38 U.S.C. § 731 — Adverse actions against supervisory employees who commit prohibited personnel actions relating to whistleblower complaints
submitted 10 years ago by Pub. L. 114-223 to r/title-38-VETERANS-BENEFITS · 584 words · no verdicts yet
The Secretary must take specified suspensions or removals against supervisors found to retaliate through prohibited personnel actions involving whistleblower activity. The supervisor receives written notice and 10 days to answer, subject to the stated limits.
(a) General. (1) Under paragraph (2), the Secretary* must take adverse action against a supervisory employee whom the listed officials or bodies determine committed a subsection (c) prohibited action: for a first offense, at least a 12-day suspension and no more than removal; for a second offense, removal. (2) A proposed employee is entitled to written notice and then 10 days to answer and provide supporting evidence. If no evidence is provided, or the Secretary finds it insufficient to overturn the proposed action, the Secretary must take the action after 10 days. The listed title 5 notice, answer, hearing, and review provisions do not apply to an action under paragraph (1). (b) Other actions. For the same prohibited action, an additional action may be taken only if the total severity does not exceed subsection (a). (c) Prohibited action. It is (1) taking or failing to take a personnel action contrary to section 2302 because an employee (A) disclosed wrongdoing to the Assistant Secretary, Inspector General, Special Counsel, or Congress; (B) gave information or testified in such an investigation; (C) joined a Comptroller General audit or investigation; (D) refused an unlawful or Department*-prohibited act; or (E) made job-related or otherwise protected communications; (2) preventing or restricting such activity; (3) conducting a negative peer review or retaliatory investigation because of protected activity; or (4) asking a contractor to take an action prohibited by section 4705(b) or 4712(a)(1) of title 41. (d) Definition. “Whistleblower disclosure” has the meaning in section 323(g); this section does not define it.
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) 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):
With respect to the first offense, an adverse action that is not less than a 12-day suspension and not more than removal.
With respect to the second offense, removal.
An employee against whom an adverse action under paragraph (1) is proposed is entitled to written notice.
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.
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.
Paragraphs (1) and (2) of subsection (b) of section 7513 of title 5, 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).
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).
A prohibited personnel action described in this subsection is any of the following actions:
Taking or failing to take a personnel action in violation of section 2302 of title 5 against an employee relating to the employee—
making a whistleblower disclosure to the Assistant Secretary for Accountability and Whistleblower Protection, the Inspector General of the Department, the Special Counsel, or Congress;
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;
participating in an audit or investigation by the Comptroller General of the United States;
refusing to perform an action that is unlawful or prohibited by the Department; or
engaging in communications that are related to the duties of the position or are otherwise protected.
Preventing or restricting an employee from making an action described in any of subparagraphs (A) through (E) of paragraph (1).
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.
Requesting a contractor to carry out an action that is prohibited by section 4705(b) or section 4712(a)(1) of title 41, as the case may be.
In this section, the term “whistleblower disclosure” has the meaning given such term in section 323(g) of this title.
Source credit: (Added Pub. L. 114–223, div. A, title II, § 247(a)(1), Sept. 29, 2016, 130 Stat. 887, § 733; renumbered § 731 and amended Pub. L. 115–41, title I, § 102(a)(2), (c), title II, § 206, June 23, 2017, 131 Stat. 865, 867, 877.)
- 2016Enacted · Pub. L. 114-223 · 130 Stat. 887
- 2017Amended · Pub. L. 115-41 · 131 Stat. 865, 867, 877
A history note hasn’t been published yet. The record shows enactment by Pub. L. 114-223 on 2016-09-29.
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