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38 U.S.C. § 731 — Adverse actions against supervisory employees who commit prohibited personnel actions relating to whistleblower complaints
Federal law — U.S. Code and appendices · legal_authorities
**(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](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section7103/a&num=0&edition=prelim)) 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 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 10-day period.
(C) Paragraphs (1) and (2) of subsection (b) of [section 7513 of title 5](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section7513&num=0&edition=prelim), 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 ad
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Source location: Title 38, Chapter 7, § 731; chapter-007-employees.md
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**(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](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section7103/a&num=0&edition=prelim)) 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 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 10-day period.
(C) Paragraphs (1) and (2) of subsection (b) of [section 7513 of title 5](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section7513&num=0&edition=prelim), 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](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section2302&num=0&edition=prelim) against an employee relating to the employee—
(A) making a whistleblower disclosure to the Assistant Secretary for Accountability and Whistleblower Protection, the Inspector General of the Department, the Special Counsel, or Congress;
(B) providing information or participating as a witness in an investigation of a whistleblower disclosure made to the Assistant Secretary for Accountability and Whistleblower Protection, the Inspector General of the Department, the Special Counsel, or Congress;
(C) participating in an audit or investigation by the Comptroller General of the United States;
(D) refusing to perform an action that is unlawful or prohibited by the Department; or
(E) 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 (E) 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](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section2302&num=0&edition=prelim).
(4) Requesting a contractor to carry out an action that is prohibited by section 4705(b) or [section 4712(a)(1) of title 41](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section4712/a/1&num=0&edition=prelim), as the case may be.
**(d) Whistleblower Disclosure Defined.—** In this section, the term “whistleblower disclosure” has the meaning given such term in [section 323(g) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title38-section323/g&num=0&edition=prelim).
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Federal law — U.S. Code and appendices · legal_authorities
**(a) Development and Use of Criteria Required.—** The Secretary, in consultation with the Assistant Secretary of Accountability and Whistleblower Protection, shall develop criteria that—
(1) the Secretary shall use as a critical element in any evaluation of the performance of a supervisory employee; and
(2) promotes the protection of whistleblowers.
**(b) Principles for Protection of Whistleblowers.—** The criteria required by subsection (a) shall include principles for the protection of whistleblowers, such as the degree to which supervisory employees respond constructively when employees of the Department report concerns, take responsible action to resolve such concerns, and foster an environment in which employees of the Department feel comfortable reporting concerns to supervisory employees or to the appropriate authorities.
**(c) Supervisory Employee and Whistleblower Defined.—** In this section, the terms “supervisory employee” and “whistleblower” have the meanings given such terms in [section 323 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title38-section323&num=0&edition=prelim).
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Federal law — U.S. Code and appendices · legal_authorities
**(a)**
(1) For the purpose of this title, “prohibited personnel practice” means any action described in subsection (b).
(2) For the purpose of this section—
(A) “personnel action” means—
(i) an appointment;
(ii) a promotion;
(iii) an action under chapter 75 of this title or other disciplinary or corrective action;
(iv) a detail, transfer, or reassignment;
(v) a reinstatement;
(vi) a restoration;
(vii) a reemployment;
(viii) a performance evaluation under chapter 43 of this title or under title 38;
(ix) a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subparagraph;
(x) a decision to order psychiatric testing or examination;
(xi) the implementation or enforcement of any nondisclosure policy, form, or agreement; and
(xii) any other significant change in duties, responsibilities, or working conditions;
with respect to an employee in, or applicant for, a covered position in an agency, and in the case of an alleged prohibited personnel practice described in subsection (b)(8), an employee or applicant for employment in a Government corporation as defined in [section 9101 of title 31](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section9101&num=0&edition=prelim);
(B) “covered position” means, with respect to any personnel action, any position in the competitive service, a career appointee position in the Senior Executive Service, or a position in the excepted service, but does not include any position which is, prior to the personnel action—
(i) excepted from the competitive service because of
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Federal law — U.S. Code and appendices · legal_authorities
**(a)** Under regulations prescribed by the Office of Personnel Management, an agency may take an action covered by this subchapter against an employee only for such cause as will promote the efficiency of the service.
**(b)** An employee against whom an action is proposed is entitled to—
(1) at least 30 days’ advance written notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action;
(2) a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer;
(3) be represented by an attorney or other representative; and
(4) a written decision and the specific reasons therefor at the earliest practicable date.
**(c)** An agency may provide, by regulation, for a hearing which may be in lieu of or in addition to the opportunity to answer provided under subsection (b)(2) of this section.
**(d)** An employee against whom an action is taken under this section is entitled to appeal to the Merit Systems Protection Board under [section 7701 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section7701&num=0&edition=prelim).
**(e)** Copies of the notice of proposed action, the answer of the employee when written, a summary thereof when made orally, the notice of decision and reasons therefor, and any order effecting an action covered by this subchapter, together with any supporting material, shall be maintained by the agency and shall be furnished to the Board upon its request and to the employee affected upon the employee’s request.
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Federal law — U.S. Code and appendices · legal_authorities
**(a) Training.—** Not less frequently than once every two years, the Secretary, in coordination with the Whistleblower Protection Ombudsman designated under section 3(d)(1)(C) of the Inspector General Act of 1978 (5 U.S.C. App.),11 See References in Text note below. shall provide to each employee of the Department training regarding whistleblower disclosures, including—
(1) an explanation of each method established by law in which an employee may file a whistleblower disclosure;
(2) the right of the employee to petition Congress regarding a whistleblower disclosure in accordance with [section 7211 of title 5](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section7211&num=0&edition=prelim);
(3) an explanation that the employee may not be prosecuted or reprised against for disclosing information to Congress, the Inspector General, or another investigatory agency in instances where such disclosure is permitted by law, including under sections 5701, 5705, and 7732 of this title, under [section 552a of title 5](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim) (commonly referred to as the Privacy Act), under chapter 93 of title 18, and pursuant to regulations promulgated under section 264(c) of the Health Insurance Portability and Accountability Act of 1996 (Public Law 104–191);
(4) an explanation of the language that is required to be included in all nondisclosure policies, forms, and agreements pursuant to section 115(a)(1) of the Whistleblower Protection Enhancement Act of 2012 ([5 U.S.C. 2302](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section2302&num=0&edition=prelim) note); and
(5) the right of contractors to be protected from reprisal for the disclosure of certain i
Source: Supplied U.S. Code snapshot — release unconfirmed · 38 U.S.C. § 733
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Federal law — U.S. Code and appendices · legal_authorities
Page 124
TITLE 38—VETERANS’ BENEFITS
§ 727
(i) in an administrative or executive po-
sition; and
(ii) appointed under section 7306(a) or
section 7401(1) of this title.
(3) The term ‘‘career appointee’’ has the
meaning given that term in section 3132(a) of
title 5.
(Added Pub. L. 115–182, title V, § 501(a), June 6,
2018, 132 Stat. 1474; amended Pub. L. 115–251, title
II, § 211(a)(1), Sept. 29, 2018, 132 Stat. 3174.)
Editorial Notes
CODIFICATION
Section 501(a) of Pub. L. 115–182, which directed that
this section be added at the end of this chapter, was ex-
ecuted by adding this section at the end of this sub-
chapter, to reflect the probable intent of Congress.
AMENDMENTS
2018—Subsec. (c)(3). Pub. L. 115–251 struck out
‘‘, United States Code’’ after ‘‘of title 5’’.
§ 727. Reassignment of senior executives
(a) APPROVAL
OF
REASSIGNMENTS.—No indi-
vidual employed in a senior executive position
at the Department may be reassigned to another
such position at the Department unless such re-
assignment is approved in writing and signed by
the Secretary.
(b) SEMIANNUAL REPORTS REQUIRED.—(1) Not
later than June 30 and December 31 of each year,
the Secretary shall submit to Congress a report
on the reassignment of individuals employed in
senior executive positions at the Department to
other such positions at the Department during
the period covered by the report.
(2) Each report submitted under paragraph (1)
shall describe the purpose of each reassignment
and the costs associated with such reassign-
ment.
(3) For purposes of paragraph (2), costs associ-
ated with a reassignment may only include the
following:
(A) A salary increase.
(B) Temporary travel expenses for the indi-
vidual or the family of the individual.
(C) Moving expenses.
(D) A paid inc
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