38 U.S.C. § 7462 — Major adverse actions involving professional conduct or competence

submitted 35 years ago by Pub. L. 102-40 to r/title-38-VETERANS-BENEFITS · 1,063 words · no verdicts yet

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When a VA health employee faces major discipline over a question of professional conduct or competence, only a Disciplinary Appeals Board can review it. The law spells out strict notice, response, and decision deadlines for the employee, the board, and the Secretary, and the employee can eventually seek judicial review in court.

(a) Disciplinary Appeals Boards, set up under section 7464, are the only body allowed to review a case that both (A) involves a question of professional conduct or competence of a section 7401(1) employee, and (B) resulted in a major adverse action. If a case is "mixed" — meaning it includes both that kind of major action and some other, lesser adverse action — the board must state in its decision why it has exclusive authority over it. (b) When charges against an employee involve professional conduct or competence and could lead to a major adverse action, the employee is entitled, within an overall 15-business-day period, to: (A) advance written notice from the Under Secretary for Health (or other charging official) explaining the basis for each charge, what could happen if the charges are proven, what specific rule was broken, and a file with all the supporting evidence — except this advance notice can be skipped if there's reasonable cause to believe the employee committed a crime that could send them to prison; and (B) a chance to respond, in writing and in person, to a higher-ranking deciding official, and to submit sworn statements and other evidence. The employee can be represented by an attorney or other representative at every stage. After considering the employee's response, the deciding official must issue a written decision with specific reasons. The employee gets seven business days to respond to the notice, and if they want to appeal a major adverse action to a Disciplinary Appeals Board, they must do so within seven business days of getting the written decision. Overall, this whole charge-and-decide process can't take more than 15 business days, and these rules override any conflicting collective bargaining agreement. (c) When a Disciplinary Appeals Board hears an appeal, it first checks whether the case is properly in front of it. Then, for each charge, it either upholds it, dismisses it, or partly upholds and partly dismisses it. If a charge is upheld, the board can approve the punishment as given, approve it with changes or reductions, or reverse it entirely. The employee gets a chance for an oral hearing, and if one happens, gets a transcript of it. The board must decide the case within 45 days after the hearing ends, and no later than 120 days after the appeal started, no matter what. (d) After sorting out whether the matter really involves professional conduct or competence, the Secretary must carry out the board's decision within 90 days of receiving it — this can include reinstating the employee, awarding back pay, or other fixes like clearing the employee's record. If the Secretary thinks the board's decision was clearly wrong on the facts or unlawful, the Secretary can reverse it, or send it back to the board for more work. If the decision wasn't clearly wrong but the punishment doesn't fit the charges, the Secretary can reduce the punishment. Once the Secretary carries out the decision, that's the final step within the agency. (e) The Secretary can appoint someone to represent management's side in a case before a Disciplinary Appeals Board. (f) An employee who is harmed by a final board decision (as reviewed by the Secretary) can ask a court to review it. The court looks at the record and must strike down any agency action or finding that was (A) arbitrary, capricious, an abuse of discretion, or otherwise against the law; (B) made without following required legal procedures; or (C) not backed up by substantial evidence.

the actual law source: uscode.house.gov ↗public domain

(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.

Source credit: (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.)

history & why it existsrecord from the source credit

1991Enacted · Pub. L. 102-40 · 105 Stat. 203
1992Amended · Pub. L. 102-405 · 106 Stat. 1984
2017Amended · Pub. L. 115-41 · 131 Stat. 878
2019Amended · Pub. L. 116-61 · 133 Stat. 1117

A history note hasn’t been published yet. The record shows enactment by Pub. L. 102-40 on 1991-05-07.

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