38 U.S.C. § 7462 — Major adverse actions involving profes-

Page 1257 TITLE 38—VETERANS’ BENEFITS § 7462 not less than 30 days before the day on which they take effect.’’ § 7462. Major adverse actions involving profes- sional conduct or competence (a)(1) Disciplinary Appeals Boards appointed under section 7464 of this title shall have exclu- sive jurisdiction to review any case— (A) which arises out of (or which includes) a question of professional conduct or com- petence 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 de- cision in any mixed case a statement of the board’s exclusive jurisdiction under this sub- section and the basis for such exclusive jurisdic- tion. (3) For purposes of paragraph (2), a mixed case is a case that includes both a major adverse ac- tion 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 spe- cific law, regulation, policy, procedure, prac- tice, 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 em- ployee 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 Sec- retary 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 at- torney 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 em- ployee under paragraph (1)(B) to advance writ- ten notice under paragraph (1)(A) shall be seven business days. (B) The Secretary shall require that any ap- peal to a Disciplinary Appeals Board from a de- cision 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 sub- section may not exceed 15 business days. (B) The deciding official shall render a deci- sion 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 su- persede any collective bargaining agreement to the extent that such agreement is inconsistent with such procedures. (c)(1) When a Disciplinary Appeals Board con- venes to consider an appeal in a case under this section, the board, before proceeding to consider the merits of the appeal, shall determine wheth- er 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 sus- tained (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, re- duction, or exception; or (C) reverse the action. (3) A board shall afford an employee appealing an adverse action under this section an oppor- tunity 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 Ap- peals 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 appro- priate 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 re- mand the matter to the Board for further con- sideration. (3) If the Secretary finds the decision of the board (while not clearly contrary to the evi- dence or unlawful) to be not justified by the na- ture of the charges, the Secretary may mitigate the adverse action imposed. (4) The Secretary’s execution of a board’s deci- sion 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. Page 1258 TITLE 38—VETERANS’ BENEFITS § 7463 (f)(1) A section 7401(1) employee adversely af- fected by a final order or decision of a Discipli- nary Appeals Board (as reviewed by the Sec- retary) 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 re- view the record and hold unlawful and set aside any agency action, finding, or conclusion found to be— (A) arbitrary, capricious, an abuse of discre- tion, 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. (Added Pub. L. 102–40, title II, § 203(a), May 7, 1991, 105 Stat. 203; amended Pub. L. 102–405, title III, § 302(c)(1), Oct. 9, 1992, 106 Stat. 1984; Pub. L. 115–41, title II, § 208(b), June 23, 2017, 131 Stat. 878; Pub. L. 116–61, § 6(7), Sept. 30, 2019, 133 Stat. 1117.) 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 chap- ter 73 of this title by Pub. L. 102–40. AMENDMENTS 2019—Subsec. (b)(4)(A). Pub. L. 116–61 inserted ‘‘no- tice’’ after ‘‘written’’. 2017—Subsec. (b)(1). Pub. L. 115–41, § 208(b)(1)(A), in in- troductory provisions, inserted ‘‘, within the aggregate time period specified in paragraph (5)(A),’’ after ‘‘is en- titled’’. Subsec. (b)(1)(A). Pub. L. 115–41, § 208(b)(1)(B), sub- stituted ‘‘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 re- spect to each charge,’’. Subsec. (b)(1)(B). Pub. L. 115–41, § 208(b)(1)(C), sub- stituted ‘‘The opportunity, within the time period pro- vided 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 require- ment 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 sub- mitted 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), sub- stituted ‘‘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 Direc- tor’’ in subpars. (A) and (B). § 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 ei- ther— (1) is not a major adverse action; or (2) does not arise out of a question of profes- sional conduct or competence. Disciplinary Appeals Boards shall not have ju- risdiction 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 mem- ber 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 oppor- tunity 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 applica- ble, shall be seven business days. (C) The deciding official shall render a deci- sion on charges under paragraph (1) or (2) not later than 15 business days after notice is pro- vided on the charges for purposes of paragraph (1) or (2)(A), as applicable. (d) Grievance procedures prescribed under sub- section (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 con- duct 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 exam- iner. (3) A right to a prompt review of the exam- iner’s findings and recommendations by an of- ficial of a higher level than the official who decided upon the action. That official may ac- cept, modify, or reject the examiner’s rec- ommendations. (e) In any review of an adverse action under the grievance procedures prescribed under sub- section (a), the employee is entitled to be rep- resented by an attorney or other representative of the employee’s choice at all stages of the case.