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115th Congress } { Rept. 115-34
HOUSE OF REPRESENTATIVES
1st Session } { Part 1
======================================================================
VA ACCOUNTABILITY FIRST ACT OF 2017
_______
March 10, 2017.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Roe of Tennessee, from the Committee on Veterans' Affairs,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1259]
[Including cost estimate of the Congressional Budget Office]
The Committee on Veterans' Affairs, to whom was referred
the bill (H.R. 1259) to amend title 38, United States Code, to
provide for the removal or demotion of employees of the
Department of Veterans Affairs based on performance or
misconduct, and for other purposes, having considered the same,
report favorably thereon without amendment and recommend that
the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 11
Subcommittee Consideration....................................... 11
Committee Consideration.......................................... 11
Committee Votes.................................................. 12
Committee Correspondence......................................... 13
Committee Oversight Findings..................................... 15
Statement of General Performance Goals and Objectives............ 15
Earmarks and Tax and Tariff Benefits............................. 15
Committee Cost Estimate.......................................... 15
Budget Authority and Congressional Budget Office Estimate........ 15
Federal Mandates Statement....................................... 16
Advisory Committee Statement..................................... 16
Constitutional Authority Statement............................... 16
Applicability to Legislative Branch.............................. 16
Statement on Duplication of Federal Programs..................... 16
Disclosure of Directed Rulemaking................................ 16
Section-by-Section Analysis of the Legislation................... 16
Changes in Existing Law Made by the Bill as Reported............. 22
Dissenting Views................................................. 41
Purpose and Summary
H.R. 1259, the ``VA Accountability First Act of 2017,'' was
introduced by Representative David P. Roe, M.D. of Tennessee,
Chairman of the Committee on Veterans' Affairs, on February 28,
2017. This bill would provide the Secretary of the Department
of Veterans Affairs (VA) with the authority to expeditiously
remove, demote, or suspend any VA employee, including Senior
Executive Service (SES) employees, based on performance or
misconduct. It would also: provide improved protections for
whistleblowers; allow the Secretary to reduce an employee's
federal pension if he or she is convicted of a felony that
influenced his or her job at VA; recoup a bonus provided to an
employee who engaged in misconduct or poor performance prior to
receiving the bonus; and allow the Secretary to recoup any
relocation expenses that were authorized for a VA employee only
through the employee's ill-gotten means, such as fraud, waste,
or malfeasance.
Background and Need for Legislation
Section 1. Short title; Table of Contents
This section provides the short title of the bill and the
table of contents.
Section 2. References to Title 38, United States Code
This Section provides that amendments and changes made to
current law in this bill are to title 38, United States Code
(U.S.C.), unless otherwise specified.
Section 3. Removal, demotion, and suspension of employees based on
performance or misconduct
On April 9, 2014, at a full Committee oversight hearing on
patient safety, then-Full Committee Chairman, Representative
Jeff Miller of Florida, stated that, based on information
received by the Committee, forty patients at the Phoenix VA
Health Care System may have died while awaiting medical care.
It was also revealed that the Committee had evidence from
whistleblowers that the Phoenix VA Health Care System kept
multiple sets of records to conceal prolonged wait times for
appointments.
The allegations of several whistleblowers, including Drs.
Samuel Foote and Kathleen Mitchell from Phoenix, shed light on
these issues and improper practices, which resulted in one of
the largest scandals that VA has ever endured. Subsequently, on
August 7, 2014, in part to address the problems related to the
scandal exposed by the Committee, the Veterans Access, Choice
and Accountability Act (``Choice Act'') was signed into law by
President Barack Obama, which, among many other provisions,
gave the Secretary the expedited authority to remove SES
employees based on performance or misconduct.
Since the passage of the Choice Act, the Committee has
continued to uncover many instances of mismanagement or
misconduct by VA employees. Some of these instances include:
allegations of the manipulation of disability claims data at
the Philadelphia Regional Benefit Office;\1\ the continued
construction failures of a new medical center in Aurora,
Colorado that is now many years and a billion dollars over
budget;\2\ allegations of illegal use of government purchase
cards resulting in the waste of billions of dollars
annually;\3\ allegations of a VA employee remaining in her job
after participating in an armed robbery;\4\ numerous instances
of not properly disciplining employees involved with the theft
of opioids or missing prescriptions;\5\ and many other examples
of poor performance or misconduct. Throughout all of these
incidents, it has become clear that VA often does not hold
individuals appropriately accountable for their actions.
---------------------------------------------------------------------------
\1\After 10-month probe, report slams Phila. VA, Philly.com, April
17, 2015 http://articles.philly.com/2015-04-17/news/61222505_1_allison-
hickey-veterans-affairs-benefits-office-diana-rubens.
\2\Aurora VA official: No line-by-line account of where $1 billion
went, The Denver Post, July 1, 2015 http://www.denverpost.com/news/
ci_28415366/va-deputy-secretary-making-eighth-trip-denver-hospital.
\3\VA Put Vets at Risk by Spending Billions Unlawfully,
Whistleblower Says, Government Executive, May 14, 2015 http://
www.govexec.com/contracting/2015/05/va-put-vets-risk-spending-billions-
unlawfully-whistleblower-says/112828/.
\4\VA Worker Gets Job Back Despite Armed Robbery Charge, The Daily
Caller News Foundation, March 22, 2015 http://dailycaller.com/2016/03/
22/va-worker-gets-job-back-despite-armed-robbery-charge/
\5\AP: VA data show low rate of discipline for drug loss, theft,
February 27, 2017 http://www.wfmj.com/story/34610739/ap-va-data-show-
low-rate-of-discipline-for-drug-loss-theft
---------------------------------------------------------------------------
A recent study done by the U.S. Government Accountability
Office (GAO), found that, on average, it takes six months to a
year, if not longer, to remove a permanent civil servant in the
Federal Government.\6\ This problem is epitomized by an example
from 2014 where a VA peer-support specialist took a veteran,
who was an inpatient at the substance abuse clinic of the
Central Alabama Veterans Health Care System, to an off-campus
location where he helped the veteran purchase illegal drugs and
paid for the veteran to partake in other illicit behaviors.\7\
It took VA over a year to even begin the removal process for
this employee.\8\ Furthermore, a recent study by Vanderbilt
University's Center for the Study of Democratic Institutions
found that when they surveyed non-management federal workers
across the government and asked them how often under-
performing, non-management employees are reassigned or
dismissed, 70% said it ``rarely or never happens.''\9\ The
Committee believes that these are clear indications that VA
employees, and the federal system at large, are trapped in a
failed and antiquated civil service system that is in desperate
need of reform.
---------------------------------------------------------------------------
\6\U.S. Government Accountability Office, Federal Workforce:
Improved Supervision and Better Use of Probationary Periods are Needed
to Address Substandard Employee Performance http://www.gao.gov/assets/
670/668339.pdf.
\7\Report: VA employee took recovering vet to crack house,
Montgomery Advertiser, August 16, 2014. http://
www.montgomeryadvertiser.com/story/news/local/alabama/2014/08/17/
report-va-employee-took-recovering-vet-crack-house/14190573/.
\8\A VA employee, a crack house, and a lengthy firing process, The
Washington Post, August 29, 2014. http://www.washingtonpost.com/blogs/
federal-eye/wp/2014/08/29/a-va-employee-a-crack-house-and-a-lengthy-
firing-process/.
\9\The Fiscal Times, Federal Employees: Can't Hire the Best, Can't
Fire the Worst, July 17, 2015. http://www.thefiscaltimes.com/2015/07/
17/Federal-Employees-Can-t-Hire-Best-Can-t-Fire-Worst.
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Therefore, Section 3 would amend title 38, U.S.C., and
create section 719, which would provide the VA Secretary with
the authority to remove, demote, or suspend any title 5, hybrid
title 38, or SES VA employee for performance or misconduct.
Under this Section, the employee would be entitled to advance
notice and the opportunity to respond to the charges, which
cannot exceed ten business days altogether. The Secretary would
then have five business days to make a final determination on
the disciplinary action after reviewing the employee's
response. Once this decision has been made, the employee would
be entitled to appeal his or her removal, demotion, or
suspension to the Merit Systems Protection Board (MSPB), as
long as the appeal is made within 7 business days of receiving
his or her final disciplinary action from the Secretary. An
administrative judge from the MSPB would then have 45 days to
complete an expedited appeal and render a decision. Beyond this
level of appeal, the employee or the VA would be allowed to
petition for further review by the full MSPB and both parties
would be authorized to seek judicial review of the full MSPB's
decision to the U.S. Court of Appeals for the Federal Circuit.
If the administrative judge under the MSPB is unable to
complete the first level of appeal within 45 days, the MSPB
would have 14 days to submit a report to Congress explaining
why it was unable to render a decision within the required
timeframe. In reviewing this appeal, the MSPB, at both the
administrative judge and full MSPB levels, must provide
deference to the Secretary's level of punishment and would be
required to uphold the decision, for both performance and
misconduct charges, if the case is supported by substantial
evidence.
To provide fairness for all employees and streamline the
appeals process, the procedure set up by this Section to
dispute a removal, demotion, or suspension for performance or
misconduct, would supersede any title 5, U.S.C., requirements
and any current collective bargaining agreements that VA has at
both the national and local levels. The Committee understands
this is a major shift, in not only VA's current policy but also
across the entire civil service system, but believes that such
a step is necessary to ensure that the expedited timeline
created by this Section is not bypassed by current grievance
procedures provided in collective bargaining agreements. For
example, the Committee found that, if each procedural step is
followed, VA's master agreement with the American Federation of
Government Employees (AFGE) triggers a 349-day process, and
this time period can be expanded.\10\ The Committee believes
that it would defy common sense to have the expedited
provisions of this bill superseded by a process that can take
349 days or more. Some have contended that the arbitration
process can take longer than a decision by the MSPB and ``. .
.arbitrators tend to be more open to reversing disciplinary
cases in genera1.\11\'' The Committee finds this contrary to
the goal of reforming the VA and providing the avenue to more
expeditiously remove unacceptable employees.
---------------------------------------------------------------------------
\10\Master Agreement Between the American Federation of Government
Employees and the U.S. Department of Veterans Affairs, March 2011.
https://www.va.gov/lmr/docs/agreements/afge/
master_agreement_between_dva_and_afge-fin_march_2011.pdf.
\11\Berry, John V. ``MSBP vs. Arbitration--A Choice for Federal
Employees'' February 25, 2014. http://www.mspblawblog.com/2014/02/mspb-
vs-arbitration-a-choice-for-federal-employees.html.
---------------------------------------------------------------------------
To prevent retaliation, this Section would also protect
whistleblowers by not allowing the Secretary to remove, demote,
or suspend an employee if he or she has filed a complaint with
the Office of Special Counsel (OSC) or under the whistleblower
protections that were enacted into law as part of the
``Continuing Appropriations and Military Construction, Veterans
Affairs, and Related Agencies Appropriations Act of 2017, and
Zika Response and Preparedness Act,'' (P.L. 114-223) until such
complaints are resolved and/or finalized. The Committee
believes that providing these protections is critically
important, as whistleblowers are vital to this Committee's
oversight of VA. Further, the Committee believes that the new
disciplinary process outlined by this Section would provide
constitutionally adequate levels of due process for employees
while still providing the Secretary with the authority to
remove, demote, or suspend any VA employee for poor performance
or misconduct.
Section 4. Reduction of benefits for Department of Veterans Affairs
employees convicted of certain crimes
As a result of the wait list scandal referenced throughout
this report, a new focus was placed on holding VA employees
accountable. When the Department does take appropriate action,
managers are often blocked from making real progress due to the
length and complexity of current disciplinary procedures, which
can allow an employee to elude punishment and an adverse record
of conduct on the employee's employment file by retiring in
lieu of removal. The Committee believes that employees who are
proposed for removal due to their misconduct or poor
performance should not be able to retire or resign without any
consequence and with their full federal pensions. Once
employees file for retirement, irrespective of any proposed
removal from federal service, current law does not permit
actions that would reduce the employee's federal pension and
benefits except in rare and extreme circumstances, such as in
cases of treason or terrorism.
In 1954, Congress enacted what is commonly known as the
``Hiss Act,'' which prohibited the distribution of any federal
retirement pensions to Federal Government employees, as well as
Members of Congress, who were convicted of offenses ``relating
to disloyalty, the national defense and national security,
conflicts of interest, bribery and graft, or for federal
offenses relating generally to the exercise of one's
`authority, influence, power, or privileges as an officer or
employee of the Government.'''\12\ In 1961, Congress amended
the statute to narrow this authority, so that a federal
employee's pension could only be reduced for more serious
offenses that could harm the protection of the United States
such as treason and acts of terrorism.\13\ While the Committee
understands the congressional intent behind setting such a high
bar for recouping an employee's federal pension, the Committee
believes the VA patient access scandal and VA's demonstrated
inability to hold employees accountable in a timely manner--
therefore allowing individuals with the most egregious charges
against them to retire in lieu of punishment--warrants a change
in current civil service laws to ensure that VA employees do
not personally benefit from felonious activity.
---------------------------------------------------------------------------
\12\Congressional Research Service Report No. 96-530, Sept. 12,
2013, page 1, https://www.fas.org-sgp-crs-misc/96-530.pdf (citing P.L.
83-769, 68 Stat. 1142 (Sept. 1, 1954), see now 5 U.S.C. Sec. 8311 et
seq).
\13\P.L. 87-299, 75 Stat. 640 (Sept. 26, 1961), see now 5 U.S.C.
Sec. 8312.
---------------------------------------------------------------------------
Therefore, Section 4 would amend chapter 7 of title 38,
U.S.C., to allow the Secretary to reduce the retirement pay for
any VA employee upon his or her conviction of a felony that
influenced that employee's performance at work. The Secretary
would have the authority to reduce the accrued years of
credible service counted towards an employee's pension by the
number of years in which the employee was found to have
committed acts involved in the felony conviction. Any
contributions made by that employee toward his or her pension
during this period would be returned to the employee in a lump
sum. This Section would not, however, allow the Secretary to
reduce any accrued federal health benefits. Before the
reduction could take place, the employee would be entitled to
notification of the reduction and an opportunity to respond as
well as an appeal of the Secretary's final decision to the
Director of the Office of Personnel Management. The Committee
believes that providing the VA Secretary with this authority
still affords protections to employees by targeting only
instances of felonies that influence the employee's work
performance while also providing a fair process for the
employee to dispute such an action.
Section 5. Authority to recoup bonuses or awards paid to employees of
Department of Veterans Affairs
The Committee's investigations into the wait list scandal
have uncovered evidence that some VA employees and VA senior
managers may have falsified data to improve their performance
metrics to receive bonuses. Regardless of whether falsified
data used to justify the receipt of bonus money was
deliberately manipulated or not, bonuses should be awarded on
the basis of actual, verified performance, and not on an
inaccurate portrayal of one's work.
Following investigations by the Committee, the VA's Office
of Inspector General (VAOIG), and outside media outlets that
brought these VA scandals to light during previous Congresses,
Committee Members questioned the large bonuses that were issued
to many VA employees, especially many senior VA leaders who
oversaw facilities where ``secret'' appointment wait-lists were
used. Committee Members questioned VA at several Committee
hearings from April 2014 to August 2014 on whether the
Secretary would have the legal authority to recoup any
performance awards or bonuses issued to VA employees if the
Secretary deemed their performance, particularly performance
based on manipulated or inaccurate data, merited the
recoupment. On June 17, 2014, Committee staff was told at a
briefing by Mr. Samuel Retherford, VA's then-Principal Deputy
Assistant Secretary for Human Resources and Administration,
that the Secretary had the authority to rescind any bonus or
performance award from an SES employee within 12 months of it
being awarded to the employee. Later, at a June 20, 2014, full
Committee oversight hearing entitled, ``A Review of Awarding
Bonuses to Senior Executives at the Department of Veterans
Affairs,'' the Honorable Gina Farrisee, VA's then-Assistant
Secretary for Human Resources and Administration, informed
Members of the Committee that the Secretary did not have the
authority to rescind any bonus or performance award from any
employee after the award had been issued.\14\
---------------------------------------------------------------------------
\14\House Committee on Veterans' Affairs hearing, ``A Review of
Awarding Bonuses to Senior Executives at the Department of Veterans
Affairs,'' June 20, 2014, https://edit-republicans-veterans.house.gov/
sites/republicans.veterans.house.gov/files/113-75.PDF.
---------------------------------------------------------------------------
On July 15, 2014, following the conflicting statements made
by VA employees as to whether the Secretary had the authority
to rescind a performance award, then-Chairman Representative
Jeff Miller of Florida sent then-Acting Secretary Sloan Gibson
a letter explicitly inquiring whether VA had the authority to
rescind a bonus already issued to an employee. Mr. Gibson
replied via letter on August 19, 2014, that ``the Department
does not have the authority to rescind performance awards
issued in accordance with policies and paid to employees for
performance ratings that are final.''
The Committee believes that if a VA employee acts
unbecoming of VA and its mission to veterans, as determined by
the Secretary, then the Secretary should have the authority to
rescind any bonus or performance award issued to that employee.
This Section would authorize the recoupment of any bonus if the
Secretary determines that the employee engaged in misconduct or
poor performance and that the bonus would not have been paid to
the employee had the Secretary been made aware of the
misconduct or poor performance prior to the payment of the
award. Under this Section, the employee would be provided pre-
recoupment notice and an opportunity to respond to the
Secretary's recoupment order. This pre-recoupment step, the
Secretary's review of the employee's response, and the final
decision would have to be completed within 15 business days
from the initial notice of the proposed recoupment. Following
the Secretary's decision, the employee would have seven days to
appeal such decision to another Federal Government agency or
department. The head of such agency or department would be
required to make a final decision on this appeal within 30 days
of the filing of the appeal. In congruence with the previous
Section, the Committee believes that the new procedures set up
in this Section would provide the appropriate level of
expediency while still maintaining a fair process for employees
to dispute the recoupment.
Section 6. Authority to recoup relocation expenses paid to or on behalf
of employees of Department of Veterans Affairs
Relocation incentives and expenses have long been
considered as a positive benefit to relocate VA employees to
locations that they would not otherwise be inclined to, and a
way to defray the costs associated with this change of duty
station. In its final report, entitled ``Inappropriate Use of
Position and the Misuse of the Relocation Program and
Incentives,'' the VAOIG concluded that two SES employees from
VA's Veterans Benefit Administration (VBA), Ms. Diana Rubens
and Ms. Kimberly Graves, ``. . . inappropriately used their
positions of authority for personal and financial benefit when
they participated personally and substantially in creating
opportunities for their own transfers to positions they were
interested in filling.''\15\ In doing so, the VAOIG concluded
that they orchestrated and financially benefitted from their
moves and that VA should examine whether a bill of collection
should be issued to Ms. Rubens and Ms. Graves for the
relocation expenses associated with their moves. The amount of
money that the VAOIG recommended VA collect from Ms. Rubens and
Ms. Graves was $274,019 and $129,468, respectively.
---------------------------------------------------------------------------
\15\Report no. 15-02997-526, VA Office of the Inspector General,
``Administrative Investigation: Inappropriate Use of Position and
Misuse of Relocation Program and Incentives,'' September 28, 2015,
http://www.va.gov/oigtoubs/VAOIG-15-2997-526.pdf.
---------------------------------------------------------------------------
In its written response to the report, VA concurred with
the VAOIG's recommendation to determine whether bills of
collection should be issued to recover unjustified relocation
incentives paid to Ms. Rubens and Ms. Graves, but failed to
take action to rescind any of the relocation expenses paid out
to both of these SES employees. VA later claimed that there was
never an attempt to recoup these funds, because, during the
review process of potential disciplinary action against Ms.
Rubens and Ms. Graves, then-VA Deputy Secretary Sloan Gibson
concluded that he did not agree with the VAOIG's assessment
that either employee had misused their authority to orchestrate
their own transfers for financial gain.
During a December 9, 2015, Committee hearing entitled,
``Fact Check: An End of Year Review of Accountability at the
Department of Veterans Affairs,'' Mr. Gibson did not make it
clear if VA had the explicit authority to recoup relocation
expenses paid to VA employees if it was determined that they
received these taxpayer-funded expenses through ill-gotten
means.\16\ The Committee received similarly vague and unclear
statements from VA officials in subsequent follow-up requests
for information and during questioning of a VA witness at an
April 14, 2016, Subcommittee on Economic Opportunity
legislative hearing in the 114th Congress on H.R. 4138, which
contained language similar to that in this Section.\17\
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\16\House Committee on Veterans Affairs, ``Fact Check: An End of
Year Review of Accountability at the Department of Veterans Affairs,''
December 9, 2015.
\17\House Committee on Veterans Affairs Subcommittee on Economic
Opportunity, ``Legislative Hearing On: H.R. 748; H.R. 2551; H.R. 3286;
H.R. 3419; H.R. 4138; And 4 Draft Bills,'' April 14, 2016.
---------------------------------------------------------------------------
To address VA's uncertainty of its authority to recoup
relocation expenses issued to a VA employee, this Section was
proposed to give the Secretary the clear authority to recoup
any taxpayer funds associated with a VA employee's relocation
when the Secretary deems it necessary. This Section would
authorize the Secretary to recoup all, or a portion, of any
funding provided for relocation expenses authorized under
section 5724 or 5724a of title 5, U.S.C., if the Secretary
determines that the expenses were not lawfully authorized or
that the employee committed an act of fraud, waste, or
malfeasance that influenced the authorization of such expenses.
In a timeline that aligns with that provided for the recoupment
of bonuses in Section 5 of this bill, employees would be
entitled to notification of the proposed recoupment and an
opportunity to respond to the Secretary's recoupment order.
Following the Secretary's decision, the employee would have
seven days to appeal such decision to another Federal
Government agency or department. The head of such agency or
department would be required to make a final decision on this
appeal within 30 days of filing. The Committee believes that
this Section would provide the Secretary with yet another
needed tool to hold VA employees accountable while still
providing appropriate levels of due process rights through the
review by a third party entity to ensure that this authority is
not abused.
Section 7. Time period for response to notice of adverse actions
against supervisory employees who commit prohibited personnel
actions
Essential to the Committee's oversight efforts, is the
information it receives from veterans and VA employees who
bring problems and concerns regarding the Department to the
Committee's attention. Unfortunately, as a result of VA
employees' anonymous or public allegations of wrongdoing, many
individuals report retaliation at the hands of supervisors,
senior managers, and other VA employees. This retaliation
discourages employees from stepping forward to bring problems
and concerns to light, leading to a pernicious and toxic
environment where problems are disguised and not fully
addressed. As a result, veterans suffer the consequences.
The ``Continuing Appropriations and Military Construction,
Veterans Affairs, and Related Agencies Appropriations Act,
2017, and Zika Response and Preparedness Act'' (P.L. 114-223)
created section 733 of title 38, U.S.C., which authorized a new
whistleblower process that provides an opportunity for
whistleblowers to resolve issues at the lowest level but also
prescribed a plan for swift resolution if lower-level attempts
are not possible. As part of these new protections, language
was inserted to provide for a swift accountability procedure
for those who have retaliated against whistleblowers. This
Section would amend section 733 of title 38, U.S.C., to match
the pre-notification requirements and timelines with the pre-
notification timelines that would be in place for discipline
under Section 3 of this bill.
Section 8. Direct hiring authority for medical center directors and
VISN directors
The Committee recognizes a need for stable, permanent
leadership at VA medical centers (VAMCs), which have
experienced high levels of turnover in recent years. For
example, a March 2015 VA Fact Sheet claimed that, from June
2014 to March 2015, 91 percent of VA medical facilities had new
leaders or leadership teams installed and an October 2015 CNN
interview with then-VA Deputy Secretary, Sloan Gibson, claimed
that more than half of Veterans Health Administration (VHA)
senior leaders had turned over in the previous two years.
Considering that VA continues to rank among the worst-
performing large Federal agencies in terms of effective
leadership and that approximately 60 percent of VA employees
are over the age of 45, the Committee is concerned that VA
lacks a dependable pipeline of emerging leaders and will
continue to struggle to recruit high-performing employees to
fill critical leadership roles.\18\\19\ Furthermore, VA's
hiring and onboarding processes are notoriously slow, sometimes
taking upwards of six months to bring on new hires, which can
create and contribute to vacancies for VAMC and Veterans
Integrated Service Network (VISN) director positions.\20\ An
equally important step to building strong leadership within the
Department is to ensure that leaders are well-qualified. As of
May 2016, only 16 of 140 VA medical center directors had
clinical training.\21\ Without experienced, well-qualified
leaders at the helm, facility and VISN staffs lack proper
guidance and oversight when making decisions regarding hospital
management, clinical operations, and patient care. To address
these issues, Section 8 of the bill would authorize VA to
directly appoint individuals to VAMC and VISN Director
positions if they have a demonstrated ability in the medical
profession, health care administration, or health care fiscal
management.
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\18\Partnership for Public Service, ``Best Places to Work Large
Agency Rankings,'' Accessed March 9, 2017. http://bestplacestowork.oru/
BPTW/rankings/overall/large.
\19\House Committee on Veterans Affairs Subcommittee on Health and
Subcommittee on Economic Opportunity Hearing, ``Legislative Hearing on
draft legislation to improve the authority of the Secretary of Veterans
Affairs to hire and retain physicians and other employees of the
Department of Veterans Affairs,'' March 16, 2016.
\20\Ibid.
\21\Ibid.
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Section 9. Time periods for review of adverse actions with respect to
certain employees
Title 38, U.S.C., authorizes special rules and regulations
for hiring, paying, and disciplining certain medical
professionals within VA. Section 7401(1) of title 38, U.S.C.,
specifies that these new rules apply to physicians, dentists,
podiatrists, chiropractors, optometrists, registered nurses,
physician assistants, and expanded-function dental auxiliaries.
Current law requires that if any of these employees face a
major adverse action, defined as a removal, suspension, or
demotion, that is the result of a question of professional
conduct or competence, that employee has the right to either
dispute this action through grievance procedures provided
through collective bargaining agreements or through VA's
internal Disciplinary Appeals Board.
In the interest of providing an equal procedure for all
adverse actions, this Section would amend sections 7461, 7462
and 7463 of title 38, U.S.C., to match the process for
disputing adverse actions under these sections to the pre-
notification and response procedures provided in Section 3 of
this bill for non-title 38 employees. This would include a ten
business day period prior to taking adverse action and a
requirement that the Disciplinary Appeals Board complete its
review of the employee's appeal within 45 business days of its
filing. In conjunction with Section 3, this Section would also
eliminate the ability for bargaining unit employees to use any
current grievance procedures to dispute these actions.
Additionally, this Section would subject all disciplinary
actions for title 38 employees related to professional conduct
or competence through this expedited procedure regardless of if
they are considered major adverse actions. The Committee
believes that the health and safety of veterans should be
paramount and that it is appropriate to have an expedited
process for actions related to actions that directly impact
patient care through professional conduct or competence. This
expedited process also provides greater fairness for employees
who have been wrongly accused of an egregious action so that
they can return to their service to veterans if they are
absolved of any wrongdoing.
Hearings
There were no Subcommittee or full Committee hearings held
in relation to H.R. 1259.
Subcommittee Consideration
There was no Subcommittee consideration of H.R. 1259.
Committee Consideration
On March 8, 2017, the full Committee met in open markup
session, a quorum being present, and ordered H.R. 1259 be
reported favorably to the House of Representatives by voice
vote. During consideration of the bill, the following
amendments were considered:
An amendment offered by Representative Tim Walz of
Minnesota, Ranking Member of the Committee on Veterans'
Affairs, that would have removed Sections 3 and 9 of
the base text and replaced them with different and
separate processes for removing both front line and SES
employees. This process for SES employees would allow
them to appeal any removal, reprimand, suspension,
involuntary reassignment or demotion internally at VA
but would not have a finite timeline on how long the
individual has to respond to a proposed action and
allows the Secretary to set up an internal grievance
process for such disputes. Under this amendment,
Secretary would have the authority to remove any other
VA employee for performance or misconduct, but the
performance would be limited to 2-year window of the
proposed disciplinary action, and would maintain the
higher evidentiary standard of preponderance of the
evidence to sustain the disciplinary action upon appeal
for misconduct charges. Further, the timelines for
processing disputes under this process would be open-
ended, the necessity for performance improvement plans
would remain in place, and the grievance process
through collective bargaining agreements would also
remain intact. The amendment was defeated by voice
vote.
An amendment in the nature of substitute, offered by
Representative Ann McLane Kuster of New Hampshire,
would have maintained the base text of the bill but
would have reinserted the right to grieve any proposed
actions through the collective bargaining agreements
between VA and federal employee unions. The amendment
would ensure that these grievance procedures would
still be an option for collective bargaining unit
employees to dispute removals, demotions, or
suspensions. The amendment in the nature of a
substitute was defeated by voice vote.
An amendment in the nature of a substitute, offered
by Representative Mark Takano of California, that would
replace the base text of the bill with a new procedure
that would authorize the Secretary to suspend an
employee, with a subsequent option for removal, for any
performance or misconduct that is a threat to public
health or safety. This would be an additional authority
to other disciplinary authorities in title 38, U.S.C.,
and title 5, U.S.C. Under this amendment in the nature
of a substitute, the Secretary would be authorized to
suspend without pay an employee who is determined to be
a threat to public health or safety and then would
allow the Secretary to remove the employee, only after
an investigation is completed during his or her
suspension, which leads the Secretary to determine they
are a threat. The employee would be entitled to, after
his or her suspension, 30-days' notice with the
charges, and an additional 30 days to respond, which
can be expanded if the charges are amended. There would
be no timeline on the Secretary's review or any change
to an appeal process. The amendment in the nature of a
substitute was defeated by voice vote.
A motion by Representative Mike Coffman of Colorado to
report H.R. 1259 favorably to the House of Representatives was
agreed to by voice vote.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, no recorded votes were taken on
amendments or in connection with ordering H.R. 1259 reported to
the House.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives are to provide new accountability
procedures for employees at the Department of Veterans Affairs
while maintaining their constitutional due process rights as
Federal Government employees.
Earmarks and Tax and Tariff Benefits
H.R. 1259 does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI of the Rules of the House of
Representatives.
Committee Cost Estimate
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
this bill. However, clause 3(d)(3)(B) of that Rule provides
that this requirement does not apply when the Committee has
included in its report a timely submitted cost estimate of the
bill prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974. The Committee has requested but not received a cost
estimate for this bill from the Director of the Congressional
Budget Office. The Committee believes that enactment of this
bill would result in no additional direct spending over the
2018-2022 period. Assuming the appropriation of authorized
amounts, the Committee estimates that the legislation would
also have a discretionary cost of $2 million over the 2018-2022
period.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
but not received a cost estimate for this bill from the
Director of Congressional Budget Office. The Committee has
requested but not received from the Director of the
Congressional Budget Office a statement as to whether this bill
contains any new budget authority, spending authority, credit
authority, or an increase or decrease in revenues or tax
expenditures.
Federal Mandates Statement
With respect to the requirements of Section 423 of the
Congressional Budget and Impoundment Control Act (as amended by
Section 101(a)(2) of the Unfunded Mandate Reform Act, P.L. 104-
4), the Committee has requested but not received from the
Director of the Congressional Budget Office a statement as to
whether the provisions of the reported bill include unfunded
mandates.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act would be created by H.R.
1259.
Constitutional Authority Statement
Pursuant to Article I, section 8 of the United States
Constitution, H.R. 1259 is authorized by Congress' power to
``provide for the common Defense and general Welfare of the
United States.''
Applicability to Legislative Branch
The Committee finds that H.R. 1259 does not relate to the
terms and conditions of employment or access to public services
or accommodations within the meaning of section 102(b)(3) of
the Congressional Accountability Act.
Statement on Duplication of Federal Programs
Pursuant to clause 3(c)(5) of rule XIII of the Rules of the
House of Representatives, the Committee finds that no provision
of H.R. 1259 establishes or reauthorizes a program of the
Federal Government known to be duplicative of another Federal
program, a program that was included in any report from the
Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.
Disclosure of Directed Rulemaking
Pursuant to section 3(i) of H. Res. 5, 115th Cong. (2017),
H.R. 1259 would require the Secretary of the Department of
Veterans Affairs, in consultation with the Office of Personnel
Management, to prescribe regulations that may provide for the
payment to the spouse or children of any individual whose
federal annuity may be reduced by Section 4 of the bill.
Section-by-Section Analysis of the Legislation
Section I. Short title; Table of Contents
Section 1 cites the short title of H.R. 1259, to be the
``VA Accountability First Act of 2017'' and provides the table
of contents for the bill.
Section 2. References to Title 38, United States Code
Section 2 states that, except as otherwise expressly
provided, whenever in this Act that there is an amendment to,
or repeal of, a section or other provision, the reference shall
be considered to be made to a section or other provision of
title 38, U.S.C.
Section 3. Removal, demotion, or suspension of employees based on
performance or misconduct
Section 3(a) would amend subchapter I of chapter 7 of title
38, U.S.C., to create a new section 719 entitled, ``Employees:
removal, demotion, or suspension based on performance or
misconduct.''
Sec. 719(a) would provide the Secretary with the authority
to remove, demote, or suspend any VA employee for poor
performance or misconduct.
Sec. 719(b) would require that if an individual has been
demoted under section 719(a), that his or her new annual rate
of pay shall begin on the date of his or her demotion. The
section would further require that if the individual appeals
that demotion, he or she would not be allowed to remain on any
category of paid leave during appeal.
Sec. 719(c) would require the Secretary, by no later than
thirty days after removing, demoting, or suspending an
individual under section 719(a) or under chapter 74 of title
38, U.S.C., who is a employed in a senior executive position,
to submit a written notification of the removal, demotion, or
suspension to the House and Senate Committees on Veterans'
Affairs and to each Member of Congress representing a district
in the State or territory where the facility in which the
individual was employed immediately before being removed,
demoted, or suspended. Sec. 719(c) would require that such
notice include the job title of the individual, the location
where the individual was employed immediately before being
removed, demoted, or suspended, the proposed action, and the
reason for such removal, demotion, or suspension. This section
would also require that not later than 30 days after the last
day of the fiscal year, that the Secretary submit a report to
the House and Senate Committees on Veterans' Affairs listing
all removals, demotions, and suspensions under this section or
under section 74 of title 38, U.S.C., for all other VA
employees.
Sec. 719(d) would require that the procedures set up by
section 7513(b) and chapter 43 of title 5, U.S.C., shall apply
to any removal, demotion, or suspension under this section,
except that the period for notice and response, which includes
the advance notice period and the response period of section
7513 of title 5, U.S.C., shall not exceed a total of 10
business days. Sec. 719(d) would also not apply procedures
under section 7121 of title 5, U.S.C., in respect to any
removal, demotion, or suspension under this section. This
section would also require the Secretary to issue a final
decision with respect to a removal, demotion, or suspension
under this section not later than five business days after
receiving the individual's response; or in the case of a
proposed removal, demotion, or suspension to which the
individual does not respond, not later than fifteen business
days after the Secretary provides notice of such removal,
demotion, or suspension authorized under this section. The
procedures under chapter 43 of title 5, U.S.C., would not apply
under this section. Sec. 719(d) would also authorize
individuals to appeal their removal, demotion, or suspension to
the MSPB under 7701(b)(1) of title 5, U.S.C., only if they file
such appeal within seven days of their removal, demotion, or
suspension.
Sec. 719(e) would set up an expedited process for reviewing
appeals made by employees, who are removed, demoted, or
suspended under subsection (d)(4)(a) of this section, to an
administrative judge of the MSPB. Under this procedure the
administrative judge would have 45 days to issue a decision
after an appeal has been filed. Notwithstanding section
7701(c)(1)(B) of title 5, U.S.C., the administrative judge
shall uphold the decision of the Secretary to remove, demote,
or suspend an employee if the decision is supported by
substantial evidence. If the decision is supported by
substantial evidence, the administrative judge would not be
allowed to mitigate the penalty by the Secretary.
The decision of the administrative judge may be appealed to
the MSPB, only if such an appeal is made not later than seven
business days after the date of the decision of the
administrative judge. In any case in which the administrative
judge cannot issue a decision in accordance with the 45-day
requirement, the MSPB shall, not later than fourteen business
days after the expiration of the 45-day period, submit to the
House and Senate Committees on Veterans' Affairs, a report that
explains the reasons why a decision was not issued in
accordance with the requirement. A decision of the MSPB may
also be appealed to the United States Court of Appeals for the
Federal Circuit pursuant to section 7703 of title 5, U.S.C. An
appeal to the United States Court of Appeals for the Federal
Circuit may only be made if such appeal is made not later than
seven business days after the date of the decision of the MSPB.
Sec. 719(e) would also require any decision by the Court to
be in compliance with section 7462(f)(2) of title 38, U.S.C.,
and would not allow the MSPB to stay any removal or demotion
under this section. This subsection would also not allow any
individual to receive any pay, awards, bonuses, incentives,
allowances, differentials, student loan repayments, special
payments, or benefits related to the employment of the
individual by the Department from the beginning date of his or
her appeal of removal from civil service through the date that
the United States Court of Appeals for the Federal Circuit
issues a final decision.
This subsection would also require the Secretary, to the
maximum extent practicable, to provide the MSPB such
information and assistance as may be necessary to ensure an
appeal under this subsection is expedited and would require
that the employee is entitled to back pay if the employee
prevails on appeal.
Sec. 719(e) would also require that this subsection
supersede any collective bargaining agreement to the extent
that such an agreement conflicts with this subsection.
Sec. 719(f) would preclude VA from removing, demoting, or
suspending an individual under this section if the individual
is seeking corrective action from the Office of Special Counsel
based on alleged prohibited personnel practices as described in
section 2302(b) of title 5, U.S.C., without the approval of the
Special Counsel under section 1214(f) of title 5, U.S.C. This
subsection would also not allow the Secretary to remove,
demote, or suspend any individual who has filed a whistleblower
complaint, as is defined in section 731 of title 38, U.S.C.,
until a final decision with respect to the whistleblower
complaint has been made.
Sec. 719(g) would, notwithstanding any other provision of
law, authorize the Special Counsel to terminate an
investigation of a prohibited personnel practices alleged by a
VA employee or former VA employee once the Special Counsel
provides a written statement explaining the reasons for the
termination of the investigation. Such written statement would
not be admissible as evidence in any judicial or administrative
proceeding without the consent of the employee or former
employee.
Sec. 719(h) would require the Secretary, to the maximum
extent feasible, to fill the vacancy arising as a result of
such removal or demotion under subsection (a).
Sec. 719(i) would provide definitions of terms used in the
new section 719.
Section 3(b) would repeal section 713 of title 38, U.S.C.
Section 3(c) would make clerical and conforming amendments.
Section 3(d) would provide a temporary exemption from
certain limitations on initiation from removal from the Senior
Executive Service. Section 3(d) would allow for, during the
120-day period beginning on the date of enactment of this Act,
an action to remove an individual from the Senior Executive
Service at the Department of Veterans of Affairs
notwithstanding section 3592(b) of title 5, U.S.C.
Section 4. Reduction of benefits for Department of Veterans Affairs
employees convicted of certain crimes
Section 4(a) would amend subchapter I of chapter 7 of title
38, U.S.C., to create a new section 721, entitled ``Reduction
of benefits of employees convicted of certain crimes.''
Sec. 721(a) would allow the Secretary to reduce any VA
employee's annuity if the employee is removed from his or her
position for performance or misconduct, and the Secretary
determines that the individual is convicted of a felony that
influenced the individual's performance while employed at VA.
Before such order is made, the individual would be afforded a
notice of the proposed order; an opportunity to respond to the
proposed order not later than 10 business days following
receipt of the notice; and an issuance of a final order by the
Secretary not later than 5 business days after the Secretary
receives the response of the individual. The individual would
also have an opportunity to appeal the Secretary's final order
to the Director of the Office of Personnel Management within 7
days of the final issuance by the Secretary. The Director of
the Office of Personnel Management would be required to make a
final decision with respect to the appeal within 30 business
days of receiving the appeal.
Sec. 721(b) would apply the same procedures as prescribed
in subsection 721(a) for the reduction of a VA employee's
annuity upon conviction of certain crimes if the individual
leaves or retires from employment at the Department prior to
the issuance of a final decision with respect to a removal for
performance of misconduct.
Sec. 721(c) would require the Director of the Office of
Personnel Management to recalculate an individual's annuity not
later than 37 days after the Secretary issues a final order
under subsections 721(a) or (b).
Sec. 721(d) would entitle an individual whose annuity is
reduced under subsections 721(a) or (b) to be paid so much of
the individual's lump-sum credit as is attributable to the
period of covered service.
Sec. 721(e) would require the Secretary, in consultation
with the Office of Personnel Management, to prescribe
regulations that may provide for the payment to the spouse or
children of any individual referred to in subsections 721(a) or
(b) of any amounts that (but for this subsection) would
otherwise have been non-payable by reason of such subsections.
Sec. 721(f) would prescribe definitions for this new
section 721.
Section 4(b) would apply to any action of removal of an
employee of the Department of Veterans Affairs under section
719 or 7461 of title 38, U.S.C., commencing on or after the
date of enactment.
Section 5. Authority to recoup bonuses or awards paid to employees of
the Department of Veterans Affairs
Section 5(a) would amend subchapter I of chapter 7 of title
38, U.S.C., to create a new section 723 entitled, ``Recoupment
of bonuses or awards paid to employees of Department.''
Sec. 723(a) would allow the Secretary to issue an order
directing a VA employee to repay the amount, or portion of the
amount, of any award or bonus paid to the employee under title
5, U.S.C., including chapters 45 of 53 of such title, if the
Secretary determines that the individual engaged in misconduct
or poor performance prior to the payment of the award or bonus,
and that such award or bonus would not have been paid, in whole
or in part, had the misconduct or poor performance been known
prior to payment of the award. Prior to repayment of the award,
the employee would be afforded notice of the proposed order and
an opportunity to respond not later than 10 business days after
receiving the order. The Secretary would be required to issue a
final decision not later than 5 business days after receiving
the individual's response.
Sec. 723(b) would provide the individual with the
opportunity to appeal the order to another department or agency
of the Federal Government within 7 days of receiving the final
issuance of the Secretary.
Sec. 723(c) would require the head of the applicable
department or agency of the Federal Government to make a final
decision with respect to the appeal within 30 business days
after receiving the appeal.
Section 5(b) would make a clerical amendment to add this
new section to the table of sections at the beginning of such
chapter.
Section 5(c) would require that subsection 723 of title 38,
U.S.C., as added by subsection (a), shall apply with respect to
an award or bonus paid by the Secretary to an employee of the
Department of Veterans Affairs on or after the date of
enactment of this Act.
Section 5(d) would declare that nothing in this Act or the
amendments made by this Act may be construed to modify the
certification issued by the Office of Personnel Management and
the Office of Management and Budget regarding the performance
appraisal system of the Senior Executive Service of the
Department of Veterans Affairs.
Section 6. Authority to recoup relocation expenses paid to or on behalf
of employees of Department of Veterans Affairs
Section 6(a) would amend subchapter I of chapter 7 to
create a new section 725 entitled, ``Recoupment of Relocation
Expenses Paid on Behalf of employees of Department.''
Sec. 725(a) would allow the Secretary, notwithstanding any
other provision of law, to issue an order directing an employee
of the Department to repay the amount, or portion of the
amount, paid to or on behalf of the employee under title 5,
U.S.C., for relocation expenses, including any expenses under
section 5724 or 5724(A) of such title, if the Secretary
determines that the relocation expenses were not lawfully
authorized or that the employee committed an act of fraud,
waste, or malfeasance that influenced the authorization of the
relocation expenses. Prior to repayment of the award, the
employee would be afforded notice of the proposed order and an
opportunity to respond not later than 10 business days after
receiving the order. The Secretary would be required to issue a
final decision not later than 5 business days after receiving
the individual's response.
Sec. 725(b) would provide the individual with the
opportunity to appeal the order to another department or agency
of the Federal Government within 7 days of receiving the final
issuance of the Secretary.
Sec. 725(c) would require the head of the applicable
department or agency of the Federal Government to make a final
decision with respect to the appeal within 30 business days
after receiving the appeal.
Section 6(b) would make a clerical amendment to add this
new section to the table of sections at the beginning of such
chapter.
Section 6(c) would require that subsection 725 of title 38,
U.S.C., as added by subsection (a), shall apply with respect to
an amount paid by the Secretary to or on behalf of an employee
for relocation expenses on or after the date of enactment of
this Act.
Section 7. Time period for response to notice of adverse actions
against supervisory employees who commit prohibited personnel
actions
Section 7 would amend section 733(a)(2)(B) of title 38,
U.S.C., by striking ``14 days'' in clause (i) and inserting
``10 days'' and by striking ``14-day period'' in clause (ii)
and inserting ``10-day period.''
Section 8. Direct hiring authority for medical center director and VISN
directors
Section 8(a) would amend section 7401 of title 38, U.S.C.,
by adding at the end the following new paragraph: ``Medical
center directors and directors of Veterans Integrated Service
Networks with demonstrated ability in the medical profession,
in health care administration, or in health care fiscal
management.''
Section 8(b) would provide for a conforming amendment to
amend section 7401(a)(1) of title 38, U.S.C., by inserting
``and 7401(4)'' after ``7306.''
Section 9. Time periods for review of adverse actions with respect to
certain employees
Section 9(a) would amend section 7461(b)(2) of title 38,
U.S.C., to read as follows: ``(2) In any case other than a case
described in paragraph (1) that involved or includes a question
of professional conduct or competence in which a major adverse
action was not taken, such an appeal shall be made through
Department grievance procedures under section 7463 of title 38,
U.S.C.''
Section 9(b) would amend section 7462 of title 38, U.S.C.,
by striking ``at least 30'' and inserting ``Ten business'' in
section 7462(b)(1)(A) of title 38, U.S.C.; and by striking ``a
reasonable time, but not less than seven days'' and inserting
``The opportunity, within the ten-day notice period'' and by
striking ``orally and'' in section 7462(b)(1)(B) of title 38,
U.S.C. Section 9(b) would also amend 7462(b)(3)(A) by striking
``(A) If a proposed adverse action covered by this section is
not withdrawn'' and inserting ``After considering the
employee's answer, if any''; by striking ``21 days'' and
inserting ``5 business days''; by striking ``answer. The
decision shall include a statement of'' and inserting ``answer
stating''; and by striking subparagraph (B). Section 9(b) would
also amend section 7462(b)(4) of title 38, U.S.C., by striking
``(A) The Secretary'' and all that follows through ``(B) The
Secretary'' and inserting ``The Secretary''; and by striking
``30 days'' and inserting ``7 business days''. Section 9(b)
would also amend section 7462(c)(3) of title 38, U.S.C., by
inserting ``the hearing must be concluded not later than 30
business days after the date on which the appeal is filed,
and'' after ``If such a hearing is held,'' and would amend
section 7462(c)(4) of title 38, U.S.C., by striking ``45 days''
and inserting ``15 business days''; and by striking ``120
days'' and inserting ``45 business days''. Section 9(b) would
also amend section 7462(d)(1) of title 38, U.S.C., by striking
``90 days'' and inserting ``15 business days''.
Section 9(c) would amend section 7463 of title 38, U.S.C.,
by striking subsection (b) and re-designating subsections (c)
through (e) as subsection (b) through (d), respectively.
Section 9(c) would also amend section 7462(b)(2) of title 38,
U.S.C., as so re-designated, by striking ``an advance'' and
inserting ``ten business days'' in subparagraph (A) and by
striking ``a reasonable time'' and inserting ``the opportunity,
within the ten business day notice period,'' in subparagraph
(B) and by striking ``orally and'' in the same subparagraph.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
TITLE 38, UNITED STATES CODE
* * * * * * *
PART I--GENERAL PROVISIONS
* * * * * * *
CHAPTER 7--EMPLOYEES
SUBCHAPTER I --GENERAL EMPLOYEE MATTERS
Sec.
701. Placement of employees in military installations.
* * * * * * *
[713. Senior executives: removal based on performance or misconduct.]
715. Congressional testimony by employees: treatment as official duty.
717. Limitation on administrative leave.
719. Employees: removal, demotion, or suspension based on performance or
misconduct.
721. Reduction of benefits of employees convicted of certain crimes.
723. Recoupment of bonuses or awards paid to employees of Department.
725. Recoupment of relocation expenses paid to or on behalf of employees
of Department.
* * * * * * *
SUBCHAPTER I--GENERAL EMPLOYEE MATTERS
* * * * * * *
[Sec. 713. Senior executives: removal based on performance or
misconduct
[(a) In General.--(1) The Secretary may remove an individual
employed in a senior executive position at the Department of
Veterans Affairs from the senior executive position if the
Secretary determines the performance or misconduct of the
individual warrants such removal. If the Secretary so removes
such an individual, the Secretary may--
[(A) remove the individual from the civil service (as
defined in section 2101 of title 5); or
[(B) in the case of an individual described in
paragraph (2), transfer the individual from the senior
executive position to a General Schedule position at
any grade of the General Schedule for which the
individual is qualified and that the Secretary
determines is appropriate.
[(2) An individual described in this paragraph is an
individual who--
[(A) previously occupied a permanent position within
the competitive service (as that term is defined in
section 2102 of title 5);
[(B) previously occupied a permanent position within
the excepted service (as that term is defined in
section 2103 of title 5); or
[(C) prior to employment in a senior executive
position at the Department of Veterans Affairs, did not
occupy any position within the Federal Government.
[(b) Pay of Transferred Individual.--(1) Notwithstanding any
other provision of law, including the requirements of section
3594 of title 5, any individual transferred to a General
Schedule position under subsection (a)(2) shall, beginning on
the date of such transfer, receive the annual rate of pay
applicable to such position.
[(2) An individual so transferred may not be placed on
administrative leave or any other category of paid leave during
the period during which an appeal (if any) under this section
is ongoing, and may only receive pay if the individual reports
for duty. If an individual so transferred does not report for
duty, such individual shall not receive pay or other benefits
pursuant to subsection (e)(5).
[(c) Notice to Congress.--Not later than 30 days after
removing or transferring an individual from a senior executive
position under subsection (a), the Secretary shall submit to
the Committees on Veterans' Affairs of the Senate and House of
Representatives notice in writing of such removal or transfer
and the reason for such removal or transfer.
[(d) Procedure.--(1) The procedures under section 7543(b) of
title 5 shall not apply to a removal or transfer under this
section.
[(2)(A) Subject to subparagraph (B) and subsection (e), any
removal or transfer under subsection (a) may be appealed to the
Merit Systems Protection Board under section 7701 of title 5.
[(B) An appeal under subparagraph (A) of a removal or
transfer may only be made if such appeal is made not later than
seven days after the date of such removal or transfer.
[(e) Expedited Review by Administrative Judge.--(1) Upon
receipt of an appeal under subsection (d)(2)(A), the Merit
Systems Protection Board shall refer such appeal to an
administrative judge pursuant to section 7701(b)(1) of title 5.
The administrative judge shall expedite any such appeal under
such section and, in any such case, shall issue a decision not
later than 21 days after the date of the appeal.
[(2) Notwithstanding any other provision of law, including
section 7703 of title 5, the decision of an administrative
judge under paragraph (1) shall be final and shall not be
subject to any further appeal.
[(3) In any case in which the administrative judge cannot
issue a decision in accordance with the 21-day requirement
under paragraph (1), the removal or transfer is final. In such
a case, the Merit Systems Protection Board shall, within 14
days after the date that such removal or transfer is final,
submit to Congress and the Committees on Veterans' Affairs of
the Senate and House of Representatives a report that explains
the reasons why a decision was not issued in accordance with
such requirement.
[(4) The Merit Systems Protection Board or administrative
judge may not stay any removal or transfer under this section.
[(5) During the period beginning on the date on which an
individual appeals a removal from the civil service under
subsection (d) and ending on the date that the administrative
judge issues a final decision on such appeal, such individual
may not receive any pay, awards, bonuses, incentives,
allowances, differentials, student loan repayments, special
payments, or benefits.
[(6) To the maximum extent practicable, the Secretary shall
provide to the Merit Systems Protection Board, and to any
administrative judge to whom an appeal under this section is
referred, such information and assistance as may be necessary
to ensure an appeal under this subsection is expedited.
[(f) Relation to Title 5.--(1) The authority provided by this
section is in addition to the authority provided by section
3592 or subchapter V of chapter 75 of title 5.
[(2) Section 3592(b)(1) of title 5 does not apply to an
action to remove or transfer an individual under this section.
[(g) Definitions.--In this section:
[(1) The term ``individual'' means--
[(A) a career appointee (as that term is
defined in section 3132(a)(4) of title 5); or
[(B) any individual who occupies an
administrative or executive position and who
was appointed under section 7306(a) or section
7401(1) of this title.
[(2) The term ``misconduct'' includes neglect of
duty, malfeasance, or failure to accept a directed
reassignment or to accompany a position in a transfer
of function.
[(3) The term ``senior executive position'' means--
[(A) with respect to a career appointee (as
that term is defined in section 3132(a)(4) of
title 5), a Senior Executive Service position
(as such term is defined in section 3132(a)(2)
of title 5); and
[(B) with respect to an individual appointed
under section 7306(a) or section 7401(1) of
this title, an administrative or executive
position.]
* * * * * * *
Sec. 719. Employees: removal, demotion, or suspension based on
performance or misconduct
(a) In General.--The Secretary may remove, demote, or suspend
an individual who is an employee of the Department if the
Secretary determines the performance or misconduct of the
individual warrants such removal, demotion, or suspension. If
the Secretary so removes, demotes, or suspends such an
individual, the Secretary may--
(1) remove the individual from the civil service (as
defined in section 2101 of title 5);
(2) demote the individual by means of a reduction in
grade for which the individual is qualified, that the
Secretary determines is appropriate, and that reduces
the annual rate of pay of the individual; or
(3) suspend the individual.
(b) Pay of Certain Demoted Individuals.--(1) Notwithstanding
any other provision of law, any individual subject to a
demotion under subsection (a)(2) shall, beginning on the date
of such demotion, receive the annual rate of pay applicable to
such grade.
(2) An individual so demoted may not be placed on
administrative leave during the period during which an appeal
(if any) under this section is ongoing, and may only receive
pay if the individual reports for duty or is approved to use
accrued unused annual, sick, family medical, military, or court
leave. If an individual so demoted does not report for duty or
receive approval to use accrued unused leave, such individual
shall not receive pay or other benefits pursuant to subsection
(e)(5).
(c) Notice to Congress.--(1) Not later than 30 days after
removing, demoting, or suspending an individual employed in a
senior executive position under subsection (a) or after
removing, demoting, or suspending an individual under chapter
74 of this title, the Secretary shall submit to the Committees
on Veterans' Affairs of the Senate and House of Representatives
and to each Member of Congress representing a district in the
State or territory where the facility where the individual was
employed immediately before being removed, demoted, or
suspended is located notice in writing of such removal,
demotion, or suspension. Such notice shall include the job
title of the individual, the location where the individual was
employed immediately before being removed, demoted, or
suspended, the proposed action, and the reason for such
removal, demotion, or suspension.
(2) Not later than 30 days after the last day of a fiscal
year, the Secretary shall submit to the Committees on Veterans'
Affairs of the Senate and House of Representatives a report
listing all removals, demotions, and suspensions under this
section or under chapter 74 of this title during such fiscal
year. Each such report shall include the job title of each
individual removed, demoted, or suspended, the location where
the individual was employed immediately before being so
removed, demoted or suspended, the proposed action, and the
reason for such removal, demotion, or suspension.
(3) In this subsection, the term ``senior executive
position'' means, with respect to a career appointee (as that
term is defined in section 3132(a)(4) of title 5), a Senior
Executive Service position (as such term is defined in section
3132(a)(2) of title 5).
(d) Procedure.--(1) Subsection (b) of section 7513 of title 5
shall apply with respect to a removal, demotion, or suspension
under this section, except that the period for notice and
response, which includes the advance notice period required by
paragraph (1) of such subsection and the response period
required by paragraph (2) of such subsection, shall not exceed
a total of 10 business days. Subsection (c) of such section and
section 7121 of such title shall not apply with respect to such
a removal, demotion, or suspension.
(2) The Secretary shall issue a final decision with respect
to a removal, demotion, or suspension under this section--
(A) in the case of a proposed removal, demotion, or
suspension to which an individual responds under
paragraph (1), not later than five business days after
receiving the response of the individual; or
(B) in the case of a proposed removal, demotion, or
suspension to which an individual does not respond, not
later than 15 business days after the Secretary
provides notice to the individual under paragraph (1).
(3) The procedures under chapter 43 of title 5 shall not
apply to a removal, demotion, or suspension under this section.
(4)(A) Subject to subparagraph (B) and subsection (e), any
removal, demotion, or suspension under subsection (a) may be
appealed to the Merit Systems Protection Board, which shall
refer such appeal to an administrative judge pursuant to
section 7701(b)(1) of title 5.
(B) An appeal under subparagraph (A) of a removal, demotion,
or suspension may only be made if such appeal is made not later
than 7 days after the date of such removal, demotion, or
suspension.
(e) Expedited Review.--(1) Upon receipt of an appeal under
subsection (d)(4)(A), the administrative judge shall expedite
any such appeal under such section and, in any such case, shall
issue a final and complete decision not later than 45 business
days after the date of the appeal.
(2) Notwithstanding section 7701(c)(1)(B) of title 5, the
administrative judge shall uphold the decision of the Secretary
to remove, demote, or suspend an employee under subsection (a)
if the decision is supported by substantial evidence. If the
decision of the Secretary is supported by substantial evidence,
the administrative judge shall not mitigate the penalty
prescribed by the Secretary.
(3)(A) The decision of the administrative judge under
paragraph (1) may be appealed to the Merit Systems Protection
Board.
(B) An appeal under subparagraph (A) of a decision of an
administrative judge may only be made if such appeal is made
not later than 7 business days after the date of the decision
of the administrative judge.
(4) In any case in which the administrative judge cannot
issue a decision in accordance with the 45-day requirement
under paragraph (1), the Merit Systems Protection Board shall,
not later than 14 business days after the expiration of the 45-
day period, submit to the Committees on Veterans' Affairs of
the Senate and House of Representatives a report that explains
the reasons why a decision was not issued in accordance with
such requirement.
(5)(A) A decision of the Merit Systems Protection Board under
paragraph (3) may be appealed to the United States Court of
Appeals for the Federal Circuit pursuant to section 7703 of
title 5.
(B) An appeal under subparagraph (A) of a decision of the
Merit Systems Protection Board may only be made if such appeal
is made not later than 7 business days after the date of the
decision of the Board.
(C) Any decision by such Court shall be in compliance with
section 7462(f)(2) of this title.
(6) The Merit Systems Protection Board may not stay any
removal, demotion, under this section.
(7) During the period beginning on the date on which an
individual appeals a removal from the civil service under
subsection (d) and ending on the date that the United States
Court of Appeals for the Federal Circuit issues a final
decision on such appeal, such individual may not receive any
pay, awards, bonuses, incentives, allowances, differentials,
student loan repayments, special payments, or benefits related
to the employment of the individual by the Department.
(8) To the maximum extent practicable, the Secretary shall
provide to the Merit Systems Protection Board such information
and assistance as may be necessary to ensure an appeal under
this subsection is expedited.
(9) If an employee prevails on appeal under this section, the
employee shall be entitled to backpay (as provided in section
5596 of title 5).
(10) This subsection shall supercede any collective
bargaining agreement to the extent that such an agreement
conflicts with this subsection.
(f) Whistleblower Protection.--(1) In the case of an
individual seeking corrective action (or on behalf of whom
corrective action is sought) from the Office of Special Counsel
based on an alleged prohibited personnel practice described in
section 2302(b) of title 5, the Secretary may not remove,
demote, or suspend such individual under subsection (a) without
the approval of the Special Counsel under section 1214(f) of
title 5.
(2) In the case of an individual who has filed a
whistleblower complaint, as such term is defined in section 731
of this title, the Secretary may not remove, demote, or suspend
such individual under subsection (a) until a final decision
with respect to the whistleblower complaint has been made.
(g) Termination of Investigations by Office of Special
Counsel.--Notwithstanding any other provision of law, the
Special Counsel (established by section 1211 of title 5) may
terminate an investigation of a prohibited personnel practice
alleged by an employee or former employee of the Department
after the Special Counsel provides to the employee or former
employee a written statement of the reasons for the termination
of the investigation. Such statement may not be admissible as
evidence in any judicial or administrative proceeding without
the consent of such employee or former employee.
(h) Vacancies.--In the case of an individual who is removed
or demoted under subsection (a), to the maximum extent
feasible, the Secretary shall fill the vacancy arising as a
result of such removal or demotion.
(i) Definitions.--In this section:
(1) The term ``individual'' means an individual
occupying a position at the Department but does not
include--
(A) an individual appointed pursuant to
section 7306, 7401(1), or 7405 of this title;
(B) an individual who has not completed a
probationary or trial period; or
(C) a political appointee.
(2) The term ``suspend'' means the placing of an
employee, for disciplinary reasons, in a temporary
status without duties and pay for a period in excess of
14 days.
(3) The term ``grade'' has the meaning given such
term in section 7511(a) of title 5.
(4) The term ``misconduct'' includes neglect of duty,
malfeasance, or failure to accept a directed
reassignment or to accompany a position in a transfer
of function.
(5) The term ``political appointee'' means an
individual who is--
(A) employed in a position described under
sections 5312 through 5316 of title 5 (relating
to the Executive Schedule);
(B) a limited term appointee, limited
emergency appointee, or noncareer appointee in
the Senior Executive Service, as defined under
paragraphs (5), (6), and (7), respectively, of
section 3132(a) of title 5; or
(C) employed in a position of a confidential
or policy-determining character under schedule
C of subpart C of part 213 of title 5 of the
Code of Federal Regulations.
Sec. 721. Reduction of benefits of employees convicted of certain
crimes
(a) Reduction of Annuity for Removed Employee.--(1) The
Secretary shall order that the covered service of an employee
of the Department removed from a position for performance or
misconduct under section 719 or 7461 of this title or any other
provision of law shall not be taken into account for purposes
of calculating an annuity with respect to such individual under
chapter 83 or chapter 84 of title 5, if--
(A) the Secretary determines that the individual is
convicted of a felony that influenced the individual's
performance while employed in the position;
(B) before such order is made, the individual is
afforded--
(i) notice of the proposed order; and
(ii) an opportunity to respond to the
proposed order by not later than ten business
days following receipt of such notice; and
(C) the Secretary issues the order--
(i) in the case of a proposed order to which
an individual responds under subparagraph
(B)(ii), not later than five business days
after receiving the response of the individual;
or
(ii) in the case of a proposed order to which
an individual does not respond, not later than
15 business days after the Secretary provides
notice to the individual under subparagraph
(B)(i).
(2) Upon the issuance of an order by the Secretary under
paragraph (1), the individual shall have an opportunity to
appeal the order to the Director of the Office of Personnel
Management before the date that is seven business days after
the date of such issuance.
(3) The Director of the Office of Personnel Management shall
make a final decision with respect to an appeal under paragraph
(2) within 30 business days of receiving the appeal.
(b) Reduction of Annuity for Retired Employee.--(1) The
Secretary may order that the covered service of an individual
who is removed for performance or misconduct under section 719
or 7461 of this title or any other provision of law but who
leaves employment at the Department prior to the issuance of a
final decision with respect to such action shall not be taken
into account for purposes of calculating an annuity with
respect to such individual under chapter 83 or chapter 84 of
title 5, if--
(A) the Secretary determines that the individual is
convicted of a felony that influenced the individual's
performance while employed in the position;
(B) before such order is made, the individual is
afforded--
(i) notice of the proposed order; and
(ii) opportunity to respond to the proposed
order by not later than ten business days
following receipt of such notice; and
(C) the Secretary issues the order--
(i) in the case of a proposed order to which
an individual responds under subparagraph
(B)(ii), not later than five business days
after receiving the response of the individual;
or
(ii) in the case of a proposed order to which
an individual does not respond, not later than
15 business days after the Secretary provides
notice to the individual under subparagraph
(B)(i).
(2) Upon the issuance of an order by the Secretary under
paragraph (1), the individual shall have an opportunity to
appeal the order to the Director of the Office of Personnel
Management before the date that is seven business days after
the date of such issuance.
(3) The Director of the Office of Personnel Management shall
make a final decision with respect to an appeal under paragraph
(2) within 30 business days of receiving the appeal.
(c) Administrative Requirements.--Not later than 37 business
days after the Secretary issues a final order under subsection
(a) or (b), the Director of the Office of Personnel Management
shall recalculate the annuity of the individual.
(d) Lump-sum Annuity Credit.--Any individual with respect to
whom an annuity is reduced under subsection (a) or (b) shall be
entitled to be paid so much of such individual's lump-sum
credit as is attributable to the period of covered service.
(e) Spouse or Children Exception.--The Secretary, in
consultation with the Office of Personnel Management, shall
prescribe regulations that may provide for the payment to the
spouse or children of any individual referred to in subsection
(a) or (b) of any amounts which (but for this subsection) would
otherwise have been nonpayable by reason of such subsections.
Any such regulations shall be consistent with the requirements
of sections 8332(o)(5) and 8411(l)(5) of title 5, as the case
may be.
(f) Definitions.--In this section:
(1) The term ``covered service'' means, with respect
to an individual subject to a removal for performance
or misconduct under section 719 or 7461 of this title
or any other provision of law, the period of service
beginning on the date that the Secretary determines
under such applicable provision that the individual
engaged in activity that gave rise to such action and
ending on the date that the individual is removed from
or leaves a position of employment at the Department
prior to the issuance of a final decision with respect
to such action.
(2) The term ``lump-sum credit'' has the meaning
given such term in section 8331(8) or section 8401(19)
of title 5, as the case may be.
(3) The term ``service'' has the meaning given such
term in section 8331(12) or section 8401(26) of title
5, as the case may be.
Sec. 723. Recoupment of bonuses or awards paid to employees of
Department
(a) In General.--Notwithstanding any other provision of law,
the Secretary may issue an order directing an employee of the
Department to repay the amount, or a portion of the amount, of
any award or bonus paid to the employee under title 5,
including under chapter 45 or 53 of such title, or this title
if--
(1) the Secretary determines that the individual
engaged in misconduct or poor performance prior to
payment of the award or bonus, and that such award or
bonus would not have been paid, in whole or in part,
had the misconduct or poor performance been known prior
to payment;
(2) before such repayment, the employee is afforded--
(A) notice of the proposed order; and
(B) an opportunity to respond to the proposed
order by not later than ten business days after
the receipt of such notice; and
(3) the Secretary issues the order--
(A) in the case of a proposed order to which
an individual responds under paragraph (2)(B),
not later than five business days after
receiving the response of the individual; or
(B) in the case of a proposed order to which
an individual does not respond, not later than
15 business days after the Secretary provides
notice to the individual under paragraph
(2)(A).
(b) Appeals.--Upon the issuance of an order by the Secretary
under subsection (a), the individual shall have an opportunity
to appeal the order to another department or agency of the
Federal Government before the date that is seven business days
after the date of such issuance.
(c) Final Decisions.--The head of the applicable department
or agency of the Federal Government shall make a final decision
with respect to an appeal under subsection (b) within 30
business days after receiving such appeal.
Sec. 725. Recoupment of relocation expenses paid on behalf of employees
of Department
(a) In General.--Notwithstanding any other provision of law,
the Secretary may issue an order directing an employee of the
Department to repay the amount, or a portion of the amount,
paid to or on behalf of the employee under title 5 for
relocation expenses, including any expenses under section 5724
or 5724a of such title, or this title if--
(1) the Secretary determines that relocation expenses
were not lawfully authorized or that the employee
committed an act of fraud, waste, or malfeasance that
influenced the authorization of the relocation
expenses;
(2) before such repayment, the employee is afforded--
(A) notice of the proposed order; and
(B) an opportunity to respond to the proposed
order not later than ten business days
following the receipt of such notice; and
(3) the Secretary issues the order--
(A) in the case of a proposed order to which
an individual responds under paragraph (2)(B),
not later than five business days after
receiving the response of the individual; or
(B) in the case of a proposed order to which
an individual does not respond, not later than
15 business days after the Secretary provides
notice to the individual under paragraph
(2)(A).
(b) Appeals.--Upon the issuance of an order by the Secretary
under subsection (a), the individual shall have an opportunity
to appeal the order to another department or agency of the
Federal Government before the date that is seven business days
after the date of such issuance.
(c) Final Decisions.--The head of the applicable department
or agency of the Federal Government shall make a final decision
with respect to an appeal under subsection (b) within 30 days
after receiving such appeal.
SUBCHAPTER II--WHISTLEBLOWER COMPLAINTS
* * * * * * *
Sec. 733. Adverse actions against supervisory employees who commit
prohibited personnel actions relating to
whistleblower complaints
(a) In General.--(1) In accordance with paragraph (2), the
Secretary shall carry out the following adverse actions against
supervisory employees (as defined in section 7103(a) of title
5) whom the Secretary, an administrative judge, the Merit
Systems Protection Board, the Office of Special Counsel, an
adjudicating body provided under a union contract, a Federal
judge, or the Inspector General of the Department determines
committed a prohibited personnel action described in subsection
(c):
(A) With respect to the first offense, an adverse
action that is not less than a 12-day suspension and
not more than removal.
(B) With respect to the second offense, removal.
(2)(A) An employee against whom an adverse action under
paragraph (1) is proposed is entitled to written notice.
(B)(i) An employee who is notified under subparagraph (A) of
being the subject of a proposed adverse action under paragraph
(1) is entitled to [14 days] 10 days following such
notification to answer and furnish evidence in support of the
answer.
(ii) If the employee does not furnish any such evidence as
described in clause (i) or if the Secretary determines that
such evidence is not sufficient to reverse the determination to
propose the adverse action, the Secretary shall carry out the
adverse action following such [14-day period] 10-day period.
(C) Paragraphs (1) and (2) of subsection (b) of section 7513
of title 5, subsection (c) of such section, paragraphs (1) and
(2) of subsection (b) of section 7543 of such title, and
subsection (c) of such section shall not apply with respect to
an adverse action carried out under paragraph (1).
(b) Limitation on Other Adverse Actions.--With respect to a
prohibited personnel action described in subsection (c), if the
Secretary carries out an adverse action against a supervisory
employee, the Secretary may carry out an additional adverse
action under this section based on the same prohibited
personnel action if the total severity of the adverse actions
do not exceed the level specified in subsection (a).
(c) Prohibited Personnel Action Described.--A prohibited
personnel action described in this subsection is any of the
following actions:
(1) Taking or failing to take a personnel action in
violation of section 2302 of title 5 against an
employee relating to the employee--
(A) filing a whistleblower complaint in
accordance with section 732 of this title;
(B) filing a whistleblower complaint with the
Inspector General of the Department, the
Special Counsel, or Congress;
(C) providing information or participating as
a witness in an investigation of a
whistleblower complaint in accordance with
section 732 or with the Inspector General of
the Department, the Special Counsel, or
Congress;
(D) participating in an audit or
investigation by the Comptroller General of the
United States;
(E) refusing to perform an action that is
unlawful or prohibited by the Department; or
(F) engaging in communications that are
related to the duties of the position or are
otherwise protected.
(2) Preventing or restricting an employee from making
an action described in any of subparagraphs (A) through
(F) of paragraph (1).
(3) Conducting a negative peer review or opening a
retaliatory investigation because of an activity of an
employee that is protected by section 2302 of title 5.
(4) Requesting a contractor to carry out an action
that is prohibited by section 4705(b) or section
4712(a)(1) of title 41, as the case may be.
* * * * * * *
PART V--BOARDS, ADMINISTRATIONS, AND SERVICES
* * * * * * *
CHAPTER 74--VETERANS HEALTH ADMINISTRATION - PERSONNEL
* * * * * * *
SUBCHAPTER I--APPOINTMENTS
Sec. 7401. Appointments in Veterans Health Administration
There may be appointed by the Secretary such personnel as
the Secretary may find necessary for the health care of
veterans (in addition to those in the Office of the Under
Secretary for Health appointed under section 7306 of this
title), as follows:
(1) Physicians, dentists, podiatrists, chiropractors,
optometrists, registered nurses, physician assistants,
and expanded-function dental auxiliaries.
(2) Scientific and professional personnel, such as
microbiologists, chemists, and biostatisticians.
(3) Audiologists, licensed hearing aid specialists,
speech pathologists, and audiologist-speech
pathologists, biomedical engineers, certified or
registered respiratory therapists, dietitians, licensed
physical therapists, licensed practical or vocational
nurses, nurse assistants, medical instrument
technicians, medical records administrators or
specialists, medical records technicians, medical
technologists, dental hygienists, dental assistants,
nuclear medicine technologists, occupational
therapists, occupational therapy assistants,
kinesiotherapists, orthotist-prosthetists, pharmacists,
pharmacy technicians, physical therapy assistants,
prosthetic representatives, psychologists, diagnostic
radiologic technologists, therapeutic radiologic
technologists, social workers, marriage and family
therapists, licensed professional mental health
counselors, blind rehabilitation specialists, blind
rehabilitation outpatient specialists, and such other
classes of health care occupations as the Secretary
considers necessary for the recruitment and retention
needs of the Department subject to the following
requirements:
(A) Such other classes of health care
occupations--
(i) are not occupations relating to
administrative, clerical, or physical
plant maintenance and protective
services;
(ii) would otherwise receive basic
pay in accordance with the General
Schedule under section 5332 of title 5;
(iii) provide, as determined by the
Secretary, direct patient care services
or services incident to direct patient
services; and
(iv) would not otherwise be available
to provide medical care or treatment
for veterans.
(B) Not later than 45 days before the
Secretary appoints any personnel for a class of
health care occupations that is not
specifically listed in this paragraph, the
Secretary shall submit to the Committee on
Veterans' Affairs of the Senate, the Committee
on Veterans' Affairs of the House of
Representatives, and the Office of Management
and Budget notice of such appointment.
(C) Before submitting notice under
subparagraph (B), the Secretary shall solicit
comments from any labor organization
representing employees in such class and
include such comments in such notice.
(4) Medical center directors and directors of
Veterans Integrated Service Networks with demonstrated
ability in the medical profession, in health care
administration, or in health care fiscal management.
* * * * * * *
Sec. 7404. Grades and pay scales
(a)(1) The annual rates or ranges of rates of basic pay for
positions provided in section 7306 and 7401(4) of this title
shall be prescribed from time to time by Executive order as
authorized by chapter 53 of title 5 or as otherwise authorized
by law.
(b) The grades for positions provided for in paragraph (1) of
section 7401 of this title shall be as follows. The annual
ranges of rates of basic pay for those grades shall be
prescribed from time to time by Executive order as authorized
by chapter 53 of title 5 or as otherwise authorized by law:
PHYSICIAN AND DENTIST SCHEDULE
Physician grade.
Dentist grade.
NURSE SCHEDULE
Nurse V.
Nurse IV.
Nurse III.
Nurse II.
Nurse I.
CLINICAL PODIATRIST, CHIROPRACTOR, AND OPTOMETRIST
SCHEDULE
Chief grade.
Senior grade.
Intermediate grade.
Full grade.
Associate grade.
(c) Notwithstanding the provisions of section 7425(a) of this
title, a person appointed under section 7306 of this title who
is not eligible for pay under subchapter III shall be deemed to
be a career appointee for the purposes of sections 4507 and
5384 of title 5.
(d) Except as provided under subsection (e), subchapter III,
and section 7457 of this title, pay for positions for which
basic pay is paid under this section may not be paid at a rate
in excess of the rate of basic pay authorized by section 5316
of title 5 for positions in Level V of the Executive Schedule.
(e) The position of Chief Nursing Officer, Office of Nursing
Services, shall be exempt from the provisions of section 7451
of this title and shall be paid at a rate determined by the
Secretary, not to exceed the maximum rate established for the
Senior Executive Service under section 5382 of title 5.
* * * * * * *
SUBCHAPTER V--DISCIPLINARY AND GRIEVANCE PROCEDURES
Sec. 7461. Adverse actions: section 7401(1) employees
(a) Whenever the Under Secretary for Health (or an official
designated by the Under Secretary for Health) brings charges
based on conduct or performance against a section 7401(1)
employee and as a result of those charges an adverse personnel
action is taken against the employee, the employee shall have
the right to appeal the action.
(b)(1) If the case involves or includes a question of
professional conduct or competence in which a major adverse
action was taken, such an appeal shall be made to a
Disciplinary Appeals Board under section 7462 of this title.
[(2) In any other case, such an appeal shall be made--
[(A) through Department grievance procedures under
section 7463 of this title, in any case that involves
or includes a question of professional conduct or
competence in which a major adverse action was not
taken or in any case of an employee who is not covered
by a collective bargaining agreement under chapter 71
of title 5; or
[(B) through grievance procedures provided through
collective bargaining under chapter 71 of title 5 or
through Department grievance procedures under section
7463 of this title, as the employee elects, in the case
of an employee covered by a collective bargaining
agreement under chapter 71 of title 5 that does not
involve or include a question of professional conduct
or competence.]
(2) In any case other than a case described in paragraph (1)
that involves or includes a question of professional conduct or
competence in which a major adverse action was not taken, such
an appeal shall be made through Department grievance procedures
under section 7463 of this title.
(c) For purposes of this subchapter--
(1) Section 7401(1) employees are employees of the
Department employed on a full-time basis under a
permanent appointment in a position listed in section
7401(1) of this title (other than interns and residents
appointed pursuant to section 7406 of this title).
(2) A major adverse action is an adverse action which
includes any of the following:
(A) Suspension.
(B) Transfer.
(C) Reduction in grade.
(D) Reduction in basic pay.
(E) Discharge.
(3) A question of professional conduct or competence
is a question involving any of the following:
(A) Direct patient care.
(B) Clinical competence.
(d) An issue of whether a matter or question concerns, or
arises out of, professional conduct or competence is not itself
subject to any grievance procedure provided by law, regulation,
or collective bargaining and may not be reviewed by any other
agency.
(e) Whenever the Secretary proposes to prescribe regulations
under this subchapter, the Secretary shall publish the proposed
regulations in the Federal Register for notice-and-comment not
less than 30 days before the day on which they take effect.
Sec. 7462. Major adverse actions involving professional conduct or
competence
(a)(1) Disciplinary Appeals Boards appointed under section
7464 of this title shall have exclusive jurisdiction to review
any case--
(A) which arises out of (or which includes) a
question of professional conduct or competence of a
section 7401(1) employee; and
(B) in which a major adverse action was taken.
(2) The board shall include in its record of decision in any
mixed case a statement of the board's exclusive jurisdiction
under this subsection and the basis for such exclusive
jurisdiction.
(3) For purposes of paragraph (2), a mixed case is a case
that includes both a major adverse action arising out of a
question of professional conduct or competence and an adverse
action which is not a major adverse action or which does not
arise out of a question of professional conduct or competence.
(b)(1) In any case in which charges are brought against a
section 7401(1) employee which arises out of, or includes, a
question of professional conduct or competence which could
result in a major adverse action, the employee is entitled to
the following:
(A) [At least 30] Ten business days advance written
notice from the Under Secretary for Health or other
charging official specifically stating the basis for
each charge, the adverse actions that could be taken if
the charges are sustained, and a statement of any
specific law, regulation, policy, procedure, practice,
or other specific instruction that has been violated
with respect to each charge, except that the
requirement for notification in advance may be waived
if there is reasonable cause to believe that the
employee has committed a crime for which the employee
may be imprisoned.
(B) [A reasonable time, but not less than seven days]
The opportunity, within the ten-day notice period, to
present an answer [orally and] in writing to the Under
Secretary for Health or other deciding official, who
shall be an official higher in rank than the charging
official, and to submit affidavits and other
documentary evidence in support of the answer.
(2) In any case described in paragraph (1), the employee is
entitled to be represented by an attorney or other
representative of the employee's choice at all stages of the
case.
(3)[(A) If a proposed adverse action covered by this section
is not withdrawn] After considering the employee's answer, if
any, the deciding official shall render a decision in writing
within [21 days] 5 business days of receipt by the deciding
official of the employee's [answer. The decision shall include
a statement of] answer stating the specific reasons for the
decision with respect to each charge. If a major adverse action
is imposed, the decision shall state whether any of the charges
sustained arose out of a question of professional conduct or
competence. If any of the charges are sustained, the notice of
the decision to the employee shall include notice of the
employee's rights of appeal.
[(B) Notwithstanding the 21-day period specified in
subparagraph (A), a proposed adverse action may be held in
abeyance if the employee requests, and the deciding official
agrees, that the employee shall seek counseling or treatment
for a condition covered under the Rehabilitation Act of 1973.
Any such abeyance of a proposed action may not extend for more
than one year.]
(4)[(A) The Secretary may require that any answer and
submission under paragraph (1)(B) be submitted so as to be
received within 30 days of the date of the written notice of
the charges, except that the Secretary shall allow the granting
of extensions for good cause shown.]
[(B) The Secretary] The Secretary shall require that any
appeal to a Disciplinary Appeals Board from a decision to
impose a major adverse action shall be received within [30
days] 7 business days after the date of service of the written
decision on the employee.
(c)(1) When a Disciplinary Appeals Board convenes to consider
an appeal in a case under this section, the board, before
proceeding to consider the merits of the appeal, shall
determine whether the case is properly before it.
(2) Upon hearing such an appeal, the board shall, with
respect to each charge appealed to the board, sustain the
charge, dismiss the charge, or sustain the charge in part and
dismiss the charge in part. If the deciding official is
sustained (in whole or in part) with respect to any such
charge, the board shall--
(A) approve the action as imposed;
(B) approve the action with modification, reduction,
or exception; or
(C) reverse the action.
(3) A board shall afford an employee appealing an adverse
action under this section an opportunity for an oral hearing.
If such a hearing is held, the hearing must be concluded not
later than 30 business days after the date on which the appeal
is filed, and the board shall provide the employee with a
transcript of the hearing.
(4) The board shall render a decision in any case within [45
days] 15 business days of completion of the hearing, if there
is a hearing, and in any event no later than [120 days] 45
business days after the appeal commenced.
(d)(1) After resolving any question as to whether a matter
involves professional conduct or competence, the Secretary
shall cause to be executed the decision of the Disciplinary
Appeals Board in a timely manner and in any event in not more
than [90 days] 15 business days after the decision of the Board
is received by the Secretary. Pursuant to the board's decision,
the Secretary may order reinstatement, award back pay, and
provide such other remedies as the board found appropriate
relating directly to the proposed action, including expungement
of records relating to the action.
(e) The Secretary may designate an employee of the Department
to represent management in any case before a Disciplinary
Appeals Board.
(f)(1) A section 7401(1) employee adversely affected by a
final order or decision of a Disciplinary Appeals Board (as
reviewed by the Secretary) may obtain judicial review of the
order or decision.
(2) In any case in which judicial review is sought under this
subsection, the court shall review the record and hold unlawful
and set aside any agency action, finding, or conclusion found
to be--
(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
(B) obtained without procedures required by law,
rule, or regulation having been followed; or
(C) unsupported by substantial evidence.
Sec. 7463. Other adverse actions
(a) The Secretary shall prescribe by regulation procedures
for the consideration of grievances of section 7401(1)
employees arising from adverse personnel actions in which each
action taken either--
(1) is not a major adverse action; or
(2) does not arise out of a question of professional
conduct or competence.
Disciplinary Appeals Boards shall not have jurisdiction to
review such matters, other than as part of a mixed case (as
defined in section 7462(a)(3) of this title).
[(b) In the case of an employee who is a member of a
collective bargaining unit under chapter 71 of title 5, the
employee may seek review of an adverse action described in
subsection (a) either under the grievance procedures provided
through regulations prescribed under subsection (a) or through
grievance procedures determined through collective bargaining,
but not under both. The employee shall elect which grievance
procedure to follow. Any such election may not be revoked.]
[(c)] (b)(1) In any case in which charges are brought against
a section 7401(1) employee which could result in a major
adverse action and which do not involve professional conduct or
competence, the employee is entitled to the same notice and
opportunity to answer with respect to those charges as provided
in subparagraphs (A) and (B) of section 7462(b)(1) of this
title.
(2) In any other case in which charges are brought against a
section 7401(1) employee, the employee is entitled to--
(A) [an advance] ten business days written notice
stating the specific reason for the proposed action,
and
(B) [a reasonable time] the opportunity, within the
ten business day notice period, to answer [orally and]
in writing and to furnish affidavits and other
documentary evidence in support of the answer.
[(d)] (c) Grievance procedures prescribed under subsection
(a) shall include the following:
(1) A right to formal review by an impartial examiner
within the Department of Veterans Affairs, who, in the
case of an adverse action arising from a question of
professional conduct or competence, shall be selected
from the panel designated under section 7464 of this
title.
(2) A right to a prompt report of the findings and
recommendations by the impartial examiner.
(3) A right to a prompt review of the examiner's
findings and recommendations by an official of a higher
level than the official who decided upon the action.
That official may accept, modify, or reject the
examiner's recommendations.
[(e)] (d) In any review of an adverse action under the
grievance procedures prescribed under subsection (a), the
employee is entitled to be represented by an attorney or other
representative of the employee's choice at all stages of the
case.
* * * * * * *
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TITLE 5, UNITED STATES CODE
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
SUBPART C--EMPLOYEE PERFORMANCE
* * * * * * *
CHAPTER 43--PERFORMANCE APPRAISAL
* * * * * * *
SUBCHAPTER I--GENERAL PROVISIONS
* * * * * * *
Sec. 4303. Actions based on unacceptable performance
(a) Subject to the provisions of this section, an agency may
reduce in grade or remove an employee for unacceptable
performance.
(b)(1) An employee whose reduction in grade or removal is
proposed under this section is entitled to--
(A) 30 days' advance written notice of the proposed
action which identifies--
(i) specific instances of unacceptable
performance by the employee on which the
proposed action is based; and
(ii) the critical elements of the employee's
position involved in each instance of
unacceptable performance;
(B) be represented by an attorney or other
representative;
(C) a reasonable time to answer orally and in
writing; and
(D) a written decision which--
(i) in the case of a reduction in grade or
removal under this section, specifies the
instances of unacceptable performance by the
employee on which the reduction in grade or
removal is based, and
(ii) unless proposed by the head of the
agency, has been concurred in by an employee
who is in a higher position than the employee
who proposed the action.
(2) An agency may, under regulations prescribed by the head
of such agency, extend the notice period under subsection
(b)(1)(A) of this section for not more than 30 days. An agency
may extend the notice period for more than 30 days only in
accordance with regulations issued by the Office of Personnel
Management.
(c) The decision to retain, reduce in grade, or remove an
employee--
(1) shall be made within 30 days after the date of
expiration of the notice period, and
(2) in the case of a reduction in grade or removal,
may be based only on those instances of unacceptable
performance by the employee--
(A) which occurred during the 1-year period
ending on the date of the notice under
subsection (b)(1)(A) of this section in
connection with the decision; and
(B) for which the notice and other
requirements of this section are complied with.
(d) If, because of performance improvement by the employee
during the notice period, the employee is not reduced in grade
or removed, and the employee's performance continues to be
acceptable for 1 year from the date of the advance written
notice provided under subsection (b)(1)(A) of this section, any
entry or other notation of the unacceptable performance for
which the action was proposed under this section shall be
removed from any agency record relating to the employee.
(e) Any employee who is--
(1) a preference eligible;
(2) in the competitive service; or
(3) in the excepted service and covered by subchapter
II of chapter 75,
and who has been reduced in grade or removed under this section
is entitled to appeal the action to the Merit Systems
Protection Board under section 7701.
(f) This section does not apply to--
(1) the reduction to the grade previously held of a
supervisor or manager who has not completed the
probationary period under section 3321(a)(2) of this
title,
(2) the reduction in grade or removal of an employee
in the competitive service who is serving a
probationary or trial period under an initial
appointment or who has not completed 1 year of current
continuous employment under other than a temporary
appointment limited to 1 year or less, [or]
(3) the reduction in grade or removal of an employee
in the excepted service who has not completed 1 year of
current continuous employment in the same or similar
positions[.], or
(4) any removal or demotion under section 719 of
title 38.
* * * * * * *
DISSENTING VIEWS
We have serious concerns over H.R. 1259, particularly
sections 3 and 9. We believe this bill, although claiming to
provide additional means of accountability to the Department of
Veterans Affairs (VA) would, in practice, make it more
difficult to achieve substantive accountability while
exacerbating VA's culture of whistleblower retaliation and a
toxic work environment that allows poorly performing managers
to retaliate against frontline VA employees. Sections 3 and 9
would strip VA employees of some of their very basic
protections under collective bargaining agreements that ensure
all employees are treated fairly by management. This would
allow for the disparate treatment of VA employees compared to
other federal employees, aggravating VA's recruitment and
retention challenge. Almost one third of VA employees are
veterans, and it is unfair to treat them differently that other
federal employees. With an employee shortage of over 47,000,
the Committee's work should be focused on creating an
environment that attracts talented, hardworking, employees
passionate about delivering care and benefits to our veterans.
In addition, we dissent over the failure of this Committee to
consider this bill under regular order, and the rush to bring
this bill to a full Committee markup with only 48 hours to
review the legislation.
We strongly agree with the need for greater accountability
at the VA, and VA's inability to follow its own laws and
policies to discipline employees is unacceptable. If managers
are making poor decisions or failing, they need to be held
accountable instead of being able to shift blame to hard-
working frontline employees. The VA employees we have
subpoenaed before this Committee that VA has failed to hold
accountable due to process-fouls were not assisted by unions or
permitted to use collective bargaining grievance procedures.
Section 3 of H.R. 1259, covering VA employees under title 5
federal employment law, would remove employees' union-
negotiated alternative dispute resolution mechanisms and
grievance procedures with respect to removal, demotion or
suspension greater than 14-days. It would only permit VA
employees to use statutory procedures that would reduce the
time period for an employee to respond to allegations of poor
performance or misconduct, and reduce the time period to appeal
a disciplinary action before the Merit Systems Protection
Board. It would also supersede any collective bargaining
agreement-negotiated grievance or review procedures provided
for federal employees under the law--reducing employees' due
process rights. In effect, without collective bargaining
procedures to protect rank and file employees, bad managers
would be emboldened to use these new statutory procedures as
weapons against the employees who dare to speak up or blow the
whistle, knowing that those employees would have few
protections.
Section 9 would strip VA healthcare providers of the
ability to elect collective bargaining-negotiated grievance
procedures in all cases involving a question of professional
conduct or competence--no matter how minor. Currently under
VA's own title 38 employment laws, healthcare providers are
permitted to grieve disciplinary actions under collective
bargaining procedures in minor cases, and in major cases
subject to removal, demotion, or suspension if the case does
not involve a question of professional conduct or competence.
Section 9 would strip away these rights from the frontline
providers charged with the vital mission of providing
healthcare to veterans.
Furthermore, this bill was not considered through regular
order, and rushed to a full Committee markup. The Majority
missed a key opportunity to develop bipartisan legislation that
will truly bring accountability to the VA. This legislation
significantly departed from ``accountability'' legislation
considered last congress. Committee members were given only 48
hours to review the legislation. It did not receive a
legislative hearing. Without input from stakeholders and who
would be responsible for implementing the procedures under this
bill, we were denied an opportunity to understand some of the
potentially unforeseen consequences of enacting such
legislation into law.
This is why we supported three amendments during the full
Committee markup that would have given us additional
opportunities to hold poorly performing employees accountable
and continue to protect frontline employees' collective
bargaining rights. One amendment would have given the VA an
additional tool to hold employees accountable under bipartisan
legislation vetted by Veteran Service Organizations, the VA,
and other important stakeholders last congress. Another
amendment would have restored key protections for frontline
employees. The last amendment would have allowed the VA to
immediately remove an employee from the workplace who threatens
the public health and safety of veterans, allowing us more time
to work together as a Committee to develop bipartisan
accountability legislation. Unfortunately, the Majority
rejected these common-sense, pragmatic proposals to increase
accountability quickly at the VA. We remain committed to
working together to ensure veterans come first.
Timothy J. Walz.
Julia Brownley.
Mark Takano.
Kathleen M. Rice.
Ann M. Kuster.
Elizabeth H. Esty.
[all]