H.R. 1259 — what changed

“719. Employees: removal, demotion, or suspension based on performance or misconduct

“(a) In general—The Secretary may remove, demote, or suspend an individual who is an employee of the Department if the Secretary determines the performance or misconduct of the individual warrants such removal, demotion, or suspension. If the Secretary so removes, demotes, or suspends such an individual, the Secretary may—

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

“(2) demote the individual by means of a reduction in grade for which the individual is qualified, that the Secretary determines is appropriate, and that reduces the annual rate of pay of the individual; or

“(3) suspend the individual.

“(b) Pay of certain demoted individuals

“(1) Notwithstanding any other provision of law, any individual subject to a demotion under subsection (a)(2) 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 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 or is approved to use accrued unused annual, sick, family medical, military, or court leave. If an individual so demoted does not report for duty or receive approval to use accrued unused leave, such individual shall not receive pay or other benefits pursuant to subsection (e)(5).

“(c) Notice to Congress

“(1) Not later than 30 days after removing, demoting, or suspending an individual employed in a senior executive position under subsection (a) or after removing, demoting, or suspending an individual under chapter 74 of this title, the Secretary shall submit to the Committees on Veterans' Affairs of the Senate and House of Representatives and to each Member of Congress representing a district in the State or territory where the facility where the individual was employed immediately before being removed, demoted, or suspended is located notice in writing of such removal, demotion, or suspension. Such notice shall include the job title of the individual, the location where the individual was employed immediately before being removed, demoted, or suspended, the proposed action, and the reason for such removal, demotion, or suspension.

“(2) Not later than 30 days after the last day of a fiscal year, the Secretary shall submit to the Committees on Veterans' Affairs of the Senate and House of Representatives a report listing all removals, demotions, and suspensions under this section or under chapter 74 of this title during such fiscal year. Each such report shall include the job title of each individual removed, demoted, or suspended, the location where the individual was employed immediately before being so removed, demoted or suspended, the proposed action, and the reason for such removal, demotion, or suspension.

“(3) In this subsection, the term “senior executive position” means, with respect to a career appointee (as that term is defined in section 3132(a)(4) of title 5), a Senior Executive Service position (as such term is defined in section 3132(a)(2) of title 5).

“(d) Procedure

“(1) Subsection (b) of section 7513 of title 5 shall apply with respect to a removal, demotion, or suspension 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 10 business days. Subsection (c) of such section and section 7121 of such title shall not apply with respect to such a removal, demotion, or suspension.

“(2) The Secretary shall issue a final decision with respect to a removal, demotion, or suspension under this section—

“(A) in the case of a proposed removal, demotion, or suspension to which an individual responds under paragraph (1), not later than five business days after receiving the response of the individual; or

“(B) in the case of a proposed removal, demotion, or suspension to which an individual does not respond, not later than 15 business days after the Secretary provides notice to the individual under paragraph (1).

“(3) The procedures under chapter 43 of title 5 shall not apply to a removal, demotion, or suspension under this section.

“(4)

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

“(B) An appeal under subparagraph (A) of a removal, demotion, or suspension may only be made if such appeal is made not later than 7 days after the date of such removal, demotion, or suspension.

“(e) Expedited Review

“(1) Upon receipt of an appeal under subsection (d)(4)(A), the administrative judge shall expedite any such appeal under such section and, in any such case, shall issue a final and complete decision not later than 45 business days after the date of the appeal.

“(2) Notwithstanding section 7701(c)(1)(B) of title 5, the administrative judge shall uphold the decision of the Secretary to remove, demote, or suspend an employee under subsection (a) if the decision is supported by substantial evidence. If the decision of the Secretary is supported by substantial evidence, the administrative judge shall not mitigate the penalty prescribed by the Secretary.

“(3)

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

“(B) An appeal under subparagraph (A) of a decision of an administrative judge may only be made if such appeal is made not later than 7 business days after the date of the decision of the administrative judge.

“(4) In any case in which the administrative judge cannot issue a decision in accordance with the 45-day requirement under paragraph (1), the Merit Systems Protection Board shall, not later than 14 business days after the expiration of the 45-day period, submit to the Committees on Veterans' Affairs of the Senate and House of Representatives a report that explains the reasons why a decision was not issued in accordance with such requirement.

“(5)

“(A) A decision of the Merit Systems Protection Board under paragraph (3) may be appealed to the United States Court of Appeals for the Federal Circuit pursuant to section 7703 of title 5.

“(B) An appeal under subparagraph (A) of a decision of the Merit Systems Protection Board may only be made if such appeal is made not later than 7 business days after the date of the decision of the Board.

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

“(6) The Merit Systems Protection Board may not stay any removal, demotion, under this section.

“(7) 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 United States Court of Appeals for the Federal Circuit 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 related to the employment of the individual by the Department.

“(8) 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.

“(9) If an employee prevails on appeal under this section, the employee shall be entitled to backpay (as provided in section 5596 of title 5).

“(10) This subsection shall supercede any collective bargaining agreement to the extent that such an agreement conflicts with this subsection.

“(f) Whistleblower protection

changed “(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, 5 or section 733(c) of this title, the Secretary may not remove, demote, or suspend 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 731 of this title, the Secretary may not remove, demote, or suspend 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) Vacancies—In the case of an individual who is removed or demoted under subsection (a), to the maximum extent feasible, the Secretary shall fill the vacancy arising as a result of such removal or demotion.

changed “(i) Definitions—In this section:Semi-Annual report on transferred employees—The Secretary shall submit to the Committees on Veterans’ Affairs of the Senate and House of Representatives semi-annual reports on senior executive employees who are transferred within the Department. Each such report shall include, for each such senior executive employee transferred during the period covered by the report, the reason for the transfer and any costs associated with the transfer.

added “(j) Definitions—In this section:

“(1) The term individual means an individual occupying a position at the Department but does not include—

“(A) an individual appointed pursuant to section 7306, 7401(1), or 7405 of this title;

“(B) an individual who has not completed a probationary or trial period; or

“(C) a political appointee.

“(2) 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.

“(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 of the Code of Federal Regulations.”

“(4) any removal or demotion under section 719 of title 38.”

changed “725. Recoupment of relocation expenses paid to or on behalf of employees of Department

“(a) In general—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, paid to or on behalf of the employee under title 5 for relocation expenses, including any expenses under section 5724 or 5724a of such title, or this title if—

“(1) the Secretary determines that relocation expenses were not lawfully authorized or that the employee committed an act of fraud, waste, or malfeasance that influenced the authorization of the relocation expenses;

“(2) before such repayment, the employee is afforded—

“(A) notice of the proposed order; and

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

“(3) the Secretary issues the order—

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

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

“(b) Appeals—Upon the issuance of an order by the Secretary under subsection (a), the individual shall have an opportunity to appeal the order to another department or agency of the Federal Government before the date that is seven business days after the date of such issuance.

“(c) Final decisions—The head of the applicable department or agency of the Federal Government shall make a final decision with respect to an appeal under subsection (b) within 30 days after receiving such appeal.”