
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 38USC7462]

 
                      TITLE 38--VETERANS' BENEFITS
 
              PART V--BOARDS, ADMINISTRATIONS, AND SERVICES
 
          CHAPTER 74--VETERANS HEALTH ADMINISTRATION--PERSONNEL
 
           SUBCHAPTER V--DISCIPLINARY AND GRIEVANCE PROCEDURES
 
Sec. 7462. Major adverse actions involving professional conduct 
        or competence
        
    (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 to the following:
        (A) At least 30 days 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, and a statement of any specific law, 
    regulation, policy, procedure, practice, or other specific 
    instruction that has been violated with respect to 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) A reasonable time, but not less than seven days, 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)(A) If a proposed adverse action covered by this section is not 
withdrawn, the deciding official shall render a decision in writing 
within 21 days of receipt by the deciding official of the employee's 
answer. The decision shall include a statement of the specific reasons 
for the decision with respect to each charge. If a major adverse action 
is imposed, the decision shall state whether any of the charges 
sustained arose out of a question of professional conduct or competence. 
If any of the charges are sustained, the notice of the decision to the 
employee shall include notice of the employee's rights of appeal.
    (B) Notwithstanding the 21-day period specified in subparagraph (A), 
a proposed adverse action may be held in abeyance if the employee 
requests, and the deciding official agrees, that the employee shall seek 
counseling or treatment for a condition covered under the Rehabilitation 
Act of 1973. Any such abeyance of a proposed action may not extend for 
more than one year.
    (4)(A) The Secretary may require that any answer and submission 
under paragraph (1)(B) be submitted so as to be received within 30 days 
of the date of the written notice of the charges, except that the 
Secretary shall allow the granting of extensions for good cause shown.
    (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 30 days after the date of service of the written 
decision on the employee.
    (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.

(Added Pub. L. 102-40, title II, Sec. 203(a), May 7, 1991, 105 Stat. 
203; amended Pub. L. 102-405, title III, Sec. 302(c)(1), Oct. 9, 1992, 
106 Stat. 1984.)

                       References in Text

    The Rehabilitation Act of 1973, referred to in subsec. (b)(3)(B), is 
Pub. L. 93-112, Sept. 26, 1973, 87 Stat. 355, as amended, which is 
classified generally to chapter 16 (Sec. 701 et seq.) of Title 29, 
Labor. For complete classification of this Act to the Code, see Short 
Title note set out under section 701 of Title 29 and Tables.


                            Prior Provisions

    Provisions similar to those in this subchapter were contained in 
section 4110 of this title prior to the repeal of that section as part 
of the complete revision of chapter 73 of this title by Pub. L. 102-40.


                               Amendments

    1992--Subsec. (b)(1). Pub. L. 102-405 substituted ``Under Secretary 
for Health'' for ``Chief Medical Director'' in subpars. (A) and (B).

                  Section Referred to in Other Sections

    This section is referred to in sections 7461, 7463, 7464 of this 
title.
