§7463 — Title 38 Veterans' Benefits | U.S. Code

Summary

The Secretary must create rules for handling grievances by employees covered by section 7401(1) when the personnel action is either not a major adverse action or is not about professional conduct or competence. If the employee is in a bargaining unit under chapter 71 of title 5, the employee can pick either these rules or the union’s grievance process, but not both, and that choice cannot be changed. If charges could lead to a major adverse action but are not about professional conduct, the employee must get notice and a chance to answer under the stated procedures and deadlines. For other charges, the employee must get a written notice with the specific reason and time to answer in writing and orally and to submit affidavits and other evidence. All of these cases must be finished within 15 business days total. The employee has 7 business days to respond after written notice. The deciding official must issue a decision no later than 15 business days after the notice. The rules must allow a formal review by an impartial examiner inside the Department of Veterans Affairs. If the action is about professional conduct or competence, that examiner must come from the panel named in section 7464. The examiner must give a prompt report with findings and recommendations. A higher-level official must promptly review those findings and may accept, change, or reject them. The employee may be represented by an attorney or another chosen representative at every stage.

Title 38, §7463

Veterans' Benefits — Source: USLM XML via OLRC

(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.

(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)(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 notice and an opportunity to answer with respect to those charges in accordance with subparagraphs (A) and (B) of section 7462(b)(1) of this title, but within the time periods specified in paragraph (3).

(2)In any other case in which charges are brought against a section 7401(1) employee, the employee is entitled, within the aggregate time period specified in paragraph (3)(A), to—

(A)written notice stating the specific reason for the proposed action, and

(B)time to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer.

(3)(A)The aggregate period for the resolution of charges against an employee under paragraph (1) or (2) may not exceed 15 business days.

(B)The period for the response of an employee under paragraph (1) or (2)(B) to written notice of charges under paragraph (1) or (2)(A), as applicable, shall be seven business days.

(C)The deciding official shall render a decision on charges under paragraph (1) or (2) not later than 15 business days after notice is provided on the charges for purposes of paragraph (1) or (2)(A), as applicable.

(d)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)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.

Notes & Related Subsidiaries

Editorial Notes

Prior Provisions

Provisions similar to those in this subchapter were contained in section 4110 of this title prior to the repeal of that section as part of the complete revision of chapter 73 of this title by Pub. L. 102–40.

Amendments

2018—Subsec. (c)(2)(B). Pub. L. 115–407 substituted “to answer” for “to answer to answer”. 2017—Subsec. (c)(1). Pub. L. 115–41, § 208(c)(1), substituted “notice and an opportunity to answer with respect to those charges in accordance with subparagraphs (A) and (B) of section 7462(b)(1) of this title, but within the time periods specified in paragraph (3)” for “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”. Subsec. (c)(2). Pub. L. 115–41, § 208(c)(2)(A), in introductory provisions, inserted “, within the aggregate time period specified in paragraph (3)(A),” after “is entitled”. Subsec. (c)(2)(A). Pub. L. 115–41, § 208(c)(2)(B), substituted “written notice” for “an advance written notice”. Subsec. (c)(2)(B). Pub. L. 115–41, § 208(c)(2)(C), substituted “time to answer” for “a reasonable time”. Subsec. (c)(3). Pub. L. 115–41, § 208(c)(3), added par. (3).

§7463 Other adverse actions