The Foreign Service Journal, January 2005

6 AFSA NEWS • JANUARY 2005 as well as employees—have the right to appeal to federal court if they do not like the decision. But what happens when an agency refuses to either implement a Grievance Board ruling or go to court? That is never supposed to happen, but USAIDhas nowdone it twice. Only once before in the history of the Grievance Board has an agency refused to imple- ment its decision. Both the federal dis- trict court and the federal appeals court then ruled sharply against the agency’s refusal and in favor of the board and the grievant. In one of the ongoing USAID cases, the Grievance Board ordered the rein- statement of an untenured employee after he had been improperly “selected out.” USAID sought reconsideration from the Grievance Board, and the board recon- firmed and amplified its original decision. USAID still refused to reinstate the employee, contending that its interpre- tation of the law trumped that of the Grievance Board. For that to become valid, the proper procedure for USAID to follow would have been to appeal the decision in court, but USAID refused to do that. Instead, USAIDdid nothing and waited to see what AFSA and the griev- ant would do. Eventually, as the time allowed for appealing the original deci- sion was about to run out, the grievant had to ask the court to order USAID to dowhat the Grievance Board already told it to do: reinstate him. As of Dec. 1, the court had not yet ruled. In the second case, the Grievance Board again ordered USAID to reinstate an untenured employee who had also been improperly “selected out.” Reinstate her immediately or get a stay froma fed- eral court, the Grievance Board ordered: “[USAID] remains obligated to reinstate grievant immediately, as no stay has been issued by the District Court.” Simple, clear, straightforward. But again consid- ering its own judgment superior to the Grievance Board’s, USAIDhas refused to take either action. And it has not, as of Dec. 1, appealed the case to court. In both cases AFSA successfully represented the employee before the Grievance Board. AFSA President John Limbert wrote a letter to the chairman of the Foreign Service Grievance Board, Edward Reidy, noting that the agency is ignoring the board’s decisions and asking the board to act quickly to assert its authority: “I am alarmed at the U.S. Agency for International Development’s disregard for the authority of the Foreign Service Grievance Board. USAID’s refusal to abide by the Grievance Board’s final deci- sions and orders undermines the integri- ty of the Grievance Systemand is of great concern to AFSA. Let me call this action what it is: stonewalling of the Grievance Board by USAID. … “Pursuant to the Foreign Service Act of 1980 (FSA), Congress greatly strength- ened the institution of the Grievance Board and expanded its role. The Board, the agencies, AFSA, and Foreign Service employees have all come to understand and accept a set of operating rules and modalities. In short, everyone has accepted the rules of the game. Certain landmark court decisions and an amendment to the FSA have clearly defined the authority of the Grievance Board with respect to the agencies. Central to the functioning of the Grievance System is the agencies’ oblig- ation either to act on the Board’s decisions and orders or to appeal to court. … “The agencies’ actions represent insti- tutional defiance and overt rejection of the Board’s authority. USAIDhas apparent- ly decided to challenge the Grievance System and the role of the Grievance Board. As far as we can tell, USAID offi- cials have ignored the Board in these two cases because of their view that the Grievance Board has no enforcement authority. In short, these officials seem to believe they face no risk by their behav- ior.” (The full text of the letter is at www.afsa.org/LettertoFSGriev.cfm) The Nov. 9 response fromChairman Reidy noted that the matter “has been, and continues to be, one of grave concern to the Foreign Service Grievance Board. … Be assured that this most significant matter is among the issues that the Board has, even today, under consideration and study. No final consensus on the reso- lution of this troublesome circumstance has yet been reached.” The phrase “grave concern” is a strong one that is seldom used in Grievance Board writings. It is not a question of whether an agency should be able to get rid of poor performers. AFSAdoes not object to that. TheGrievance Board found that, substan- tively and procedurally, USAID’s selec- tion out of these two employees was fatal- ly flawed. USAIDhad argued its position vigorously but lost on the merits. This is an extraordinarily rare finding. Almost all untenured employees lose their Grievance Board appeals against selection out and denial of tenure. It is not only the fate of these two employees that is at stake, but the integrity of the entire grievance system. AFSA argued and won both of these grievance cases for the USAID employ- ees, and AFSA will continue to push for implementation of the Grievance Board decision in both cases. ▫ AID Grievance • Continued from page 1 “I am alarmed at the U.S. Agency for International Development’s disregard for the authority of the Foreign Service Grievance Board. Let me call this action what it is: stonewalling ... “ —John Limbert New Banking Option Citibank has announced the cre- ation of a specialized unit devoted exclusively “to designing and imple- mentingpersonal banking solutions for international corporations and orga- nizations such as the U.S. State Department.” Find out more at www.citibank.com/pboe. ▫