[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4278 Reported in House (RH)]
<DOC>
Union Calendar No. 351
118th CONGRESS
2d Session
H. R. 4278
[Report No. 118-425]
To amend title 38, United States Code, to modify personnel action
procedures with respect to employees of the Department of Veterans
Affairs, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 22, 2023
Mr. Bost introduced the following bill; which was referred to the
Committee on Veterans' Affairs
March 15, 2024
Additional sponsors: Mr. Issa, Mrs. Radewagen, Mr. Bergman, Mr.
Obernolte, Mr. Loudermilk, Mr. Self, Mr. Murphy, Mr. Wenstrup, Mr.
Lamborn, Mr. Rosendale, Mrs. Kiggans of Virginia, Mr. Rutherford, Mrs.
Miller-Meeks, Mr. Westerman, Mr. Johnson of Ohio, Mr. Cline, Mr.
D'Esposito, Mr. Wilson of South Carolina, Mr. Carter of Georgia, Mr.
Calvert, Mr. Rouzer, Mr. Walberg, Mr. Van Orden, Mrs. Cammack, Mr.
Webster of Florida, Mr. Newhouse, and Mr. Ogles
March 15, 2024
Reported with an amendment, committed to the Committee of the Whole
House on the State of the Union, and ordered to be printed
[Strike out all after the enacting clause and insert the part printed
in italic]
[For text of introduced bill, see copy of bill as introduced on June
22, 2023]
_______________________________________________________________________
A BILL
To amend title 38, United States Code, to modify personnel action
procedures with respect to employees of the Department of Veterans
Affairs, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Restore Department of Veterans
Affairs Accountability Act of 2023'' or the ``Restore VA Accountability
Act of 2023''.
SEC. 2. SUPERVISORS: REMOVAL, DEMOTION, OR SUSPENSION BASED ON
PERFORMANCE OR MISCONDUCT.
(a) Discipline of Supervisors.--
(1) In general.--Title 38, United States Code, is amended
by inserting after section 711 the following:
``Sec. 712. Supervisors: removal, demotion, or suspension based on
performance or misconduct
``(a) In General.--The Secretary may remove from civil service,
demote, or suspend a covered individual who is an employee of the
Department if the Secretary determines by substantial evidence that the
performance or misconduct of the covered individual warrants such
action.
``(b) Rights and Procedures.--(1)(A) When making an initial
decision under subsection (a) with respect to determining whether a
covered individual should be removed, demoted, or suspended, the
deciding employee of the Department shall exclusively apply the
following factors:
``(i) The nature and seriousness of the offense, and its
relation to the covered individual's duties, position, and
responsibilities, including whether the offense was intentional
or technical or inadvertent, or was committed maliciously or
for gain, or was frequently repeated.
``(ii) The covered individual's job level and type of
employment, including supervisory or fiduciary role, and
prominence of the position.
``(B) The Secretary shall review the initial decision and uphold
such decision if it is supported by substantial evidence.
``(2) A covered individual subject to an action under subsection
(a) is entitled to--
``(A) advance notice of the action and a file containing
all evidence in support of the proposed action;
``(B) be represented by an attorney or other representative
of the covered individual's choice; and
``(C) 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.
``(3) A final decision by the Secretary under paragraph (1)(B) that
is not grieved, and a grievance decision under paragraph (2)(C), shall
be final and conclusive.
``(4) The procedures under chapter 43 of title 5 shall not apply to
a removal, demotion, or suspension under this section, and the
Secretary may carry out such a removal, demotion, or suspension without
first placing a covered individual on a performance improvement plan.
``(c) Timing.--(A) The aggregate period for notice, response, and
final decision by the Secretary of an action under this section may not
exceed 15 business days.
``(B) The period for the response of a covered individual to a
notice under subsection (b)(2)(A) shall be 7 business days.
``(C) The final decision by the Secretary under subsection
(b)(1)(B) shall--
``(i) be issued not later than 15 business days after
notice is provided under subsection (b)(2)(A); and
``(ii) be in writing and shall include the specific reasons
for the decision.
``(D) The Secretary shall ensure that the grievance process
established under paragraph (2)(C) takes fewer than 21 days after the
final decision.
``(d) Judicial Review.--(1) A covered individual adversely affected
by a final decision under this section that is not grieved, or by a
grievance decision under subsection (b)(2)(C), may obtain judicial
review of such decision.
``(2) Any removal, demotion, or suspension under this section is
not appealable to the Merit Systems Protection Board, or to any
administrative judge or other person appointed by the Merit Systems
Protection Board.
``(3) In any case in which judicial review is sought under
paragraph (1), the court shall review the record and may set aside any
Department action found to be--
``(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with a provision of law;
``(B) obtained without procedures required by a provision
of law having been followed; or
``(C) unsupported by substantial evidence.
``(4) Except to the extent that an appeal under this subsection
presents a constitutional issue, such court may not review a challenge
to the penalty imposed against the covered individual or mitigate such
penalty.
``(e) Demoted Individuals.--(1) A demotion under subsection (a)
shall be carried out as a reduction in grade for which the covered
individual is qualified, that the Secretary determines is appropriate,
and that reduces the annual rate of pay of the covered individual.
``(2) Notwithstanding any other provision of law, any covered
individual so demoted--
``(A) shall, beginning on the date of such demotion,
receive the annual rate of pay applicable to such grade;
``(B) 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; and
``(C) who does not report for duty or receive approval to
use accrued unused leave shall not receive pay or other
benefits.
``(f) Whistleblower Protection.--(1) In the case of a covered
individual seeking corrective action (or on behalf of whom corrective
action is sought) from the Office of Special Counsel based on an
alleged prohibited personnel practice described in section 2302(b) of
title 5, the Secretary may not remove, demote, or suspend such covered
individual under subsection (a) without the approval of the Special
Counsel under section 1214(f) of title 5.
``(2) In the case of a covered individual who has made a
whistleblower disclosure to the Assistant Secretary for Accountability
and Whistleblower Protection, the Secretary may not remove, demote, or
suspend such covered individual under subsection (a) until--
``(A) 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
``(B) in the case in which the Assistant Secretary
determines not to refer the whistleblower disclosure under such
section, the Assistant Secretary makes such determination.
``(g) Termination of Investigations by Office of Special Counsel.--
(1) Notwithstanding any other provision of law, the Special Counsel
(established by section 1211 of title 5) may terminate an investigation
of a prohibited personnel practice alleged by an employee or former
employee of the Department after the Special Counsel provides to the
employee or former employee a written statement of the reasons for the
termination of the investigation.
``(2) Such statement may not be admissible as evidence in any
judicial or administrative proceeding without the consent of such
employee or former employee.
``(h) Application.--This section shall apply to any performance or
misconduct of a covered individual beginning on the date of enactment
of the Department of Veterans Affairs Accountability and Whistleblower
Protection Act of 2017 (Public Law 115-41).
``(i) Definitions.--In this section:
``(1) The term `civil service' has the meaning given that
term in section 2101 of title 5.
``(2) The term `covered individual' means an employee of
the Department who is a supervisor or management official as
defined in section 7103(a) of title 5 occupying a position at
the Department, including individuals appointed pursuant to
this title, title 5, and hybrid employees appointed pursuant to
section 7401 of this title, but does not include--
``(A) an individual occupying a senior executive
position (as defined in section 713(d) of this title);
``(B) an individual appointed pursuant to section
7306, 7401(1), 7401(4), or 7405 of this title;
``(C) an individual who has not completed a
probationary or trial period; or
``(D) a political appointee.
``(3) The term `grade' has the meaning given such term in
section 7511(a) of title 5.
``(4) The term `misconduct' includes neglect of duty,
malfeasance, or failure to accept a directed reassignment or to
accompany a position in a transfer of function.
``(5) The term `political appointee' means an individual
who is--
``(A) employed in a position described under
sections 5312 through 5316 of title 5 (relating to the
Executive Schedule);
``(B) a limited term appointee, limited emergency
appointee, or noncareer appointee in the Senior
Executive Service, as defined under paragraphs (5),
(6), and (7), respectively, of section 3132(a) of title
5; or
``(C) 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.
``(6) The term `suspend' means the placing of an employee,
for disciplinary reasons, in a temporary status without duties
and pay for a period in excess of 14 days.
``(7) The term `whistleblower disclosure' has the meaning
given such term in section 323(g) of this title.''.
(2) Clerical amendment.--The table of contents for title
38, United States Code, is amended by inserting after the item
relating to section 711 the following:
``712. Supervisors: removal, demotion, or suspension based on
performance or misconduct.''.
SEC. 3. SENIOR EXECUTIVES: MODIFICATION OF PROCEDURES TO REMOVE,
DEMOTE, OR SUSPEND BASED ON PERFORMANCE OR MISCONDUCT.
Section 713 of title 38, United States Code, is amended--
(1) in subsection (a)--
(A) by inserting ``by substantial evidence'', after
``determines''; and
(B) by adding at the end the following:
``(3) When making an initial decision under this subsection with
respect to determining whether a covered individual should be
reprimanded or suspended, involuntarily reassigned, demoted, or
removed, the deciding employee of the Department shall exclusively
apply the following factors:
``(A) The nature and seriousness of the offense, and its
relation to the covered individual's duties, position, and
responsibilities, including whether the offense was intentional
or technical or inadvertent, or was committed maliciously or
for gain, or was frequently repeated.
``(B) The covered individual's job level and type of
employment, including supervisory or fiduciary role, and
prominence of the position.
``(4) The Secretary shall review the initial decision and uphold
such decision if it is supported by substantial evidence.'';
(2) in subsection (b)--
(A) in paragraph (3), by inserting ``after the
final decision'' after ``21 days''; and
(B) by adding at the end the following:
``(7) Except to the extent that an appeal under this subsection
presents a constitutional issue, such court may not review a challenge
to the penalty imposed against the covered individual or mitigate such
penalty.''; and
(3) by inserting after subsection (c) the following (and
redesignating subsection (d) as subsection (e)):
``(d) Application.--This section shall apply to any misconduct or
performance of a covered individual beginning on the date of enactment
of the Department of Veterans Affairs Accountability and Whistleblower
Protection Act of 2017 (Public Law 115-41).''.
SEC. 4. MODIFICATION OF DISCIPLINARY PROCEDURES FOR EMPLOYEES OF THE
DEPARTMENT OF VETERANS AFFAIRS.
(a) Department of Veterans Affairs Employee Discipline
Modifications.--Section 714 of title 38, United States Code, is
amended--
(1) in subsection (a),
(A) in paragraph (1), by inserting ``by substantial
evidence'' after ``the Secretary determines''; and
(B) by adding at the end the following:
``(3)(A) When making an initial decision under this subsection with
respect to determining whether a covered individual should be removed,
demoted, or suspended, the deciding employee of the Department shall
exclusively apply the following factors:
``(i) The nature and seriousness of the offense, and its
relation to the covered individual's duties, position, and
responsibilities, including whether the offense was intentional
or technical or inadvertent, or was committed maliciously or
for gain, or was frequently repeated.
``(ii) The covered individual's job level and type of
employment, including supervisory or fiduciary role, and
prominence of the position.
``(iii) The covered individual's past disciplinary record.
``(iv) The covered individual's past work record, including
length of service, performance on the job, ability to get along
with fellow workers, and dependability.
``(v) Mitigating circumstances surrounding the offense such
as unusual job tensions, personality problems, mental
impairment, harassment, or bad faith, malice, or provocation on
the part of others involved in the matter.
``(B) The Secretary shall review the initial decision and uphold
such decision if it is supported by substantial evidence.''.
(2) in subsection (c)--
(A) by striking paragraph (1)(D); and
(B) in paragraph (3), by inserting before the
period the following: ``, and the Secretary may carry
out such a removal, demotion, or suspension without
first placing a covered individual on a performance
improvement plan'';
(3) in subsection (d)--
(A) in paragraph (2), by adding at the end the
following:
``(C) Except to the extent that an appeal under this subsection
presents a constitutional issue, the administrative judge may not
review a challenge to the penalty imposed against the covered
individual.'';
(B) in paragraph (3), by adding at the end the
following:
``(D) Except to the extent that an appeal under this subsection
presents a constitutional issue, the Merit Systems Protection Board may
not review a challenge to the penalty imposed against the covered
individual.'';
(C) in paragraph (5), by adding at the end the
following:
``(C) Except to the extent that an appeal under this subsection
presents a constitutional issue, such Court may not review a challenge
to the penalty imposed against the covered individual or mitigate such
penalty.''; and
(D) by striking paragraph (10);
(4) by redesignating subsection (h) as subsection (j);
(5) by inserting after subsection (g) the following:
``(h) Collective Bargaining Agreements.--The procedures in this
section shall supersede any collective bargaining agreement to the
extent that such agreement is inconsistent with such procedures.
``(i) Application.--This section shall apply to any performance or
misconduct of a covered individual beginning on the date of enactment
of the Department of Veterans Affairs Accountability and Whistleblower
Protection Act of 2017 (Public Law 115-41).''; and
(6) in paragraph (1) of subsection (j), as redesignated by
paragraph (4)--
(A) by inserting ``including individuals appointed
pursuant to this title, title 5, and hybrid employees
appointed pursuant to section 7401 of this title''
after ``Department'';
(B) in subparagraph (D), by striking the period and
inserting ``; or''; and
(C) by adding after subparagraph (D) the following:
``(E) a supervisor or management official as
defined in section 7103(a) of title 5.''.
(b) VHA Employee Discipline Modifications.--Section 7403(f)(3) of
such title is amended--
(1) by striking ``Notwithstanding any other provision of
this title or other law,'' and inserting ``(A) Notwithstanding
any other provision of this title or other law, and consistent
with subparagraph (B),''; and
(2) by adding at the end the following:
``(B) With respect to any covered individual (as that term is
defined in section 712 or 714) appointed to such positions, such
matters shall be resolved, at Secretary's sole discretion, under--
``(i) section 712;
``(ii) section 714; or
``(iii) title 5 as though such individuals had been
appointed under that title.''.
SEC. 5. INDEPENDENT STUDY REGARDING MANAGEMENT STRUCTURES OF DEPARTMENT
OF VETERANS AFFAIRS.
(a) In General.--Not later than 90 days after the date of the
enactment of this Act, the Secretary of Veterans Affairs shall seek to
enter into an agreement with the National Academy of Public
Administration (referred to in this section as the ``Academy'') under
which the Academy shall conduct a study and review of the oversight,
accountability, and performance management structures of the Department
of Veterans Affairs.
(b) Considerations.--In conducting a study and review under this
section, the Academy shall--
(1) consult with the Secretary and outside stakeholders;
(2) take into account previous reports and recommendations
pertaining to oversight, accountability, and performance
management of the Department;
(3) examine alternatives and develop recommendations for
improving the oversight, accountability, and performance
management of the Department; and
(4) make recommendations to improve the oversight,
accountability, and performance management of the Department.
(c) Scope.--The scope of the study and review under this section
shall include--
(1) the organizational structure of the Department;
(2) the employee performance management processes of the
Department;
(3) training on performance management processes for
employees, supervisors, senior executives, and human resources
professionals of the Department;
(4) employee professional development programs of the
Department; and
(5) leadership development programs of the Department.
(d) Best Practices.--In conducting the study, the Academy shall
review best practices of other Federal agencies to determine whether
they are applicable to the Department.
(e) Report of the Academy.--Not later than 18 months after the date
of the enactment of this Act, the Academy shall submit to the
Committees on Veterans' Affairs of the Senate and House of
Representatives a report that contains--
(1) the findings of the study and review conducted under
this section; and
(2) any other recommendations that the Academy determines
necessary and relevant to the study and review.
(f) Report of the Secretary.--Not later than 90 days after the
Academy submits the report under subsection (e), the Secretary shall
submit to the Committees on Veterans' Affairs of the Senate and House
of Representatives a report containing--
(1) the evaluation of the Secretary of the findings and
recommendations made by the Academy;
(2) the determination of the Secretary whether to implement
such recommendations and findings;
(3) a timeline for such implementation; and
(4) the determination of the Secretary whether such
implementation requires legislation.
SEC. 6. COMPTROLLER GENERAL STUDY ON VETERANS HEALTH ADMINISTRATION
OVERSIGHT FUNCTIONS.
(a) Study.--The Comptroller General of the United States shall
conduct a study of the oversight functions of the Veterans Health
Administration. Such study shall include an examination of each of the
following:
(1) How the Veterans Health Administration manages and
coordinates its oversight functions.
(2) How the Veterans Health Administration determines the
appropriate number and types of employees necessary to carry
out such oversight functions.
(3) How the Veterans Health Administration prioritizes the
work conducted pursuant to such oversight functions and the
extent to which the findings generated through such functions
are used to make system-wide improvements.
(b) Report.--Not later than one year after the date of the
enactment of this Act, the Comptroller General shall submit to the
Committees on Veterans' Affairs of the Senate and House of
Representatives a report on the results of the study required under
subsection (a) and any recommendations of the Comptroller General with
respect to such findings.
Union Calendar No. 351
118th CONGRESS
2d Session
H. R. 4278
[Report No. 118-425]
_______________________________________________________________________
A BILL
To amend title 38, United States Code, to modify personnel action
procedures with respect to employees of the Department of Veterans
Affairs, and for other purposes.
_______________________________________________________________________
March 15, 2024
Reported with an amendment, committed to the Committee of the Whole
House on the State of the Union, and ordered to be printed