PRIA, Government Policy, Made Personal

Summary

Disciplinary Appeals Boards must be the only ones to review major adverse actions taken against a section 7401(1) employee when the matter involves the employee’s professional conduct or competence. A "mixed case" is one that includes both such a major action and other kinds of adverse actions. If a case is mixed, the board must say it has exclusive jurisdiction and explain why. If charges could lead to a major adverse action for a section 7401(1) employee, the employee must get written notice ahead of time that names the charges, the possible punishments, the specific rule or law said to be broken, and the file with the evidence (notice can be waived if there is reasonable cause to believe the employee committed a crime that could bring imprisonment). The employee has seven business days to answer in writing or orally to a deciding official who is higher in rank than the charging official, may have a lawyer or other representative at every stage, and may submit affidavits and other evidence. The whole matter must be resolved within 15 business days and the deciding official must issue a written decision with reasons within that time. An appeal to the Disciplinary Appeals Board must be filed within seven business days after the employee gets the written decision. The board first checks it has jurisdiction, then may sustain, dismiss, or partly sustain charges and may approve, change, or reverse the imposed action. The board must offer an oral hearing and give a transcript if held, and must decide within 45 days after the hearing or no later than 120 days after the appeal started. The Secretary must carry out the board’s decision within 90 days, but may reverse, vacate and remand, or reduce the action in limited circumstances. The Secretary’s execution ends the administrative process. An affected employee may seek court review, and a court can set aside agency action if it is arbitrary, if required procedures were not followed, or if the action is not supported by substantial evidence. The Secretary may name a Department employee to represent management before the board.

Title 38, §7462

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(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, within the aggregate time period specified in paragraph (5)(A), to the following:

(A)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, a statement of any specific law, regulation, policy, procedure, practice, or other specific instruction that has been violated with respect to each charge, and a file containing all the evidence in support of 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)The opportunity, within the time period provided for in paragraph (4)(A), 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)After considering the employee’s answer, if any, and within the time period provided for in paragraph (5)(B), the deciding official shall render a decision on the charges. The decision shall be in writing and shall include the specific reasons therefor.

(4)(A)The period for the response of an employee under paragraph (1)(B) to advance written notice under paragraph (1)(A) shall be seven business days.

(B)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 seven business days after the date of service of the written decision on the employee.

(5)(A)The aggregate period for the resolution of charges against an employee under this subsection may not exceed 15 business days.

(B)The deciding official shall render a decision under paragraph (3) on charges under this subsection not later than 15 business days after the Under Secretary provides notice on the charges for purposes of paragraph (1)(A).

(6)The procedures in this subsection shall supersede any collective bargaining agreement to the extent that such agreement is inconsistent with such procedures.

(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 board shall provide the employee with a transcript of the hearing.

(4)The board shall render a decision in any case within 45 days of completion of the hearing, if there is a hearing, and in any event no later than 120 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 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.

(2)If the Secretary finds a decision of the board to be clearly contrary to the evidence or unlawful, the Secretary may—

(A)reverse the decision of the board, or

(B)vacate the decision of the board and remand the matter to the Board for further consideration.

(3)If the Secretary finds the decision of the board (while not clearly contrary to the evidence or unlawful) to be not justified by the nature of the charges, the Secretary may mitigate the adverse action imposed.

(4)The Secretary’s execution of a board’s decision shall be the final administrative action in the case.

(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.

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

2019—Subsec. (b)(4)(A). Pub. L. 116–61 inserted “notice” after “written”. 2017—Subsec. (b)(1). Pub. L. 115–41, § 208(b)(1)(A), in introductory provisions, inserted “, within the aggregate time period specified in paragraph (5)(A),” after “is entitled”. Subsec. (b)(1)(A). Pub. L. 115–41, § 208(b)(1)(B), substituted “Advance written notice” for “At least 30 days advance written notice” and “a statement” for “and a statement” and inserted “and a file containing all the evidence in support of each charge,” after “with respect to each charge,”. Subsec. (b)(1)(B). Pub. L. 115–41, § 208(b)(1)(C), substituted “The opportunity, within the time period provided for in paragraph (4)(A)” for “A reasonable time, but not less than seven days”. Subsec. (b)(3). Pub. L. 115–41, § 208(b)(2), added par. (3) and struck out former par. (3) which related to requirement that deciding official render a written decision within 21 days of receipt of the employee’s answer. Subsec. (b)(4)(A). Pub. L. 115–41, § 208(b)(3)(A), added subpar. (A) and struck out former subpar. (A) which read as follows: “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.” Subsec. (b)(4)(B). Pub. L. 115–41, § 208(b)(3)(B), substituted “seven business days” for “30 days”. Subsec. (b)(5), (6). Pub. L. 115–41, § 208(b)(4), added pars. (5) and (6). 1992—Subsec. (b)(1). Pub. L. 102–405 substituted “Under Secretary for Health” for “Chief Medical Director” in subpars. (A) and (B).

§7462 Major Adverse Actions Involving Professional Conduct or Competence