38 U.S.C. § 7461 — Adverse actions: section 7401(1) employ-

Page 1256 TITLE 38—VETERANS’ BENEFITS § 7461 (b) VOLUNTARY OVERTIME.—(1) Nursing staff may on a voluntary basis elect to work hours otherwise prohibited by subsection (a). (2) The refusal of nursing staff to work hours prohibited by subsection (a) shall not be grounds— (A) to discriminate (within the meaning of section 704(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e–3(a))) against the staff; (B) to dismiss or discharge the staff; or (C) for any other adverse personnel action against the staff. (c) OVERTIME UNDER EMERGENCY CIR- CUMSTANCES.—(1) Subject to paragraph (2), the Secretary may require nursing staff to work hours otherwise prohibited by subsection (a) if— (A) the work is a consequence of an emer- gency that could not have been reasonably an- ticipated; (B) the emergency is non-recurring and is not caused by or aggravated by the inatten- tion of the Secretary or lack of reasonable contingency planning by the Secretary; (C) the Secretary has exhausted all good faith, reasonable attempts to obtain voluntary workers; (D) the nurse staff have critical skills and expertise that are required for the work; and (E) the work involves work for which the standard of care for a patient assignment re- quires continuity of care through completion of a case, treatment, or procedure. (2) Nursing staff may not be required to work hours under this subsection after the require- ment for a direct role by the staff in responding to medical needs resulting from the emergency ends. (d) NURSING STAFF DEFINED.—In this section, the term ‘‘nursing staff’’ includes the following: (1) A registered nurse. (2) A licensed practical or vocational nurse. (3) A nurse assistant appointed under this chapter or title 5. (4) Any other nurse position designated by the Secretary for purposes of this section. (Added Pub. L. 111–163, title VI, § 602(a)(1), May 5, 2010, 124 Stat. 1172.) SUBCHAPTER V—DISCIPLINARY AND GRIEVANCE PROCEDURES § 7461. Adverse actions: section 7401(1) employ- ees (a) Whenever the Under Secretary for Health (or an official designated by the Under Sec- retary for Health) brings charges based on con- duct or performance against a section 7401(1) employee and as a result of those charges an ad- verse personnel action is taken against the em- ployee, the employee shall have the right to ap- peal the action. (b)(1) If the case involves or includes a ques- tion of professional conduct or competence in which a major adverse action was taken, such an appeal shall be made to a Disciplinary Appeals Board under section 7462 of this title. (2) In any case other than a case described in paragraph (1) that involves or includes a ques- tion of professional conduct or competence in which a major adverse action was not taken, such an appeal shall be made through Depart- ment grievance procedures under section 7463 of this title. (c) For purposes of this subchapter— (1) Section 7401(1) employees are employees of the Department employed on a full-time basis under a permanent appointment in a po- sition listed in section 7401(1) of this title (other than employees in senior executive po- sitions (as defined in section 713(d) of this title) and interns and residents appointed pur- suant to section 7406 of this title). (2) A major adverse action is an adverse ac- tion which includes any of the following: (A) Suspension. (B) Transfer. (C) Reduction in grade. (D) Reduction in basic pay. (E) Discharge. (3) A question of professional conduct or competence is a question involving any of the following: (A) Direct patient care. (B) Clinical competence. (d) An issue of whether a matter or question concerns, or arises out of, professional conduct or competence is not itself subject to any griev- ance procedure provided by law, regulation, or collective bargaining and may not be reviewed by any other agency. (e) Whenever the Secretary proposes to pre- scribe regulations under this subchapter, the Secretary shall publish the proposed regulations in the Federal Register for notice-and-comment not less than 30 days before the day on which they take effect. (Added Pub. L. 102–40, title II, § 203(a), May 7, 1991, 105 Stat. 202; amended Pub. L. 102–405, title III, § 302(c)(1), Oct. 9, 1992, 106 Stat. 1984; Pub. L. 115–41, title II, §§ 201(b), 208(a), June 23, 2017, 131 Stat. 869, 878.) 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 2017—Subsec. (b)(2). Pub. L. 115–41, § 208(a), amended par. (2) generally. Prior to amendment, par. (2) related to the appeals procedure for cases not described in par. (1). Subsec. (c)(1). Pub. L. 115–41, § 201(b), inserted ‘‘em- ployees in senior executive positions (as defined in sec- tion 713(d) of this title) and’’ before ‘‘interns’’. 1992—Subsec. (a). Pub. L. 102–405 substituted ‘‘Under Secretary for Health’’ for ‘‘Chief Medical Director’’ in two places. Statutory Notes and Related Subsidiaries REGULATIONS Pub. L. 102–40, title II, § 204, May 7, 1991, 105 Stat. 207, provided that: ‘‘The Secretary of Veterans Affairs shall prescribe regulations under subchapter V of chapter 74 of title 38, United States Code (as added by section 203), not later than 180 days after the date of the enactment of this Act [May 7, 1991]. Such regulations shall be pub- lished in the Federal Register for notice-and-comment 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.