Labor & Employment Law Daily Wrap Up, AGENCY NEWS—Foreign Service Grievance Board cannot exercise unreviewable final authority, OLC determines, (Aug 24, 2026)

By Patricia K. Ruiz, J.D.

OLC advised the State Department to treat the secretary as the final decision-maker in grievance cases.

The Justice Department’s Office of Legal Counsel (OLC) has concluded that statutory provisions giving the Foreign Service Grievance Board final decision-making authority violate the Constitution because the board’s members are inferior officers who are not subject to sufficient oversight by a politically accountable executive official. The opinion advises that the unconstitutional provisions can be severed, allowing the board to continue hearing grievances while returning ultimate authority to the secretary of state. DOJ emphasized in a press release that the opinion restores presidential control over Foreign Service personnel decisions and will leave the secretary with final authority overboard rulings.

Foreign Service Grievance Board. The Foreign Service Grievance Board was created under the Foreign Service Act of 1980 to hear grievances brought by members of the Foreign Service involving employment-related disputes, including disciplinary actions, alleged retaliation, and terminations. Board members are appointed by the secretary of state from candidate lists supplied by covered agencies, serve two-year terms, and may be removed only for cause. Under the statute, most board decisions are deemed final and are subject only to judicial review.

The opinion noted that the board may order a range of remedies, including correction of personnel records, restoration of benefits, retention of Foreign Service personnel facing separation, reinstatement of former employees, back pay, and attorney fees. It said that, in many cases, the Department of State lacks authority under the statute to override those decisions.

Constitutional analysis. OLC concluded that the statutory framework violates the Appointments Clause of Article II. Relying heavily on the Supreme Court’s decision in United States v. Arthrex, Inc., the opinion stated that inferior officers exercising executive power must remain subject to the direction and supervision of a presidentially accountable officer. According to the opinion, members of the Foreign Service Grievance Board qualify as officers because they exercise significant authority under federal law, including conducting hearings, taking testimony, ruling on evidence, and adjudicating disputes. At the same time, the board’s members are appointed by the secretary and protected from removal except for cause. OLC said Congress compounded that arrangement by granting the board authority to issue decisions that, in many circumstances, cannot be reviewed by the secretary or any other politically accountable official.

The opinion highlighted that the board may reverse personnel actions affecting Foreign Service members, including senior officials, and said the statute could allow the board to reinstate an official removed by the president or secretary of state. OLC concluded that such unreviewable authority is inconsistent with Article II’s accountability requirements.

Proposed remedy. Rather than invalidating the grievance system entirely, OLC concluded that the unconstitutional provisions are severable from the rest of the statute. The opinion recommends that the State Department decline to enforce portions of 22 U.S.C. § 4137 that restrict the secretary’s review authority and give the board the final say after the secretary determines a recommendation is contrary to law.

Under OLC’s approach, every board decision finding a grievance meritorious would be treated as a recommendation to the secretary. The secretary would then have authority to review and reject board recommendations, and the secretary’s determination would constitute the final executive branch action. OLC said that approach mirrors the remedy adopted by the Supreme Court in Arthrex and preserves the broader statutory scheme while bringing it into compliance with Article II.

Assistant Attorney General T. Elliot Gaiser said in the release that accountability for U.S. foreign policy “flows from the people to the foreign service through the President” and the secretary of state, adding that the opinion “restores that essential through-line.”

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