also has not been told who will fill the board’s vacant positions or when they will be filled.
The vacancies alone threaten the board’s ability to provide objective and timely review. But the board’s composition is only one part of the problem. A second, even more consequential development threatens the authority of the board itself.
How Independent Review Was Designed to Work
The FSGB’s independence has always depended not only on who serves on the board, but also on the authority behind its decisions.
Before an appeal reaches the board, proposed and final decisions are generally issued within the employee’s own agency. Management officials investigate allegations and propose and implement discipline or other personnel actions. Once a matter reaches the FSGB, however, the agency’s role changes: It is no longer the adjudicator but a litigating party.
The employee and the agency may both engage in discovery, submit evidence and legal arguments, present witnesses when appropriate, and build a formal record. The board then evaluates that record and issues a written decision setting out its findings of fact and the reasons for its ruling.
That separation of roles has always been central to the integrity of the grievance system. The agency whose decision is being challenged does not get the final word on whether its own action was lawful.
Congress also gave the board authority to provide meaningful relief. When a grievance has merit, the board may order corrections to personnel records, restoration of compensation or benefits, retention or reinstatement of a Foreign Service member, back pay, and reasonable attorney fees. With limited exceptions, Congress made clear that the board’s decisions “shall be final, subject only to judicial review.”
Congress carved out limited exceptions to that authority. Certain board decisions involving promotion, tenure, assignment, or recommendations for discipline are submitted to the Secretary for review, and Congress established the circumstances under which the Secretary may reject those recommendations. For most grievances, however—including significant disciplinary and separation cases—the Foreign Service Act makes the board’s decision final, subject only to review by a federal court.
That is the structure the Justice Department now claims is unconstitutional.
DOJ Would Turn Binding Decisions into Recommendations
On Aug. 20, 2026, the Justice Department’s Office of Legal Counsel issued an opinion arguing that because Congress made most FSGB decisions final and did not permit the Secretary of State to overrule them, the board exercises an unconstitutional degree of authority. The Justice Department did not go so far as to say that the board itself is unconstitutional. Instead, it proposed eliminating the board’s final decision-making authority.
Under the Justice Department’s interpretation, the FSGB could continue deciding the merits of a grievance. But when the board rules in favor of a grievant, its decision would effectively become a recommendation to the Secretary rather than a binding final ruling. Any modification or rejection by the Secretary would become the final action.
This would fundamentally change the FSGB, turning an independent body with binding authority into an advisory panel whose rulings could be overturned by the head of the very department being challenged.
What These Changes Mean for Foreign Service Employees
Taken together, excluding AFSA—the exclusive representative—from the process of nominating board members and allowing the Secretary of State to reverse the FSGB’s rulings mark the most significant change to the Foreign Service grievance system since Congress enacted the modern Foreign Service Act in 1980.
The grievance system has not disappeared. Foreign Service employees retain their grievance rights; the FSGB can still conduct proceedings, and judicial review remains available under the Foreign Service Act. Yet the administration’s actions have fundamentally weakened the safeguards built into that system.
The most immediate consequence is that a favorable FSGB decision may no longer end an administrative dispute. Instead, the Secretary would have the final say, giving the agency another opportunity to preserve an action that an independent body rejected.
Employees could still seek judicial review, but that is no substitute for binding relief from the specialized board Congress created to resolve Foreign Service employment disputes. Pursuing a case in federal district court is substantially more expensive, time-consuming, and procedurally complex.
The changes also create broader uncertainty about pending cases, how cases involving other foreign affairs agencies will be treated, and how the Justice Department’s opinion could affect other relevant provisions of the Foreign Service Act.
Why the Stakes Extend Beyond Individual Cases
The consequences extend beyond Foreign Service employees who currently have a grievance or disciplinary case pending before the board. Meaningful independent review shapes conduct throughout the personnel system—often long before a case reaches the FSGB.
Until now, management officials knew that disciplinary actions, evaluations, low rankings, and other personnel decisions could ultimately be reviewed by people outside their chain of command. Agency attorneys knew that factual claims would have to withstand discovery and scrutiny. Deciding officials knew that unsupported or disproportionate actions could be reversed.
That prospect created accountability throughout the personnel system. Removing the finality of the board’s review changes those incentives and weakens an important safeguard.
For more than 45 years, the FSGB has provided a neutral forum where Foreign Service employees could challenge their employing agencies and receive decisions with real force. Its independence has helped sustain a credible personnel system grounded in merit principles.
How AFSA Is Responding
AFSA is responding on several fronts. Where AFSA is the exclusive representative, we will file appropriate labor complaints over the agencies’ exclusion of AFSA from the selection and operation of the FSGB.
We will also continue advising and representing members throughout the grievance process, from the initial agency filing through an appeal before the board.
AFSA is closely monitoring court cases involving similar federal boards because their outcomes could affect the FSGB. We are evaluating whether to file or join litigation, submit friend-of-the-court briefs, or take other legal action to protect Foreign Service employees.
An independent forum is meaningful only if its decisions have force. AFSA will continue fighting to preserve both the FSGB’s independence and its ability to provide enforceable relief.
Raeka Safai is general counsel of the American Foreign Service Association (AFSA), where she advises AFSA’s leadership and represents members on labor-management relations, grievances, disciplinary matters, security clearances, and workplace policies.