PRIA, Government Policy, Made Personal

Summary

The Secretary must make rules for how employees covered by section 7401(1) can complain about certain bad personnel actions. The rules cover cases that are not major punishments or are not about professional conduct or competence. Disciplinary Appeals Boards cannot review these complaints except when they are part of a mixed case. If an employee is in a bargaining unit under chapter 71 of title 5, the employee must choose either these rules or the union’s grievance process, not both, and that choice cannot be changed. When charges could lead to a major punishment but are not about professional conduct or competence, the employee must get notice and a chance to answer under the rules below. In other cases the employee must get written notice of the reason and time to answer both orally and in writing and to give affidavits or other documents. The whole matter must be resolved within 15 business days. The employee has seven business days to respond to written notice. The deciding official must issue a decision no later than 15 business days after notice. The rules must allow a formal review by an impartial VA examiner (for professional conduct or competence issues the examiner comes from a special panel), a quick written report of findings and recommendations, and a prompt review by a higher-level official who may accept, change, or reject those recommendations. The employee may have a lawyer or other 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.

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)(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