[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 2158 Introduced in Senate (IS)]

<DOC>






118th CONGRESS
  1st Session
                                S. 2158

  To amend title 38, United States Code, to provide for disciplinary 
 procedures for supervisors and managers at the Department of Veterans 
   Affairs and to modify the procedures of personnel actions against 
          employees of the Department, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 22, 2023

  Mr. Moran (for himself, Mr. Manchin, and Mr. Rubio) introduced the 
 following bill; which was read twice and referred to the Committee on 
                           Veterans' Affairs

_______________________________________________________________________

                                 A BILL


 
  To amend title 38, United States Code, to provide for disciplinary 
 procedures for supervisors and managers at the Department of Veterans 
   Affairs and to modify the procedures of personnel actions against 
          employees of the Department, 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.--(1)(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) in paragraph (1), by inserting ``by substantial 
                evidence'' after ``determines''; and
                    (B) by adding at the end the following new 
                paragraphs:
    ``(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 redesignating subsection (d) as subsection (e); and
            (4) by inserting after subsection (c) the following new 
        subsection (d):
    ``(d) Application.--This section shall apply to any misconduct or 
performance of a covered individual beginning on the date of the 
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 the 
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) in the matter before subparagraph (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) Veterans Health Administration 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.''.
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