Public Law 115–41: To amend title 38, United States Code, to improve the accountability of employees of the Department of Veterans Affairs, and for other purposes.

Advising the Secretary on all matters of the Department relating to accountability, including accountability of employees of the Department, retaliation against whistleblowers, and such matters as the Secretary considers similar and affect public trust in the Department.

Issuing reports and providing recommendations related to the duties described in subparagraph (A).

Receiving whistleblower disclosures.

Referring whistleblower disclosures received under subparagraph (C) for investigation to the Office of the Medical Inspector, the Office of Inspector General, or other investigative entity, as appropriate, if the Assistant Secretary has reason to believe the whistleblower disclosure is evidence of a violation of a provision of law, mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety.

Receiving and referring disclosures from the Special Counsel for investigation to the Medical Inspector of the Department, the Inspector General of the Department, or such other person with investigatory authority, as the Assistant Secretary considers appropriate.

Recording, tracking, reviewing, and confirming implementation of recommendations from audits and investigations carried out by the Inspector General of the Department, the Medical Inspector of the Department, the Special Counsel, and the Comptroller General of the United States, including the imposition of disciplinary actions and other corrective actions contained in such recommendations.

Analyzing data from the Office and the Office of Inspector General telephone hotlines, other whistleblower disclosures, disaggregated by facility and area of health care if appropriate, and relevant audits and investigations to identify 131 STAT. 864 trends and issue reports to the Secretary based on analysis conducted under this subparagraph.

Receiving, reviewing, and investigating allegations of misconduct, retaliation, or poor performance involving—

Making such recommendations to the Secretary for disciplinary action as the Assistant Secretary considers appropriate after substantiating any allegation of misconduct or poor performance pursuant to an investigation carried out as described in subparagraph (F) or (H).

Not later than June 30 of each calendar year, beginning with June 30, 2017, the Assistant Secretary shall submit to the Committee on Veterans’ Affairs of the Senate and the Committee on Veterans’ Affairs of the House of Representatives a report on the activities of the Office during the calendar year in which the report is submitted.

Each report submitted under subparagraph (A) shall include, for the period covered by the report, the following:

“(iv)

supervisory employee

whistleblower

whistleblower disclosure

a violation of a law, rule, or regulation; or

gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”

the Secretary shall use as a critical element in any evaluation of the performance of a supervisory employee; and

promotes the protection of whistleblowers.131 STAT. 866

an explanation of each method established by law in which an employee may file a whistleblower disclosure;

the right of the employee to petition Congress regarding a whistleblower disclosure in accordance with section 7211 of title 5;

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 (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);

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 note); and

the right of contractors to be protected from reprisal for the disclosure of certain information under section 4705 or 4712 of title 41.

whistleblower disclosure

making a whistleblower disclosure to the Assistant Secretary for Accountability and Whistleblower Protection, the Inspector General of the Department, the Special Counsel, or Congress;”

advance notice of the action and a file containing all evidence in support of the proposed action;

be represented by an attorney or other representative of the covered individual’s choice; and

grieve the action in accordance with an internal grievance process that the Secretary, in consultation with the Assistant Secretary for Accountability and Whistleblower Protection, shall establish for purposes of this subsection.

The aggregate period for notice, response, and decision on an action under subsection (a) may not exceed 15 business days.

The period for the response of a covered individual to a notice under paragraph (1)(A) of an action under subsection (a) shall be 7 business days.

A decision under this paragraph on an action under subsection (a) shall be issued not later than 15 business days after notice of the action is provided to the covered individual under paragraph (1)(A). The decision shall be in writing, and shall include the specific reasons therefor.

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with a provision of law;

obtained without procedures required by a provision of law having been followed; or

unsupported by substantial evidence.

covered individual

a career appointee (as that term is defined in section 3132(a)(4) of title 5); or

any individual who occupies an administrative or executive position and who was appointed under section 7306(a), section 7401(1), or section 7401(4) of this title.

misconduct

senior executive position

with respect to a career appointee (as that term is defined in section 3132(a) of title 5), a Senior Executive Service position (as such term is defined in such section); and

with respect to a covered individual appointed under section 7306(a) or section 7401(1) of this title, an administrative or executive position.”

remove the covered individual from the civil service (as defined in section 2101 of title 5);

demote the covered individual by means of a reduction in grade for which the covered individual is qualified, that 131 STAT. 870 the Secretary determines is appropriate, and that reduces the annual rate of pay of the covered individual; or

suspend the covered individual.

A covered individual so demoted may not be placed on administrative leave during the period during which an appeal (if any) under this section is ongoing, and may only receive pay if the covered individual reports for duty or is approved to use accrued unused annual, sick, family medical, military, or court leave.

If a covered individual so demoted does not report for duty or receive approval to use accrued unused leave, such covered individual shall not receive pay or other benefits pursuant to subsection (d)(5).

The aggregate period for notice, response, and final decision in a removal, demotion, or suspension under this section may not exceed 15 business days.

The period for the response of a covered individual to a notice of a proposed removal, demotion, or suspension under this section shall be 7 business days.

Paragraph (3) of subsection (b) of section 7513 of title 5 shall apply with respect to a removal, demotion, or suspension under this section.

The procedures in this subsection shall supersede any collective bargaining agreement to the extent that such agreement is inconsistent with such procedures.

Subject to subparagraph (B) and subsection (d), any removal or demotion under this section, and any suspension of more than 14 days under this section, may be appealed to the Merit Systems Protection Board, which shall refer such appeal to an administrative judge pursuant to section 7701(b)(1) of title 5.

An appeal under subparagraph (A) of a removal, demotion, or suspension may only be made if such appeal is made not later than 10 business days after the date of such removal, demotion, or suspension.

Notwithstanding section 7701(c)(1)(B) of title 5, the administrative judge shall uphold the decision of the Secretary 131 STAT. 871 to remove, demote, or suspend an employee under subsection (a) if the decision is supported by substantial evidence.

Notwithstanding title 5 or any other provision of law, if the decision of the Secretary is supported by substantial evidence, the administrative judge shall not mitigate the penalty prescribed by the Secretary.

The decision of the administrative judge under paragraph (1) may be appealed to the Merit Systems Protection Board.

Notwithstanding section 7701(c)(1)(B) of title 5, the Merit Systems Protection Board shall uphold the decision of the Secretary to remove, demote, or suspend an employee under subsection (a) if the decision is supported by substantial evidence.

Notwithstanding title 5 or any other provision of law, if the decision of the Secretary is supported by substantial evidence, the Merit Systems Protection Board shall not mitigate the penalty prescribed by the Secretary.

A decision of the Merit Systems Protection Board under paragraph (3) may be appealed to the United States Court of Appeals for the Federal Circuit pursuant to section 7703 of title 5 or to any court of appeals of competent jurisdiction pursuant to subsection (b)(1)(B) of such section.

Any decision by such Court shall be in compliance with section 7462(f)(2) of this title.

in the case in which the Assistant Secretary determines to refer the whistleblower disclosure under section 323(c)(1)(D) of this title to an office or other investigative entity, a final decision with respect to the whistleblower disclosure has been made by such office or other investigative entity; or

in the case in which the Assistant Secretary determines not to the refer the whistleblower disclosure under such section, the Assistant Secretary makes such determination.

covered individual

an individual occupying a senior executive position (as defined in section 713(d) of this title);

an individual appointed pursuant to sections 7306, 7401(1), 7401(4), or 7405 of this title;

an individual who has not completed a probationary or trial period; or

a political appointee.

suspend

grade

misconduct

political appointee

employed in a position described under sections 5312 through 5316 of title 5 (relating to the Executive Schedule);

a limited term appointee, limited emergency appointee, or noncareer appointee in the Senior Executive 131 STAT. 873 Service, as defined under paragraphs (5), (6), and (7), respectively, of section 3132(a) of title 5; or

employed in a position of a confidential or policy-determining character under schedule C of subpart C of part 213 of title 5, Code of Federal Regulations, or successor regulation.

whistleblower disclosure

The Secretary shall order that the covered service of an employee of the Department removed from a position for performance or misconduct under section 713, 714, or 7461 of this title or any other provision of law shall not be taken into account for purposes of calculating an annuity with respect to such individual under chapter 83 or chapter 84 of title 5, if—

“(B)

“(C)

Any individual with respect to whom an annuity is reduced under this subsection may appeal the reduction to the Director of the Office of Personnel Management pursuant to such regulations as the Director may prescribe for purposes of this subsection.

The Secretary may order that the covered service of an individual who the Secretary proposes to remove for performance or misconduct under section 713, 714, or 7461 of this title or any other provision of law but who leaves employment at the Department prior to the issuance of a final decision with respect to such action shall not be taken into account for purposes of calculating an annuity with respect to such individual under chapter 83 or chapter 84 of title 5, if—

“(B)

“(C)

Upon the issuance of an order by the Secretary under paragraph (1), the individual shall have an opportunity to appeal the order to the Director of the Office of Personnel Management before the date that is seven business days after the date of such issuance.

The Director of the Office of Personnel Management shall make a final decision with respect to an appeal under paragraph (2) within 30 business days of receiving the appeal.

The Secretary, in consultation with the Director of the Office of Personnel Management, shall prescribe regulations that may provide for the payment to the spouse or children of any individual referred to in subsection (a) or (b) of any amounts which (but for this subsection) would otherwise have been nonpayable by reason of such subsections.

Regulations prescribed under paragraph (1) shall be consistent with the requirements of section 8332(o)(5) and 8411(l)(5) of title 5, as the case may be.

The term ‘’ means, with respect to an individual subject to a removal for performance or misconduct under section 719 or 7461 of this title or any other provision of law, the period of service beginning on the date that the Secretary determines under such applicable provision that the individual engaged in activity that gave rise to such action and ending on the date that the individual is removed from or leaves a position of employment at the Department prior to the issuance of a final decision with respect to such action.

The term ‘’ has the meaning given such term in section 8331(8) or section 8401(19) of title 5, as the case may be.

The term ‘’ has the meaning given such term in section 8331(12) or section 8401(26) of title 5, as the case may be.”

notice of the proposed order; and

an opportunity to respond to the proposed order by not later than 10 business days after the receipt of such notice; and

in the case of a proposed order to which an individual responds under paragraph (2)(B), not later than five business days after receiving the response of the individual; or

in the case of a proposed order to which an individual does not respond, not later than 15 business days 131 STAT. 876 after the Secretary provides notice to the individual under paragraph (2)(A).

notice of the proposed order; and

an opportunity to respond to the proposed order not later than ten business days following the receipt of such notice; and

in the case of a proposed order to which an individual responds under paragraph (2)(B), not later than five business days after receiving the response of the individual; or131 STAT. 877

in the case of a proposed order to which an individual does not respond, not later than 15 business days after the Secretary provides notice to the individual under paragraph (2)(A).