VA Accountability First and Appeals Modernization Act of 2016
A BILL
To amend title 38, United States Code, to provide for the removal or demotion of employees of the Department of Veterans Affairs based on performance or misconduct, and for other purposes.
Sec. 2 References to title 38, United States Code
Except as otherwise expressly provided, whenever in this Act an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of title 38, United States Code.
Sec. 3 Removal or demotion of employees based on performance or misconduct
In general— Chapter 7 is amended by adding at the end the following new section:
“715. Employees: removal or demotion based on performance or misconduct
“(a) In general—The Secretary may remove or demote an individual who is an employee of the Department if the Secretary determines the performance or misconduct of the individual warrants such removal or demotion. If the Secretary so removes or demotes such an individual, the Secretary may—
“(1) remove the individual from the civil service (as defined in section 2101 of title 5); or
“(2) demote the individual by means of—
“(A) a reduction in grade for which the individual is qualified and that the Secretary determines is appropriate; or
“(B) a reduction in annual rate of pay that the Secretary determines is appropriate.
“(b) Pay of certain demoted individuals
“(1) Notwithstanding any other provision of law, any individual subject to a demotion under subsection (a)(2)(A) shall, beginning on the date of such demotion, receive the annual rate of pay applicable to such grade.
“(2) An individual so demoted may not be placed on administrative leave or any other category of paid leave during the period during which an appeal (if any) under this section is ongoing, and may only receive pay if the individual reports for duty. If an individual so demoted does not report for duty, such individual shall not receive any pay, awards, bonuses, incentives, allowances, differentials, student loan repayments, special payments, or benefits from the Department.
“(c) Notice to Congress—Not later than 30 days after removing or demoting an individual under subsection (a), the Secretary shall submit to the Committee on Veterans' Affairs of the Senate and the Committee on Veterans' Affairs of the House of Representatives notice in writing of such removal or demotion and the reason for such removal or demotion.
“(d) Procedure
“(1) Subsection (b) of section 7513 of title 5 shall apply with respect to a removal or demotion under this section, except that the period for notice and response, which includes the advance notice period required by paragraph (1) of such subsection and the response period required by paragraph (2) of such subsection, shall not exceed a total of ten calendar days.
“(2) The procedures under chapter 43 of title 5 shall not apply to a removal or demotion under this section.
“(3)
“(A) Subject to subparagraph (B) and subsection (e), any removal or demotion under subsection (a) may be appealed to the Merit Systems Protection Board under section 7701 of title 5.
“(B) An appeal under subparagraph (A) of a removal or demotion may only be made if such appeal is made not later than seven days after the date of such removal or demotion.
“(e) Expedited Review by Merit Systems Protection Board
“(1) Upon receipt of an appeal under subsection (d)(3)(A), the Merit Systems Protection Board shall expedite any such appeal under such section and, in any such case, shall issue a decision not later than 60 days after the date of the appeal.
“(2) Notwithstanding section 7701(c)(1)(B) of title 5, the Merit Systems Protection Board shall uphold the decision of the Secretary to remove or demote an employee under subsection (a) if the decision is supported by substantial evidence.
“(3) The decision of the Merit Systems Protection Board under paragraph (1), and any final removal or demotion described in paragraph (4), may be appealed to the United States Court of Appeals for the Federal Circuit pursuant to section 7703 of title 5. Any decision by such Court shall be in compliance with section 7462(f)(2) of this title.
“(4) In any case in which the Merit Systems Protection Board cannot issue a decision in accordance with the 60-day requirement under paragraph (1), the removal or demotion is final. In such a case, the Merit Systems Protection Board shall, within 14 days after the date that such removal or demotion is final, submit to Congress and the Committee on Veterans' Affairs of the Senate and the Committee on Veterans' Affairs of the House of Representatives a report that explains the reasons why a decision was not issued in accordance with such requirement.
“(5) The Merit Systems Protection Board may not stay any removal or demotion under this section.
“(6) During the period beginning on the date on which an individual appeals a removal from the civil service under subsection (d) and ending on the date that the Merit Systems Protection Board issues a final decision on such appeal, such individual may not receive any pay, awards, bonuses, incentives, allowances, differentials, student loan repayments, special payments, or benefits from the Department.
“(7) To the maximum extent practicable, the Secretary shall provide to the Merit Systems Protection Board such information and assistance as may be necessary to ensure an appeal under this subsection is expedited.
“(f) Whistleblower protection
“(1) In the case of an 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 or demote such individual under subsection (a) without the approval of the Special Counsel under section 1214(f) of title 5.
“(2) In the case of an individual who has filed a whistleblower complaint, as such term is defined in section 741 of this title, the Secretary may not remove or demote such individual under subsection (a) until a final decision with respect to the whistleblower complaint has been made.
“(g) Termination of investigations by Office of Special Counsel—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. Such statement may not be admissible as evidence in any judicial or administrative proceeding without the consent of such employee or former employee.
“(h) Relation to other authorities—The authority provided by this section is in addition to the authority provided by subchapter V of chapter 74 of this title, subchapter II of chapter 75 of title 5, chapter 43 of such title, and any other authority with respect to disciplining an individual.
“(i) Definitions—In this section:
“(1) The term individual means an individual occupying a position at the Department but does not include—
“(A) an individual, as that term is defined in section 713(g); or
“(B) a political appointee.
“(2) The term grade has the meaning given that term in section 7511(a) of title 5.
“(3) 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.
“(4) 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 of the Code of Federal Regulations (or any successor regulation).”
Clerical and conforming amendments—
Clerical— The table of sections at the beginning of chapter 7 is amended by inserting after the item relating to section 713 the following new item:
Conforming— Section 4303(f) of title 5, United States Code, is amended—
by striking “or” at the end of paragraph (2);
by striking the period at the end of paragraph (3) and inserting “, or”; and
by adding at the end the following:
“(4) any removal or demotion under section 715 of title 38.”
Sec. 4 Reduction of benefits for members of the Senior Executive Service within the Department of Veterans Affairs convicted of certain crimes
Reduction of benefits—
In general— Chapter 7 is further amended by inserting after section 715, as added by section 3, the following new section:
“717. Senior executives: reduction of benefits of individuals convicted of certain crimes
“(a) Reduction of annuity for removed employee
“(1) The Secretary shall order that the covered service of an individual removed from a senior executive position for performance or misconduct under section 713 of this title, chapter 43 or subchapter V of chapter 75 of title 5, 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—
“(A) the individual is convicted of a felony that influenced the individual’s performance while employed in the senior executive position; and
“(B) before such order is made, the individual is afforded—
“(i) notice of the order and an opportunity to respond to the order; and
“(ii) consistent with paragraph (2), an opportunity to appeal the order to another department or agency of the Federal Government.
“(2) If a final decision on an appeal made under paragraph (1)(B)(ii) is not made by the applicable department or agency of the Federal Government within 30 days after receiving such appeal, the order of the Secretary under paragraph (1) shall be final and not subject to further appeal.
“(b) Reduction of annuity for retired employee
“(1) The Secretary may order that the covered service of an individual who is subject to a removal or transfer action for performance or misconduct under section 713 of this title, chapter 43 or subchapter V of chapter 75 of title 5, 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—
“(A) the individual is convicted of a felony that influenced the individual’s performance while employed in the senior executive position; and
“(B) before such order is made, the individual is afforded—
“(i) notice of the order and an opportunity to respond to the order; and
“(ii) an opportunity for a hearing conducted by another department or agency of the Federal Government.
“(2) The Secretary shall make such an order not later than seven days after the date of the conclusion of a hearing described in paragraph (1)(B) that determines that such order is lawful.
“(c) Administrative requirements
“(1) Not later than 30 days after the Secretary issues an order under subsection (a) or (b), the Director of the Office of Personnel Management shall recalculate the annuity of the individual.
“(2) A decision regarding whether the covered service of an individual shall be taken into account for purposes of calculating an annuity under subsection (a) or (b) is final and may not be reviewed by any department or agency or any court.
“(d) Lump-Sum Annuity Credit—Any individual with respect to whom an annuity is reduced under subsection (a) or (b) shall be entitled to be paid so much of such individual’s lump-sum credit as is attributable to the period of covered service.
“(e) Spouse or children exception—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 that (but for this subsection) would otherwise have been nonpayable by reason of subsection (a) or (b). Any such regulations shall be consistent with the requirements of sections 8332(o)(5) and 8411(l)(5) of title 5, as the case may be.
“(f) Definitions—In this section:
“(1) The term covered service means, with respect to an individual subject to a removal or transfer for performance or misconduct under section 713 of this title, chapter 43 or subchapter V of chapter 75 of title 5, 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 or transferred from the senior executive position or leaves employment at the Department prior to the issuance of a final decision with respect to such action, as the case may be.
“(2) The term lump-sum credit has the meaning given such term in section 8331(8) or section 8401(19) of title 5, as the case may be.
“(3) The term senior executive position has the meaning given such term in section 713(g)(3) of this title.
“(4) The term service has the meaning given such term in section 8331(12) or section 8401(26) of title 5, as the case may be.”
Clerical amendment— The table of sections at the beginning of chapter 7 is further amended by inserting after the item relating to section 715, as added by section 3, the following new item:
Application— Section 717 of title 38, United States Code, as added by subsection (a)(1), shall apply to any action of removal or transfer under section 713 of title 38, United States Code, commencing on or after the date of the enactment of this Act.
Sec. 5 Authority to recoup bonuses or awards paid to employees of Department of Veterans Affairs
In general— Chapter 7 is further amended by inserting after section 717, as added by section 4, the following new section:
“719. Recoupment of bonuses or awards paid to employees of Department
“(a) Recoupment—Notwithstanding any other provision of law, the Secretary may issue an order directing an employee of the Department to repay the amount, or a portion of the amount, of any award or bonus paid to the employee under title 5, including under chapter 45 or 53 of such title, or this title if—
“(1) the Secretary determines such repayment appropriate pursuant to regulations prescribed under subsection (c); and
“(2) before such repayment, the employee is afforded notice and an opportunity for a hearing conducted by another department or agency of the Federal Government.
“(b) Review
“(1) Upon the issuance of an order by the Secretary under subsection (a), the employee shall be afforded—
“(A) notice of the order and an opportunity to respond to the order; and
“(B) consistent with paragraph (2), an opportunity to appeal the order to another department or agency of the Federal Government.
“(2) If a final decision on an appeal made under paragraph (1)(B) is not made by the applicable department or agency of the Federal Government within 30 days after receiving such appeal, the order of the Secretary under subsection (a) shall be final and not subject to further appeal.
“(c) Regulations—The Secretary shall prescribe regulations to carry out this section.”
Clerical amendment— The table of sections at the beginning of chapter 7 is further amended by inserting after the item relating to section 717, as added by section 4, the following new item:
Effective date— Section 719 of title 38, United States Code, as added by subsection (a), shall apply with respect to an award or bonus paid by the Secretary of Veterans Affairs to an employee of the Department of Veterans Affairs on or after the date of the enactment of this Act.
Construction— Nothing in this section or the amendments made by this section may be construed to modify the certification issued by the Office of Personnel Management and the Office of Management and Budget regarding the performance appraisal system of the Senior Executive Service of the Department of Veterans Affairs.
Sec. 6 Authority to recoup relocation expenses paid to or on behalf of employees of Department of Veterans Affairs
In general— Chapter 7 is further amended by inserting after section 719, as added by section 5, the following new section:
“721. Recoupment of relocation expenses paid on behalf of employees of Department
“(a) Recoupment
“(1) Notwithstanding any other provision of law, the Secretary may direct an employee of the Department to repay the amount, or a portion of the amount, paid to or on behalf of the employee for relocation expenses under title 5, including any expenses under section 5724 or 5724a of such title, or this title if—
“(A) the Secretary determines that—
“(i) the employee has committed an act of fraud, waste, or malfeasance; and
“(ii) such repayment is appropriate pursuant to regulations prescribed under subsection (c); and
“(B) before such repayment is ordered, the individual is afforded—
“(i) notice of the determination of the Secretary and an opportunity to respond to the determination; and
“(ii) consistent with paragraph (2), an opportunity to appeal the determination to another department or agency of the Federal Government.
“(2) If a final decision on an appeal made under paragraph (1)(B)(ii) is not made by the applicable department or agency of the Federal Government within 30 days after receiving such appeal, the order of the Secretary under paragraph (1) shall be final and not subject to further appeal.
“(b) Review—A decision by the applicable department or agency of the Federal Government regarding a repayment by an employee pursuant to subsection (a)(1)(B)(ii) is final and may not be reviewed by any department, agency, or court.
“(c) Regulations—The Secretary shall prescribe regulations to carry out this section.”
Clerical amendment— The table of sections at the beginning of chapter 7 is further amended by inserting after the item relating to section 719, as added by section 5, the following new item:
Effective date— Section 721 of title 38, United States Code, as added by subsection (a), shall apply with respect to an amount paid by the Secretary of Veterans Affairs to or on behalf of an employee of the Department of Veterans Affairs for relocation expenses on or after the date of the enactment of this Act.
Construction— Nothing in this section or the amendments made by this section may be construed to modify the certification issued by the Office of Personnel Management and the Office of Management and Budget regarding the performance appraisal system of the Senior Executive Service of the Department of Veterans Affairs.
Sec. 7 Senior executives: personnel actions based on performance or misconduct
Expansion of covered personnel actions— Subsection (a)(1) of section 713 is amended, in the matter preceding subparagraph (A), by inserting after “such removal.” the following: “If the Secretary determines that the performance or misconduct of such an individual does not warrant removal from the Senior Executive Service position, the Secretary may suspend, reprimand, or admonish the individual.”.
Removal of appeal to Merit Systems Protection Board— Section 713 is further amended—
in subsection (a)—
in paragraph (1), by striking “so removes” and inserting “removes”; and
by adding at the end the following:
“(3) On the date that is 5 days before taking any personnel action against a senior executive under paragraph (1), the Secretary shall provide the individual with—
“(A) notice in writing of the proposed personnel action, including the reasons for such action; and
“(B) an opportunity to respond to the proposed personnel action within the 5-day period.”
in subsection (b)(2)—
by striking “under this section” and inserting “under section 723 of this title”; and
by striking the second sentence;
in subsection (c)—
by striking “30” and inserting “5”; and
by striking “and the reason for such removal or transfer” and inserting “, the reason for such removal or transfer, the name and position of the employee, and all charging documents and evidence pertaining to such removal or transfer”;
by striking subsections (d) and (e) and inserting the following:
“(d) Procedure
“(1) The procedures under title 5 shall not apply to any personnel action under this section.
“(2) Subject to paragraph (3), a personnel action under this section—
“(A) may be appealed to the Senior Executive Disciplinary Appeals Board under section 723; and
“(B) may not be appealed to the Merit Systems Protection Board under section 7701 of title 5.
“(3) An appeal under paragraph (2)(A) of a personnel action under this section may only be made if such appeal is made not later than seven days after the date of such action. If no such appeal is made, the decision of the Secretary under this section shall be final.”
by redesignating subsections (f) and (g) as subsections (e) and (f), respectively; and
in subsection (f), as redesignated by paragraph (5), by adding at the end the following:
“(4) The term suspend means the placing of an individual in a temporary status without duties and pay for a period greater than 14 days.”
Removal of expedited procedures— Section 707 of the Veterans Access, Choice, and Accountability Act of 2014 (38 U.S.C. 713 note) is amended by—
striking subsection (b); and
redesignating subsections (c) and (d) as subsections (b) and (c), respectively.
Senior Executive Disciplinary Appeals Board— Chapter 7 is further amended by inserting after section 721, as added by section 6, the following new section:
“723. Senior Executive Disciplinary Appeals Board
“(a) In general—The Secretary shall from time to time appoint a board to hear appeals of any personnel action taken under section 713. Such board shall be known as the Senior Executive Disciplinary Appeals Board (in this section referred to as the “Board”). Each Board shall consist of three employees of the Department. The Board shall have exclusive jurisdiction to review any personnel action under section 713.
“(b) Review and decision—Upon an appeal of such a personnel action, the Board shall—
“(1) review all evidence provided by the Secretary and the appellant; and
“(2) issue a decision not later than 21 days after the date of the appeal.
“(c) Hearing—The Board shall afford an employee appealing a personnel action an opportunity for an oral hearing. If such a hearing is held, the appellant may be represented by counsel.
“(d) Standard of review—The Board shall uphold the decision of the Secretary if—
“(1) there is substantial evidence supporting the decision; and
“(2) the applicable personnel action is within the tolerable bounds of reasonableness.
“(e) Reversal by Secretary—If the Board issues a decision under this section that reverses or otherwise mitigates the applicable personnel action, the Secretary may reverse the decision of the Board. Consistent with the requirements of subsection (g), the decision of the Secretary under this subsection shall be final.
“(f) No decision by Board—In any case in which the Board cannot issue a decision in accordance with the 21-day requirement under subsection (b)(2), the personnel action is final.
“(g) Appeal of decision—A petition to review a final order or final decision of the Secretary or the Board under this section shall be filed in the United States Court of Appeals for the Federal Circuit. Any decision by such Court shall be in compliance with section 7462(f)(2) of this title.
“(h) Prohibition on receipt of benefits—During the period beginning on the date on which an individual appeals a removal from the civil service under section 713(d) and ending on the date that the Board or Secretary issues a final decision on such appeal, such individual may not receive any pay, awards, bonuses, incentives, allowances, differentials, student loan repayments, special payments, or benefits from the Department.”
Technical and clerical amendments—
Technical amendment— The section heading of section 713 is amended to read as follows: “Senior executives: personnel actions based on performance or misconduct”.
Clerical amendments— The table of sections at the beginning of chapter 7 is further amended—
by striking the item relating to section 713 and inserting the following new item:
by inserting after the item relating to section 721 the following new item:
Rule of construction— Nothing in this section or section 723 of title 38, United States Code, as added by subsection (d), shall be construed to apply to an appeal of a removal, transfer, or other personnel action that was pending before the date of the enactment of this Act.
Sec. 8 Treatment of whistleblower complaints in Department of Veterans Affairs
In general— Chapter 7 is further amended by adding at the end the following new subchapter:
“II Whistleblower complaints
“741. Whistleblower complaint defined
“In this subchapter, the term whistleblower complaint means a complaint by an employee of the Department disclosing, or assisting another employee to disclose, a potential violation of any law (including any regulation) or rule, or gross mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health and safety.
“742. Treatment of whistleblower complaints
“(a) Filing
“(1) In addition to any other method established by law in which an employee may file a whistleblower complaint, an employee of the Department may file a whistleblower complaint in accordance with subsection (g) with a supervisor of the employee.
“(2) Except as provided by subsection (d)(1), in making a whistleblower complaint under paragraph (1), an employee shall file the initial complaint with the immediate supervisor of the employee.
“(b) Notification
“(1) Not later than four business days after the date on which a supervisor receives a whistleblower complaint by an employee under this section, the supervisor shall notify, in writing, the employee of whether the supervisor determines that there is a reasonable likelihood that the complaint discloses a violation of any law (including any regulation) or rule, or gross mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health and safety. The supervisor shall retain written documentation regarding the whistleblower complaint and shall submit to the next-level supervisor a written report on the complaint.
“(2) On a monthly basis, the supervisor shall submit to the appropriate director or other official who is superior to the supervisor a written report that includes the number of whistleblower complaints received by the supervisor under this section during the month covered by the report, the disposition of such complaints, and any actions taken because of such complaints pursuant to subsection (c). In the case in which such a director or official carries out this paragraph, the director or official shall submit such monthly report to the supervisor of the director or official.
“(c) Positive determination—If a supervisor makes a positive determination under subsection (b)(1) regarding a whistleblower complaint of an employee, the supervisor shall include in the notification to the employee under such subsection the specific actions that the supervisor will take to address the complaint.
“(d) Filing complaint with next-Level supervisors
“(1) If any circumstance described in paragraph (3) is met, an employee may file a whistleblower complaint in accordance with subsection (g) with the next-level supervisor who shall treat such complaint in accordance with this section.
“(2) An employee may file a whistleblower complaint with the Secretary if the employee has filed the whistleblower complaint to each level of supervisors between the employee and the Secretary in accordance with paragraph (1).
“(3) A circumstance described in this paragraph are any of the following circumstances:
“(A) A supervisor does not make a timely determination under subsection (b)(1) regarding a whistleblower complaint.
“(B) The employee who made a whistleblower complaint determines that the supervisor did not adequately address the complaint pursuant to subsection (c).
“(C) The immediate supervisor of the employee is the basis of the whistleblower complaint.
“(e) Transfer of employee who files whistleblower complaint—If a supervisor makes a positive determination under subsection (b)(1) regarding a whistleblower complaint filed by an employee, the Secretary shall—
“(1) inform the employee of the ability to volunteer for a transfer in accordance with section 3352 of title 5; and
“(2) give preference to the employee for such a transfer in accordance with such section.
“(f) Prohibition on exemption—The Secretary may not exempt any employee of the Department from being covered by this section.
“(g) Whistleblower complaint form
“(1) A whistleblower complaint filed by an employee under subsection (a) or (d) shall consist of the form described in paragraph (2) and any supporting materials or documentation the employee determines necessary.
“(2) The form described in this paragraph is a form developed by the Secretary, in consultation with the Special Counsel (established by section 1211 of title 5), that includes the following:
“(A) An explanation of the purpose of the whistleblower complaint form.
“(B) Instructions for filing a whistleblower complaint as described in this section.
“(C) An explanation that filing a whistleblower complaint under this section does not preclude the employee from any other method established by law in which an employee may file a whistleblower complaint.
“(D) A statement directing the employee to information accessible on the Internet website of the Department as described in section 745(c) of this title.
“(E) Fields for the employee to provide—
“(i) the date that the form is submitted;
“(ii) the name of the employee;
“(iii) the contact information of the employee;
“(iv) a summary of the whistleblower complaint (including the option to append supporting documents pursuant to paragraph (1)); and
“(v) proposed solutions to complaint.
“(F) Any other information or fields that the Secretary determines appropriate.
“(3) The Secretary, in consultation with the Special Counsel, shall develop the form described in paragraph (2) by not later than 60 days after the date of the enactment of this section.
“743. Adverse actions against supervisory employees who commit prohibited personnel actions relating to whistleblower complaints
“(a) In general
“(1) In accordance with paragraph (2), the Secretary shall carry out the following adverse actions against supervisory employees 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):
“(A) With respect to the first offense, an adverse action that is not less than a 14-day suspension and not more than removal.
“(B) With respect to the second offense, removal.
“(2)
“(A) Except as provided by subparagraph (B), and notwithstanding subsections (b) and (c) of section 7513 and section 7543 of title 5, the provisions of subsections (d) and (e) of section 713 of this title shall apply with respect to an adverse action carried out under paragraph (1).
“(B) An employee who is notified of being the subject of a proposed adverse action under paragraph (1) may not be given more than five days following such notification to provide evidence to dispute such proposed adverse action. If the employee does not provide any such evidence, 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 five-day period.
“(b) Limitation on other adverse actions—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).
“(c) Prohibited personnel action described—A prohibited personnel action described in this subsection is any of the following actions:
“(1) Taking or failing to take a personnel action in violation of section 2302 of title 5 against an employee relating to the employee—
“(A) filing a whistleblower complaint in accordance with section 742 of this title;
“(B) filing a whistleblower complaint with the Inspector General of the Department, the Special Counsel, or Congress;
“(C) providing information or participating as a witness in an investigation of a whistleblower complaint in accordance with section 742 or with the Inspector General of the Department, the Special Counsel, or Congress;
“(D) participating in an audit or investigation by the Comptroller General of the United States;
“(E) refusing to perform an action that is unlawful or prohibited by the Department; or
“(F) engaging in communications that are related to the duties of the position or are otherwise protected.
“(2) Preventing or restricting an employee from making an action described in any of subparagraphs (A) through (F) of paragraph (1).
“(3) Conducting a peer review or opening a retaliatory investigation relating to an activity of an employee that is protected by section 2302 of title 5.
“(4) Requesting a contractor to carry out an action that is prohibited by section 4705(b) or section 4712(a)(1) of title 41.
“744. Evaluation criteria of supervisors and treatment of bonuses
“(a) Evaluation criteria
“(1) In evaluating the performance of supervisors of the Department, the Secretary shall include the criteria described in paragraph (2).
“(2) The criteria described in this subsection are the following:
“(A) Whether the supervisor treats whistleblower complaints in accordance with section 742 of this title.
“(B) Whether the appropriate deciding official, performance review board, or performance review committee determines that the supervisor was found to have committed a prohibited personnel action described in section 743(c) of this title by 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, in the case of a settlement of a whistleblower complaint (regardless of whether any fault was assigned under such settlement), the Secretary.
“(b) Bonuses
“(1) The Secretary may not pay to a supervisor described in subsection (a)(2)(B) an award or bonus under this title or title 5, including under chapter 45 or 53 of title 5, during the one-year period beginning on the date on which the determination was made under such subsection.
“(2) Notwithstanding any other provision of law, the Secretary shall issue an order directing a supervisor described in subsection (a)(2)(B) to repay the amount of any award or bonus paid under this title or title 5, including under chapter 45 or 53 of title 5, if—
“(A) such award or bonus was paid for performance during a period in which the supervisor committed a prohibited personnel action as determined pursuant to such subsection (a)(2)(B);
“(B) the Secretary determines such repayment appropriate pursuant to regulations prescribed by the Secretary to carry out this section; and
“(C) before such order is made, the supervisor is afforded—
“(i) notice of the order and an opportunity to respond to the order; and
“(ii) an opportunity to appeal the order to another department or agency of the Federal Government, except that any such department or agency shall issue a final decision with respect to such appeal not later than the date that is 30 days after the date the department or agency received such appeal.
“745. Training regarding whistleblower complaints
“(a) Training—The Secretary, in coordination with the Whistleblower Protection Ombudsman designated under section 3(d)(1)(C) of the Inspector General Act of 1978 (5 U.S.C. App.), shall annually provide to each employee of the Department training regarding whistleblower complaints, including—
“(1) an explanation of each method established by law in which an employee may file a whistleblower complaint;
“(2) an explanation of prohibited personnel actions described in section 743(c) of this title;
“(3) with respect to supervisors, how to treat whistleblower complaints in accordance with section 742 of this title;
“(4) the right of the employee to petition Congress regarding a whistleblower complaint in accordance with section 7211 of title 5;
“(5) an explanation that the employee may not be prosecuted or reprised against for disclosing information to Congress in instances in which such disclosure is permitted by law, including under sections 5701, 5705, and 7332 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; 42 U.S.C. 1320d–2 note);
“(6) 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 (Public Law 112–199; 5 U.S.C. 2302 note); and
“(7) the right of contractors to be protected from reprisal for the disclosure of certain information under section 4705 or 4712 of title 41.
“(b) Certification—The Secretary shall annually provide training on merit system protection in a manner that the Special Counsel certifies as being satisfactory.
“(c) Publication
“(1) The Secretary shall publish on the Internet website of the Department, and display prominently at each facility of the Department, the rights of an employee to file a whistleblower complaint, including the information described in paragraphs (1) through (7) of subsection (a).
“(2) The Secretary shall publish on the Internet website of the Department the whistleblower complaint form described in section 742(g)(2) of this title.
“746. Notice to Congress
“Not later than 30 days after the date on which the Secretary receives from the Special Counsel information relating to a whistleblower complaint pursuant to section 1213 of title 5, the Secretary shall notify the Committee on Veterans’ Affairs of the Senate, the Committee on Veterans’ Affairs of the House of Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate, and the Committee on Oversight and Government Reform of the House of Representatives of such information, including the determination made by the Special Counsel.”
Conforming and clerical amendments—
Conforming amendment— Chapter 7 is further amended by inserting before section 701 the following:
“I General employee matters”
Clerical amendments— The table of sections at the beginning of chapter 7 is amended—
by inserting before the item relating to section 701 the following new item:
by adding at the end the following new items:
Sec. 9 Reform of rights and processes relating to appeals of decisions regarding claims for benefits under laws administered by Secretary of Veterans Affairs
Definitions— Section 101 is amended by adding at the end the following new paragraphs:
“(34) The term agency of original jurisdiction means the activity which entered the original determination with regard to a claim for benefits under laws administered by the Secretary.
“(35) The term relevant evidence means evidence that tends to prove or disprove a matter in issue.”
in paragraph (1), in the first sentence, by striking “The” and inserting “Except as provided in paragraph (3), the”;
in paragraph (2)(B)(i) by striking “, a claim for reopening a prior decision on a claim, or a claim for an increase in benefits;” and inserting “or a supplemental claim;”; and
by adding at the end the following new paragraph:
“(3) The requirement to provide notice under paragraph (1) shall not apply with respect to a supplemental claim that is filed within the time frame set forth in subparagraphs (B) and (D) of section 5110(a)(2) of this title.”
by striking “reopen” and inserting “readjudicate”; and
by striking “material” and inserting “relevant”.
Modification of duty To assist claimants—
in paragraph (1), by striking “The” and inserting “Except as otherwise provided in this subsection, the”; and
by adding at the end the following new paragraphs:
“(4) The Secretary’s duty to assist under paragraph (1) shall apply only to a claim, or supplemental claim, for a benefit under a law administered by the Secretary until the time that a claimant is provided notice of the decision of the agency of original jurisdiction with respect to such claim, or supplemental claim, under section 5104 of this title.
“(5) The Secretary’s duty to assist under paragraph (1) shall not apply to—
“(A) higher-level review by the agency of original jurisdiction, pursuant to section 5104B of this title; or
“(B) to review on appeal by the Board of Veterans’ Appeals.”
by redesignating subsections (e) through (g) as subsections (f) through (h), respectively; and
by inserting after subsection (d) the following new subsection:
“(e) Correction of duty To assist errors
“(1) If, during review of the agency of original jurisdiction decision under section 5104B of this title, the higher-level reviewer identifies an error on the part of the agency of original jurisdiction to satisfy its duties under this section, and that error occurred prior to the agency of original jurisdiction decision being reviewed, unless the claim can be granted in full, the higher-level reviewer shall return the claim for correction of such error and readjudication.
“(2)
“(A) If the Board, during review on appeal of a decision of the agency of original jurisdiction, identifies an error on the part of the agency of original jurisdiction to satisfy its duties under section 5103A of this title, and that error occurred prior to the decision of the agency of original jurisdiction on appeal, unless the claim can be granted in full, the Board shall remand the claim to the agency of original jurisdiction for correction of such error and readjudication.
“(B) Remand for correction of an error under suparagraph (A) may include directing the agency of original jurisdiction to obtain an advisory medical opinion under section 5109 of this title.”
Decisions and notices of decisions— Subsection (b) of section 5104 is amended to read as follows:
“(b) In any case where the Secretary denies a benefit sought, the notice required by subsection (a) shall also include all of the following:
“(1) Identification of the issues adjudicated.
“(2) A summary of the evidence considered by the Secretary.
“(3) A summary of the applicable laws and regulations.
“(4) Identification of findings favorable to the claimant.
“(5) Identification of elements not satisfied leading to the denial.
“(6) An explanation of how to obtain or access evidence used in making the decision.
“(7) If applicable, identification of the criteria that must be satisfied to grant service connection or the next higher level of compensation.”
Binding nature of favorable findings—
In general— Chapter 51 is amended by inserting after section 5104 the following new section:
“5104A. Binding nature of favorable findings
“Any finding favorable to the claimant as described in section 5104(b)(4) of this title shall be binding on all subsequent adjudicators within the Department, unless clear and convincing evidence is shown to the contrary to rebut such favorable finding.”
Clerical amendment— The table of sections at the beginning of chapter 51 is amended by inserting after the item relating to section 5104 the following new item:
Higher-Level review by agency of original jurisdiction—
In general— Chapter 51, as amended by subsection (f), is further amended by inserting after section 5104A, as added by such subsection, the following new section:
“5104B. Higher-level review by the agency of original jurisdiction
“(a) In general—A claimant may request a de novo review of the decision of the agency of original jurisdiction by a higher-level adjudicator within the agency of original jurisdiction.
“(b) Time and manner of request
“(1) A request for higher-level review by the agency of original jurisdiction shall be—
“(A) in writing in such form as the Secretary may prescribe; and
“(B) made within one year of the notice of the agency of original jurisdiction’s decision.
“(2) Such request may specifically indicate whether such review is requested by a higher-level adjudicator at the same office within the agency of original jurisdiction or by an adjudicator at a different office of the agency of original jurisdiction.
“(c) Decision—Notice of a higher-level review decision under this section shall be provided in writing.
“(d) Evidentiary record for review—The evidentiary record before the higher-level reviewer shall be limited to the evidence of record in the agency of original jurisdiction decision being reviewed.”
Clerical amendment— The table of sections at the beginning of chapter 51, as amended by subsection (f), is further amended by inserting after the item relating to section 5104A, as added by such subsection, the following new item:
Supplemental claims—
In general— Section 5108 is amended to read as follows:
“5108. Supplemental claims
“If new and relevant evidence is presented or secured with respect to a supplemental claim, the Secretary shall readjudicate the claim taking into consideration any evidence added to the record prior to the former disposition of the claim.”
Clerical amendment— The table of sections at the beginning of chapter 51 is amended by striking the item relating to section 5108 and inserting the following new item:
Remand of claim for advisory medical opinion— Section 5109 is amended by adding at the end the following new subsection:
“(d) The Board of Veterans’ Appeals may remand a claim to direct the agency of original jurisdiction to obtain an advisory medical opinion under this section to correct an error on the part of the agency of original jurisdiction to satisfy its duties under section 5103A of this title when such error occurred prior to the decision of the agency of original jurisdiction on appeal. The remand instructions set forth by the Board shall include the questions to be posed to the independent medical expert providing the advisory medical opinion.”
by amending subsection (a) to read as follows:
“(a)
“(1) Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.
“(2) For purposes of determining the effective date of an award under this section, the date of application shall be considered the date of the filing of the initial application for a benefit if the claim is continuously pursued by filing any of the following, either alone or in succession:
“(A) A request for higher-level review under section 5104B of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.
“(B) A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.
“(C) A notice of disagreement on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.
“(D) A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Board of Veterans’ Appeals issues a decision.
“(3) Except as otherwise provided in this section, for supplemental claims received more than one year after the date on which the agency of original jurisdiction issued a decision or the Board of Veterans’ Appeals issued a decision, the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the supplemental claim.”
in subsection (i), in the first sentence—
by striking “reopened” and inserting “readjudicated”;
by striking “material” and inserting “relevant”; and
by striking “reopening” and inserting “readjudication”.
Definition of award or increased award for purposes of provisions relating to commencement of period of payment— Section 5111(d)(1) is amended by striking “or reopened award” and inserting “award or award based on a supplemental claim”.
Modification on limitation on fees allowable for representation— Section 5904(c) is amended, in paragraphs (1) and (2), by striking “notice of disagreement is filed” both places it appears and inserting “claimant is provided notice of the agency of original jurisdiction’s initial decision under section 5104 of this title”.
Modification of Board of Veterans' Appeals referral requirements after order for reconsideration of decisions— Section 7103(b)(1) is amended by striking “heard” both places it appears and inserting “decided”.
Conforming amendment relating to readjudication by Board of Veterans' Appeals— Section 7104(b) is amended by striking “reopened” and inserting “readjudicated”.
Modification of rights and procedures for appeals to Board of Veterans' Appeals—
in subsection (a)—
by striking the first sentence and inserting “Appellate review shall be initiated by the filing of a notice of disagreement in the form prescribed by the Secretary.”; and
by striking “hearing and”;
by amending subsection (b) to read as follows:
“(b)
“(1)
“(A) Except in the case of simultaneously contested claims, notice of disagreement shall be filed within one year from the date of the mailing of notice of the decision of the agency of original jurisdiction pursuant to section 5104, 5104B, or 5108 of this title.
“(B) A notice of disagreement postmarked before the expiration of the one-year period shall be accepted as timely filed.
“(C) A question as to timeliness or adequacy of the notice of disagreement shall be decided by the Board.
“(2)
“(A) Notices of disagreement shall be in writing, shall set out specific allegations of error of fact or law, and may be filed by the claimant, the claimant's legal guardian, or such accredited representative, attorney, or authorized agent as may be selected by the claimant or legal guardian.
“(B) Not more than one recognized organization, attorney, or agent may be recognized at any one time in the prosecution of a claim.
“(C) Notices of disagreement shall be filed with the Board.
“(3)
“(A) The notice of disagreement shall indicate whether the claimant requests—
“(i) a hearing before the Board;
“(ii) an opportunity to submit additional evidence without a hearing before the Board; or
“(iii) a review by the Board without a hearing or submission of additional evidence.
“(B) If the claimant does not expressly request a hearing before the Board in the notice of disagreement, no hearing before the Board may be held.”
by amending subsection (c) to read as follows:
“(c) If no notice of disagreement is filed in accordance with this chapter within the prescribed period, the action or decision of the agency of original jurisdiction shall become final and the claim may not thereafter be readjudicated or allowed, except as may otherwise be provided by section 5104B or 5108 of this title or such regulations as the Secretary may promulgate that are consistent with this title.”
by striking subsection (d) and inserting the following new subsection (d):
“(d) The Board of Veterans’ Appeals may dismiss any appeal which fails to allege specific error of fact or law in the decision being appealed.”
by striking subsection (e); and
in the section heading, by striking “notice of disagreement and”.
Clerical amendment— The table of sections at the beginning of chapter 71 is amended by striking the item relating to section 7105 and inserting the following new item:
Modification of procedures and requirements for simultaneously contested claims— Subsection (b) of section 7105A is amended to read as follows:
“(b)
“(1) The substance of the notice of disagreement shall be communicated to the other party or parties in interest and a period of thirty days shall be allowed for filing a brief or argument in response thereto.
“(2) Such notice shall be forwarded to the last known address of record of the parties concerned, and such action shall constitute sufficient evidence of notice.”
Repeal of procedures for administrative appeals—
In general— Chapter 71 is amended by striking section 7106.
Clerical amendment— The table of sections at the beginning of chapter 71 is amended by striking the item relating to section 7106.
Modifications relating to appeals: dockets; hearings— Section 7107 is amended to read as follows:
“7107. Appeals: dockets; hearings
“(a) Dockets
“(1) The Board shall maintain two separate dockets as follows:
“(A) A non-hearing option docket shall be maintained for cases in which no Board hearing is requested and no additional evidence will be submitted.
“(B) A separate and distinct hearing option docket shall be maintained for cases in which a Board hearing is requested in the notice of disagreement or in which no Board hearing is requested, but the appellant requests, in the notice of disagreement, an opportunity to submit additional evidence.
“(2) Except as provided in subsection (b), each case before the Board will be decided in regular order according to its respective place on the Board’s non-hearing option docket or the hearing option docket.
“(b) Advancement on the docket
“(1) A case on either the Board’s non-hearing option docket or hearing option docket may, for cause shown, be advanced on motion for earlier consideration and determination.
“(2) Any such motion shall set forth succinctly the grounds upon which the motion is based.
“(3) Such a motion may be granted only—
“(A) if the case involves interpretation of law of general application affecting other claims;
“(B) if the appellant is seriously ill or is under severe financial hardship; or
“(C) for other sufficient cause shown.
“(c) Manner and scheduling of hearings for cases on board hearing option docket
“(1) For cases on the Board hearing option docket in which a hearing is requested in the notice of disagreement, the Board shall notify the appellant whether a Board hearing will be held—
“(A) at its principal location, or
“(B) by picture and voice transmission at a facility of the Department where the Secretary has provided suitable facilities and equipment to conduct such hearings.
“(2)
“(A) Upon notification of a Board hearing at the Board’s principal location as described in subparagraph (A) of paragraph (1), the appellant may alternatively request a hearing as described in subparagraph (B) of such paragraph. If so requested, the Board shall grant such request.
“(B) Upon notification of a Board hearing by picture and voice transmission as described in subparagraph (B) of paragraph (1), the appellant may alternatively request a hearing as described in subparagraph (A) of such paragraph. If so requested, the Board shall grant such request.
“(d) Screening of cases—Nothing in this section shall be construed to preclude the screening of cases for purposes of—
“(1) determining the adequacy of the record for decisional purposes; or
“(2) the development, or attempted development, of a record found to be inadequate for decisional purposes.”
Repeal of authority for independent medical opinions—
In general— Chapter 71 is amended by striking section 7109.
Clerical amendment— The table of sections at the beginning of chapter 71 is amended by striking the item relating to section 7109.
Modification of standard for review of decisions on grounds of clear and unmistakable error— Section 7111(e) is amended by striking “, without referral to any adjudicative or hearing official acting on behalf of the Secretary”.
Evidentiary record before Board of Veterans' Appeals—
In general— Chapter 71 is amended by adding at the end the following new section:
“7113. Evidentiary record before the Board of Veterans' Appeals
“(a) Non-Hearing option docket—For cases in which a hearing before the Board of Veterans' Appeals is not requested in the notice of disagreement, the evidentiary record before the Board shall be limited to the evidence of record at the time of the decision of the agency of original jurisdiction on appeal.
“(b) Hearing option docket
“(1)
“(A) Except as provided in subparagraph (B), for cases on the hearing option docket in which a hearing is requested in the notice of disagreement, the evidentiary record before the Board shall be limited to the evidence of record at the time of the decision of the agency of original jurisdiction on appeal.
“(B) The evidentiary record before the Board for cases on the hearing option docket in which a hearing is requested, shall include each of the following, which the Board shall consider in the first instance:
“(i) Evidence submitted by the appellant and his or her representative, if any, at the Board hearing.
“(ii) Evidence submitted by the appellant and his or her representative, if any, within 90 days following the Board hearing.
“(2)
“(A) Except as provided in subparagraph (B), for cases on the hearing option docket in which a hearing is not requested in the notice of disagreement, the evidentiary record before the Board shall be limited to the evidence considered by the agency of original jurisdiction in the decision on appeal.
“(B) The evidentiary record before the Board for cases on the hearing option docket in which a hearing is not requested, shall include each of the following, which the Board shall consider in the first instance:
“(i) Evidence submitted by the appellant and his or her representative, if any, with the notice of disagreement.
“(ii) Evidence submitted by the appellant and his or her representative, if any, within 90 days following receipt of the notice of disagreement.”
Clerical amendment— The table of sections at the beginning of chapter 71 is amended by inserting after the item relating to section 7112 the following new item:
Sec. 10 Limitation on awards and bonuses paid to senior executive employees of Department of Veterans Affairs
Section 705 of the Veterans Access, Choice, and Accountability Act of 2014 (Public Law 113–146; 38 U.S.C. 703 note) is amended by striking the period at the end and inserting the following: “, except that during each of fiscal years 2017 through 2021, no award or bonus may be paid to any employee of the Department of Veterans Affairs who is a member of the Senior Executive Service.”.