II 

115TH CONGRESS 

1ST SESSION S. 1094 

To amend title 38, United States Code, to improve the accountability of 

employees of the Department of Veterans Affairs, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MAY 11, 2017 

Mr. RUBIO (for himself, Mr. TESTER, Mr. ISAKSON, Mr. NELSON, Mr. 

MCCAIN, Mrs. SHAHEEN, Mr. MORAN, Ms. BALDWIN, Mr. HELLER, and 

Mr. FLAKE) 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 improve the 

accountability of employees of the Department of Veterans Affairs, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Department of Veterans Affairs Accountability and 

6 Whistleblower Protection Act of 2017’’. 

7 (b) TABLE OF CONTENTS.—The table of contents for 

8 this Act is as follows: 

Sec. 1. Short title; table of contents. 


lotter on DSK5VPTVN1PROD with BILLS
2 

•S 1094 IS

TITLE I—OFFICE OF ACCOUNTABILITY AND WHISTLEBLOWER 

PROTECTION 

Sec. 101. Establishment of Office of Accountability and Whistleblower Protection. 

Sec. 102. Protection of whistleblowers in Department of Veterans Affairs. 

Sec. 103. Report on methods used to investigate employees of Department of 

Veterans Affairs. 

TITLE II—ACCOUNTABILITY OF SENIOR EXECUTIVES, 

SUPERVISORS, AND OTHER EMPLOYEES 

Sec. 201. Improved authorities of Secretary of Veterans Affairs to improve accountability of senior executives. 

Sec. 202. Improved authorities of Secretary of Veterans Affairs to improve accountability of employees. 

Sec. 203. Reduction of benefits for Department of Veterans Affairs employees 

convicted of certain crimes. 

Sec. 204. Authority to recoup bonuses or awards paid to employees of Department of Veterans Affairs. 

Sec. 205. Authority to recoup relocation expenses paid to or on behalf of employees of Department of Veterans Affairs. 

Sec. 206. Time period for response to notice of adverse actions against supervisory employees who commit prohibited personnel actions. 

Sec. 207. Direct hiring authority for medical center directors and VISN directors. 

Sec. 208. Time periods for review of adverse actions with respect to certain employees. 

Sec. 209. Improvement of training for supervisors. 

Sec. 210. Assessment and report on effect on senior executives at Department 

of Veterans Affairs. 

Sec. 211. Measurement of Department of Veterans Affairs disciplinary process 

outcomes and effectiveness. 

1 TITLE I—OFFICE OF ACCOUNT2 ABILITY AND WHISTLE3 BLOWER PROTECTION 

4 SEC. 101. ESTABLISHMENT OF OFFICE OF ACCOUNT5 ABILITY AND WHISTLEBLOWER PROTECTION. 

6 (a) IN GENERAL.—Chapter 3 of title 38, United 

7 States Code, is amended by adding at the end the fol8 lowing new section: 


lotter on DSK5VPTVN1PROD with BILLS
3 

•S 1094 IS

1 ‘‘§ 323. Office of Accountability and Whistleblower 

2 Protection 

3 ‘‘(a) ESTABLISHMENT.—There is established in the 

4 Department an office to be known as the ‘Office of Ac5 countability and Whistleblower Protection’ (in this section 

6 referred to as the ‘Office’). 

7 ‘‘(b) HEAD OF OFFICE.—(1) The head of the Office 

8 shall be responsible for the functions of the Office and 

9 shall be appointed by the President pursuant to section 

10 308(a) of this title. 

11 ‘‘(2) The head of the Office shall be known as the 

12 ‘Assistant Secretary for Accountability and Whistleblower 

13 Protection’. 

14 ‘‘(3) The Assistant Secretary shall report directly to 

15 the Secretary on all matters relating to the Office. 

16 ‘‘(4) Notwithstanding section 308(b) of this title, the 

17 Secretary may only assign to the Assistant Secretary re18 sponsibilities relating to the functions of the Office set 

19 forth in subsection (c). 

20 ‘‘(c) FUNCTIONS.—(1) The functions of the Office 

21 are as follows: 

22 ‘‘(A) Advising the Secretary on all matters of 

23 the Department relating to accountability, including 

24 accountability of employees of the Department, re25 taliation against whistleblowers, and such matters as 


lotter on DSK5VPTVN1PROD with BILLS
4 

•S 1094 IS

1 the Secretary considers similar and affect public 

2 trust in the Department. 

3 ‘‘(B) Issuing reports and providing rec4 ommendations related to the duties described in sub5 paragraph (A). 

6 ‘‘(C) Receiving whistleblower disclosures. 

7 ‘‘(D) Referring whistleblower disclosures re8 ceived under subparagraph (C) for investigation to 

9 the Office of the Medical Inspector, the Office of In10 spector General, or other investigative entity, as ap11 propriate, if the Assistant Secretary has reason to 

12 believe the whistleblower disclosure is evidence of a 

13 violation of a provision of law, mismanagement, 

14 gross waste of funds, abuse of authority, or a sub15 stantial and specific danger to public health and 

16 safety. 

17 ‘‘(E) Receiving and referring disclosures from 

18 the Special Counsel for investigation to the Medical 

19 Inspector of the Department, the Inspector General 

20 of the Department, or such other person with inves21 tigatory authority, as the Assistant Secretary con22 siders appropriate. 

23 ‘‘(F) Recording, tracking, reviewing, and con24 firming implementation of recommendations from 

25 audits and investigations carried out by the InspecVerDate Sep 11 2014 02:25 May 13, 2017 Jkt 069200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.IS S1094

lotter on DSK5VPTVN1PROD with BILLS
5 

•S 1094 IS

1 tor General of the Department, the Medical Inspec2 tor of the Department, the Special Counsel, and the 

3 Comptroller General of the United States, including 

4 the imposition of disciplinary actions and other cor5 rective actions contained in such recommendations. 

6 ‘‘(G) Analyzing data from the Office and the 

7 Office of Inspector General telephone hotlines, other 

8 whistleblower disclosures, disaggregated by facility 

9 and area of health care if appropriate, and relevant 

10 audits and investigations to identify trends and issue 

11 reports to the Secretary based on analysis conducted 

12 under this subparagraph. 

13 ‘‘(H) Receiving, reviewing, and investigating al14 legations of misconduct, retaliation, or poor perform15 ance involving— 

16 ‘‘(i) an individual in a senior executive po17 sition (as defined in section 713(d) of this title) 

18 in the Department; 

19 ‘‘(ii) an individual employed in a confiden20 tial, policy-making, policy-determining, or pol21 icy-advocating position in the Department; or 

22 ‘‘(iii) a supervisory employee, if the allega23 tion involves retaliation against an employee for 

24 making a whistleblower disclosure. 


lotter on DSK5VPTVN1PROD with BILLS
6 

•S 1094 IS

1 ‘‘(I) Making such recommendations to the Sec2 retary for disciplinary action as the Assistant Sec3 retary considers appropriate after substantiating any 

4 allegation of misconduct or poor performance pursu5 ant to an investigation carried out as described in 

6 subparagraph (F) or (H). 

7 ‘‘(2) In carrying out the functions of the Office, the 

8 Assistant Secretary shall ensure that the Office maintains 

9 a toll-free telephone number and Internet website to re10 ceive anonymous whistleblower disclosures. 

11 ‘‘(3) In any case in which the Assistant Secretary re12 ceives a whistleblower disclosure from an employee of the 

13 Department under paragraph (1)(C), the Assistant Sec14 retary may not disclose the identity of the employee with15 out the consent of the employee, except in accordance with 

16 the provisions of section 552a of title 5, or as required 

17 by any other applicable provision of Federal law. 

18 ‘‘(d) STAFF AND RESOURCES.—The Secretary shall 

19 ensure that the Assistant Secretary has such staff, re20 sources, and access to information as may be necessary 

21 to carry out the functions of the Office. 

22 ‘‘(e) RELATION TO OFFICE OF GENERAL COUN23 SEL.—The Office shall not be established as an element 

24 of the Office of the General Counsel and the Assistant 

25 Secretary may not report to the General Counsel. 


lotter on DSK5VPTVN1PROD with BILLS
7 

•S 1094 IS

1 ‘‘(f) REPORTS.—(1)(A) Not later than June 30 of 

2 each calendar year, beginning with June 30, 2017, the As3 sistant Secretary shall submit to the Committee on Vet4 erans’ Affairs of the Senate and the Committee on Vet5 erans’ Affairs of the House of Representatives a report 

6 on the activities of the Office during the calendar year 

7 in which the report is submitted. 

8 ‘‘(B) Each report submitted under subparagraph (A) 

9 shall include, for the period covered by the report, the fol10 lowing: 

11 ‘‘(i) A full and substantive analysis of the ac12 tivities of the Office, including such statistical infor13 mation as the Assistant Secretary considers appro14 priate. 

15 ‘‘(ii) Identification of any issues reported to the 

16 Secretary under subsection (c)(1)(G), including such 

17 data as the Assistant Secretary considers relevant to 

18 such issues and any trends the Assistant Secretary 

19 may have identified with respect to such issues. 

20 ‘‘(iii) Identification of such concerns as the As21 sistant Secretary may have regarding the size, staff22 ing, and resources of the Office and such rec23 ommendations as the Assistant Secretary may have 

24 for legislative or administrative action to address 

25 such concerns. 


lotter on DSK5VPTVN1PROD with BILLS
8 

•S 1094 IS

1 ‘‘(iv) Such recommendations as the Assistant 

2 Secretary may have for legislative or administrative 

3 action to improve— 

4 ‘‘(I) the process by which concerns are re5 ported to the Office; and 

6 ‘‘(II) the protection of whistleblowers with7 in the Department. 

8 ‘‘(v) Such other matters as the Assistant Sec9 retary considers appropriate regarding the functions 

10 of the Office or other matters relating to the Office. 

11 ‘‘(2) If the Secretary receives a recommendation for 

12 disciplinary action under subsection (c)(1)(I) and does not 

13 take or initiate the recommended disciplinary action before 

14 the date that is 60 days after the date on which the Sec15 retary received the recommendation, the Secretary shall 

16 submit to the Committee on Veterans’ Affairs of the Sen17 ate and the Committee on Veterans’ Affairs of the House 

18 of Representatives a detailed justification for not taking 

19 or initiating such disciplinary action. 

20 ‘‘(g) DEFINITIONS.—In this section: 

21 ‘‘(1) The term ‘supervisory employee’ means an 

22 employee of the Department who is a supervisor as 

23 defined in section 7103(a) of title 5. 

24 ‘‘(2) The term ‘whistleblower’ means one who 

25 makes a whistleblower disclosure. 


lotter on DSK5VPTVN1PROD with BILLS
9 

•S 1094 IS

1 ‘‘(3) The term ‘whistleblower disclosure’ means 

2 any disclosure of information by an employee of the 

3 Department or individual applying to become an em4 ployee of the Department which the employee or in5 dividual reasonably believes evidences— 

6 ‘‘(A) a violation of a provision of law; or 

7 ‘‘(B) gross mismanagement, a gross waste 

8 of funds, an abuse of authority, or a substantial 

9 and specific danger to public health or safety.’’. 

10 (b) CONFORMING AMENDMENT.—Section 308(b) of 

11 such title is amended by adding at the end the following 

12 new paragraph: 

13 ‘‘(12) The functions set forth in section 323(c) 

14 of this title.’’. 

15 (c) CLERICAL AMENDMENT.—The table of sections 

16 at the beginning of chapter 3 of such title is amended by 

17 adding at the end the following new item: 

‘‘323. Office of Accountability and Whistleblower Protection.’’. 

18 SEC. 102. PROTECTION OF WHISTLEBLOWERS IN DEPART19 MENT OF VETERANS AFFAIRS. 

20 (a) IN GENERAL.—Subchapter II of chapter 7 of title 

21 38, United States Code, is amended by— 

22 (1) striking sections 731, 732, 734, 735, and 

23 736; 

24 (2) by redesignating section 733 as section 731; 

25 and 


lotter on DSK5VPTVN1PROD with BILLS
10 

•S 1094 IS

1 (3) by adding at the end the following new sec2 tions: 

3 ‘‘§ 732. Protection of whistleblowers as criteria in 

4 evaluation of supervisors 

5 ‘‘(a) DEVELOPMENT AND USE OF CRITERIA RE6 QUIRED.—The Secretary, in consultation with the Assist7 ant Secretary of Accountability and Whistleblower Protec8 tion, shall develop criteria that— 

9 ‘‘(1) the Secretary shall use as a critical ele10 ment in any evaluation of the performance of a su11 pervisory employee; and 

12 ‘‘(2) promotes the protection of whistleblowers. 

13 ‘‘(b) PRINCIPLES FOR PROTECTION OF WHISTLE14 BLOWERS.—The criteria required by subsection (a) shall 

15 include principles for the protection of whistleblowers, 

16 such as the degree to which supervisory employees respond 

17 constructively when employees of the Department report 

18 concerns, take responsible action to resolve such concerns, 

19 and foster an environment in which employees of the De20 partment feel comfortable reporting concerns to super21 visory employees or to the appropriate authorities. 

22 ‘‘(c) SUPERVISORY EMPLOYEE AND WHISTLE23 BLOWER DEFINED.—In this section, the terms ‘super24 visory employee’ and ‘whistleblower’ have the meanings 

25 given such terms in section 323 of this title. 


lotter on DSK5VPTVN1PROD with BILLS
11 

•S 1094 IS

1 ‘‘§ 733. Training regarding whistleblower disclosures 

2 ‘‘(a) TRAINING.—Not less frequently than once every 

3 two years, the Secretary, in coordination with the Whistle4 blower Protection Ombudsman designated under section 

5 3(d)(1)(C) of the Inspector General Act of 1978 (5 U.S.C. 

6 App.), shall provide to each employee of the Department 

7 training regarding whistleblower disclosures, including— 

8 ‘‘(1) an explanation of each method established 

9 by law in which an employee may file a whistle10 blower disclosure; 

11 ‘‘(2) the right of the employee to petition Con12 gress regarding a whistleblower disclosure in accord13 ance with section 7211 of title 5; 

14 ‘‘(3) an explanation that the employee may not 

15 be prosecuted or reprised against for disclosing in16 formation to Congress, the Inspector General, or an17 other investigatory agency in instances where such 

18 disclosure is permitted by law, including under sec19 tions 5701, 5705, and 7732 of this title, under sec20 tion 552a of title 5 (commonly referred to as the 

21 Privacy Act), under chapter 93 of title 18, and pur22 suant to regulations promulgated under section 

23 264(c) of the Health Insurance Portability and Ac24 countability Act of 1996 (Public Law 104–191); 

25 ‘‘(4) an explanation of the language that is re26 quired to be included in all nondisclosure policies, 


lotter on DSK5VPTVN1PROD with BILLS
12 

•S 1094 IS

1 forms, and agreements pursuant to section 

2 115(a)(1) of the Whistleblower Protection Enhance3 ment Act of 2012 (5 U.S.C. 2302 note); and 

4 ‘‘(5) the right of contractors to be protected 

5 from reprisal for the disclosure of certain informa6 tion under section 4705 or 4712 of title 41. 

7 ‘‘(b) MANNER TRAINING IS PROVIDED.—The Sec8 retary shall ensure, to the maximum extent practicable, 

9 that training provided under subsection (a) is provided in 

10 person. 

11 ‘‘(c) CERTIFICATION.—Not less frequently than once 

12 every two years, the Secretary shall provide training on 

13 merit system protection in a manner that the Special 

14 Counsel certifies as being satisfactory. 

15 ‘‘(d) PUBLICATION.—The Secretary shall publish on 

16 the Internet website of the Department, and display 

17 prominently at each facility of the Department, the rights 

18 of an employee to make a whistleblower disclosure, includ19 ing the information described in paragraphs (1) through 

20 (5) of subsection (a). 

21 ‘‘(e) WHISTLEBLOWER DISCLOSURE DEFINED.—In 

22 this section, the term ‘whistleblower disclosure’ has the 

23 meaning given such term in section 323 of this title.’’. 

24 (b) CLERICAL AMENDMENTS.—The table of sections 

25 at the beginning of such chapter is amended— 


lotter on DSK5VPTVN1PROD with BILLS
13 

•S 1094 IS

1 (1) by striking the items relating to sections 

2 731 through 736; and 

3 (2) by adding at the end the following new 

4 items: 

‘‘731. Adverse actions against supervisory employees who commit prohibited personnel actions relating to whistleblower complaints. 

‘‘732. Protection of whistleblowers as criteria in evaluation of supervisors. 

‘‘733. Training regarding whistleblower disclosures.’’. 

5 (c) CONFORMING AMENDMENTS.—Section 731 of 

6 such title, as redesignated by subsection (a)(2), is amend7 ed— 

8 (1) in subsection (c)— 

9 (A) in paragraph (1)— 

10 (i) by striking subparagraphs (A) and 

11 (B) and inserting the following: 

12 ‘‘(A) making a whistleblower disclosure to 

13 the Assistant Secretary for Accountability and 

14 Whistleblower Protection, the Inspector General 

15 of the Department, the Special Counsel, or 

16 Congress;’’; and 

17 (ii) by redesignating subparagraphs 

18 (C) through (F) as subparagraphs (B) 

19 through (E), respectively; and 

20 (iii) in subparagraph (B), as redesig21 nated by clause (ii), by striking ‘‘complaint 

22 in accordance with section 732 or with’’ 

23 and inserting ‘‘disclosure made to the AsVerDate Sep 11 2014 02:25 May 13, 2017 Jkt 069200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.IS S1094

lotter on DSK5VPTVN1PROD with BILLS
14 

•S 1094 IS

1 sistant Secretary for Accountability and 

2 Whistleblower Protection,’’; and 

3 (B) in paragraph (2), by striking ‘‘through 

4 (F)’’ and inserting ‘‘through (E)’’; and 

5 (2) by adding at the end the following new sub6 section: 

7 ‘‘(d) WHISTLEBLOWER DISCLOSURE DEFINED.—In 

8 this section, the term ‘whistleblower disclosure’ has the 

9 meaning given such term in section 323(g) of this title.’’. 

10 SEC. 103. REPORT ON METHODS USED TO INVESTIGATE EM11 PLOYEES OF DEPARTMENT OF VETERANS AF12 FAIRS. 

13 (a) REPORT REQUIRED.—Not later than 540 days 

14 after the date of the enactment of this Act, the Assistant 

15 Secretary for Accountability and Whistleblower Protection 

16 shall submit to the Secretary of Veterans Affairs, the 

17 Committee on Veterans’ Affairs of the Senate, and the 

18 Committee on Veterans’ Affairs of the House of Rep19 resentatives a report on methods used to investigate em20 ployees of the Department of Veterans Affairs and wheth21 er such methods are used to retaliate against whistle22 blowers. 

23 (b) CONTENTS.—The report required by subsection 

24 (a) shall include the following: 


lotter on DSK5VPTVN1PROD with BILLS
15 

•S 1094 IS

1 (1) An assessment of the use of administrative 

2 investigation boards, peer review, searches of med3 ical records, and other methods for investigating em4 ployees of the Department. 

5 (2) A determination of whether and to what de6 gree the methods described in paragraph (1) are 

7 being used to retaliate against whistleblowers. 

8 (3) Recommendations for legislative or adminis9 trative action to implement safeguards to prevent 

10 the retaliation described in paragraph (2). 

11 (c) WHISTLEBLOWER DEFINED.—In this section, the 

12 term ‘‘whistleblower’’ has the meaning given such term in 

13 section 323 of title 38, United States Code, as added by 

14 section 101. 

15 TITLE II—ACCOUNTABILITY OF 

16 SENIOR EXECUTIVES, SUPER17 VISORS, AND OTHER EMPLOY18 EES 

19 SEC. 201. IMPROVED AUTHORITIES OF SECRETARY OF VET20 ERANS AFFAIRS TO IMPROVE ACCOUNT21 ABILITY OF SENIOR EXECUTIVES. 

22 (a) IN GENERAL.—Section 713 of title 38, United 

23 States Code, is amended to read as follows: 


lotter on DSK5VPTVN1PROD with BILLS
16 

•S 1094 IS

1 ‘‘§ 713. Senior executives: removal, demotion, or sus2 pension based on performance or mis3 conduct 

4 ‘‘(a) AUTHORITY.—(1) The Secretary may, as pro5 vided in this section, reprimand or suspend, involuntarily 

6 reassign, demote, or remove a covered individual from a 

7 senior executive position at the Department if the Sec8 retary determines that the misconduct or performance of 

9 the covered individual warrants such action. 

10 ‘‘(2) If the Secretary so removes such an individual, 

11 the Secretary may remove the individual from the civil 

12 service (as defined in section 2101 of title 5). 

13 ‘‘(b) RIGHTS AND PROCEDURES.—(1) A covered indi14 vidual who is the subject of an action under subsection 

15 (a) is entitled to— 

16 ‘‘(A) advance notice of the action; 

17 ‘‘(B) be represented by an attorney or other 

18 representative of the covered individual’s choice; and 

19 ‘‘(C) grieve the action in accordance with an in20 ternal grievance process that the Secretary, in con21 sultation with the Assistant Secretary for Account22 ability and Whistleblower Protection, shall establish 

23 for purposes of this subsection. 

24 ‘‘(2)(A) The aggregate period for notice, response, 

25 and decision on an action under subsection (a) may not 

26 exceed 15 business days. 


lotter on DSK5VPTVN1PROD with BILLS
17 

•S 1094 IS

1 ‘‘(B) The period for the response of a covered indi2 vidual to a notice under paragraph (1)(A) of an action 

3 under subsection (a) shall be 7 business days. 

4 ‘‘(C) A decision under this paragraph on an action 

5 under subsection (a) shall be issued not later than 15 busi6 ness days after notice of the action is provided to the cov7 ered individual under paragraph (1)(A). The decision shall 

8 be in writing, and shall include the specific reasons there9 for and a file containing all evidence in support of the pro10 posed action. 

11 ‘‘(3)(A) The Secretary shall ensure that the grievance 

12 process established under paragraph (1)(C) takes fewer 

13 than 21 days. 

14 ‘‘(B) The Secretary shall ensure that grievances 

15 under this subsection are reviewed only by employees of 

16 the Department. 

17 ‘‘(4) A decision under paragraph (2) that is not 

18 grieved, and a grievance decision under paragraph (3), 

19 shall be final and conclusive. 

20 ‘‘(5) A covered individual adversely affected by a deci21 sion under paragraph (2) that is not grieved, or by a griev22 ance decision under paragraph (3), may obtain judicial re23 view of such decision. 


lotter on DSK5VPTVN1PROD with BILLS
18 

•S 1094 IS

1 ‘‘(6) In any case in which judicial review is sought 

2 under paragraph (5), the court shall review the record and 

3 may set aside any Department action found to be— 

4 ‘‘(A) arbitrary, capricious, an abuse of discre5 tion, or otherwise not in accordance with a provision 

6 of law; 

7 ‘‘(B) obtained without procedures required by a 

8 provision of law having been followed; or 

9 ‘‘(C) unsupported by substantial evidence. 

10 ‘‘(c) RELATION TO OTHER PROVISIONS OF LAW.— 

11 Section 3592(b)(1) of title 5 and the procedures under 

12 section 7543(b) of such title do not apply to an action 

13 under subsection (a). 

14 ‘‘(d) DEFINITIONS.—In this section: 

15 ‘‘(1) The term ‘covered individual’ means— 

16 ‘‘(A) a career appointee (as that term is 

17 defined in section 3132(a)(4) of title 5); or 

18 ‘‘(B) any individual who occupies an ad19 ministrative or executive position and who was 

20 appointed under section 7306(a) or section 

21 7401(1) of this title. 

22 ‘‘(2) The term ‘misconduct’ includes neglect of 

23 duty, malfeasance, or failure to accept a directed re24 assignment or to accompany a position in a transfer 

25 of function. 


lotter on DSK5VPTVN1PROD with BILLS
19 

•S 1094 IS

1 ‘‘(3) The term ‘senior executive position’ 

2 means— 

3 ‘‘(A) with respect to a career appointee (as 

4 that term is defined in section 3132(a) of title 

5 5), a Senior Executive Service position (as such 

6 term is defined in such section); and 

7 ‘‘(B) with respect to a covered individual 

8 appointed under section 7306(a) or section 

9 7401(1) of this title, an administrative or exec10 utive position.’’. 

11 (b) CONFORMING AMENDMENT.—Section 7461(c)(1) 

12 of such title is amended by inserting ‘‘employees in senior 

13 executive positions (as defined in section 713(d) of this 

14 title) and’’ before ‘‘interns’’. 

15 (c) CLERICAL AMENDMENT.—The table of sections 

16 at the beginning of chapter 7 of such title is amended by 

17 striking the item relating to section 713 and inserting the 

18 following new item: 

‘‘713. Senior executives: removal, demotion, or suspension based on performance 

or misconduct.’’. 

19 SEC. 202. IMPROVED AUTHORITIES OF SECRETARY OF VET20 ERANS AFFAIRS TO IMPROVE ACCOUNT21 ABILITY OF EMPLOYEES. 

22 (a) IN GENERAL.—Subchapter I of chapter 7 of title 

23 38, United States Code, is amended by inserting after sec24 tion 713 the following new section: 


lotter on DSK5VPTVN1PROD with BILLS
20 

•S 1094 IS

1 ‘‘§ 714. Employees: removal, demotion, or suspension 

2 based on performance or misconduct 

3 ‘‘(a) IN GENERAL.—(1) The Secretary may remove, 

4 demote, or suspend a covered individual who is an em5 ployee of the Department if the Secretary determines the 

6 performance or misconduct of the covered individual war7 rants such removal, demotion, or suspension. 

8 ‘‘(2) If the Secretary so removes, demotes, or sus9 pends such a covered individual, the Secretary may— 

10 ‘‘(A) remove the covered individual from the 

11 civil service (as defined in section 2101 of title 5); 

12 ‘‘(B) demote the covered individual by means of 

13 a reduction in grade for which the covered individual 

14 is qualified, that the Secretary determines is appro15 priate, and that reduces the annual rate of pay of 

16 the covered individual; or 

17 ‘‘(C) suspend the covered individual. 

18 ‘‘(b) PAY OF CERTAIN DEMOTED INDIVIDUALS.—(1) 

19 Notwithstanding any other provision of law, any covered 

20 individual subject to a demotion under subsection (a)(2) 

21 shall, beginning on the date of such demotion, receive the 

22 annual rate of pay applicable to such grade. 

23 ‘‘(2)(A) A covered individual so demoted may not be 

24 placed on administrative leave during the period during 

25 which an appeal (if any) under this section is ongoing, 

26 and may only receive pay if the covered individual reports 


lotter on DSK5VPTVN1PROD with BILLS
21 

•S 1094 IS

1 for duty or is approved to use accrued unused annual, 

2 sick, family medical, military, or court leave. 

3 ‘‘(B) If a covered individual so demoted does not re4 port for duty or receive approval to use accrued unused 

5 leave, such covered individual shall not receive pay or 

6 other benefits pursuant to subsection (d)(5). 

7 ‘‘(c) PROCEDURE.—(1)(A) The aggregate period for 

8 notice, response, and final decision in a removal, demotion, 

9 or suspension under this section may not exceed 15 busi10 ness days. 

11 ‘‘(B) The period for the response of a covered indi12 vidual to a notice of a proposed removal, demotion, or sus13 pension under this section shall be 7 business days. 

14 ‘‘(C) Paragraph (3) of subsection (b) of section 7513 

15 of title 5 shall apply with respect to a removal, demotion, 

16 or suspension under this section. 

17 ‘‘(D) The procedures in this subsection shall super18 sede any collective bargaining agreement to the extent that 

19 such agreement is inconsistent with such procedures. 

20 ‘‘(2) The Secretary shall issue a final decision with 

21 respect to a removal, demotion, or suspension under this 

22 section not later than 15 business days after the Secretary 

23 provides notice, including a file containing all the evidence 

24 in support of the proposed action, to the covered individual 

25 of the removal, demotion, or suspension. The decision shall 


lotter on DSK5VPTVN1PROD with BILLS
22 

•S 1094 IS

1 be in writing and shall include the specific reasons there2 for. 

3 ‘‘(3) The procedures under chapter 43 of title 5 shall 

4 not apply to a removal, demotion, or suspension under this 

5 section. 

6 ‘‘(4)(A) Subject to subparagraph (B) and subsection 

7 (d), any removal or demotion under this section, and any 

8 suspension of more than 14 days under this section, may 

9 be appealed to the Merit Systems Protection Board, which 

10 shall refer such appeal to an administrative judge pursu11 ant to section 7701(b)(1) of title 5. 

12 ‘‘(B) An appeal under subparagraph (A) of a re13 moval, demotion, or suspension may only be made if such 

14 appeal is made not later than 10 business days after the 

15 date of such removal, demotion, or suspension. 

16 ‘‘(d) EXPEDITED REVIEW.—(1) Upon receipt of an 

17 appeal under subsection (c)(4)(A), the administrative 

18 judge shall expedite any such appeal under section 

19 7701(b)(1) of title 5 and, in any such case, shall issue 

20 a final and complete decision not later than 180 days after 

21 the date of the appeal. 

22 ‘‘(2)(A) Notwithstanding section 7701(c)(1)(B) of 

23 title 5, the administrative judge shall uphold the decision 

24 of the Secretary to remove, demote, or suspend an emVerDate Sep 11 2014 02:25 May 13, 2017 Jkt 069200 PO 00000 Frm 00022 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.IS S1094

lotter on DSK5VPTVN1PROD with BILLS
23 

•S 1094 IS

1 ployee under subsection (a) if the decision is supported 

2 by substantial evidence. 

3 ‘‘(B) If the decision of the Secretary is supported by 

4 substantial evidence, the administrative judge shall not 

5 mitigate the penalty prescribed by the Secretary. 

6 ‘‘(3) The decision of the administrative judge under 

7 paragraph (1) may be appealed to the Merit Systems Pro8 tection Board. 

9 ‘‘(4) In any case in which the administrative judge 

10 cannot issue a decision in accordance with the 180-day 

11 requirement under paragraph (1), the Merit Systems Pro12 tection Board shall, not later than 14 business days after 

13 the expiration of the 180-day period, submit to the Com14 mittee on Veterans’ Affairs of the Senate and the Com15 mittee on Veterans’ Affairs of the House of Representa16 tives a report that explains the reasons why a decision was 

17 not issued in accordance with such requirement. 

18 ‘‘(5)(A) A decision of the Merit Systems Protection 

19 Board under paragraph (3) may be appealed to the United 

20 States Court of Appeals for the Federal Circuit pursuant 

21 to section 7703 of title 5. 

22 ‘‘(B) Any decision by such Court shall be in compli23 ance with section 7462(f)(2) of this title. 


lotter on DSK5VPTVN1PROD with BILLS
24 

•S 1094 IS

1 ‘‘(6) The Merit Systems Protection Board may not 

2 stay any removal or demotion under this section, except 

3 as provided in section 1214(b) of title 5. 

4 ‘‘(7) During the period beginning on the date on 

5 which a covered individual appeals a removal from the civil 

6 service under subsection (c) and ending on the date that 

7 the United States Court of Appeals for the Federal Circuit 

8 issues a final decision on such appeal, such covered indi9 vidual may not receive any pay, awards, bonuses, incen10 tives, allowances, differentials, student loan repayments, 

11 special payments, or benefits related to the employment 

12 of the individual by the Department. 

13 ‘‘(8) To the maximum extent practicable, the Sec14 retary shall provide to the Merit Systems Protection 

15 Board such information and assistance as may be nec16 essary to ensure an appeal under this subsection is expe17 dited. 

18 ‘‘(9) If an employee prevails on appeal under this sec19 tion, the employee shall be entitled to backpay (as pro20 vided in section 5596 of title 5). 

21 ‘‘(10) If an employee who is subject to a collective 

22 bargaining agreement chooses to grieve an action taken 

23 under this section through a grievance procedure provided 

24 under the collective bargaining agreement, the timelines 


lotter on DSK5VPTVN1PROD with BILLS
25 

•S 1094 IS

1 and procedures set forth in subsection (c) and this sub2 section shall apply. 

3 ‘‘(e) WHISTLEBLOWER PROTECTION.—(1) In the 

4 case of a covered individual seeking corrective action (or 

5 on behalf of whom corrective action is sought) from the 

6 Office of Special Counsel based on an alleged prohibited 

7 personnel practice described in section 2302(b) of title 5, 

8 the Secretary may not remove, demote, or suspend such 

9 covered individual under subsection (a) without the ap10 proval of the Special Counsel under section 1214(f) of title 

11 5. 

12 ‘‘(2) In the case of a covered individual who has made 

13 a whistleblower disclosure to the Assistant Secretary for 

14 Accountability and Whistleblower Protection, the Sec15 retary may not remove, demote, or suspend such covered 

16 individual under subsection (a) until— 

17 ‘‘(A) in the case in which the Assistant Sec18 retary determines to refer the whistleblower disclo19 sure under section 323(c)(1)(D) of this title to an 

20 office or other investigative entity, a final decision 

21 with respect to the whistleblower disclosure has been 

22 made by such office or other investigative entity; or 

23 ‘‘(B) in the case in which the Assistant Sec24 retary determines not to the refer the whistleblower 


lotter on DSK5VPTVN1PROD with BILLS
26 

•S 1094 IS

1 disclosure under such section, the Assistant Sec2 retary makes such determination. 

3 ‘‘(f) TERMINATION OF INVESTIGATIONS BY OFFICE

4 OF SPECIAL COUNSEL.—(1) Notwithstanding any other 

5 provision of law, the Special Counsel (established by sec6 tion 1211 of title 5) may terminate an investigation of 

7 a prohibited personnel practice alleged by an employee or 

8 former employee of the Department after the Special 

9 Counsel provides to the employee or former employee a 

10 written statement of the reasons for the termination of 

11 the investigation. 

12 ‘‘(2) Such statement may not be admissible as evi13 dence in any judicial or administrative proceeding without 

14 the consent of such employee or former employee. 

15 ‘‘(g) VACANCIES.—In the case of a covered individual 

16 who is removed or demoted under subsection (a), to the 

17 maximum extent feasible, the Secretary shall fill the va18 cancy arising as a result of such removal or demotion. 

19 ‘‘(h) DEFINITIONS.—In this section: 

20 ‘‘(1) The term ‘covered individual’ means an in21 dividual occupying a position at the Department, but 

22 does not include— 

23 ‘‘(A) an individual occupying a senior exec24 utive position (as defined in section 713(d) of 

25 this title); 


lotter on DSK5VPTVN1PROD with BILLS
27 

•S 1094 IS

1 ‘‘(B) an individual appointed pursuant to 

2 sections 7306, 7401(1), or 7405 of this title; 

3 ‘‘(C) an individual who has not completed 

4 a probationary or trial period; or 

5 ‘‘(D) a political appointee. 

6 ‘‘(2) The term ‘suspend’ means the placing of 

7 an employee, for disciplinary reasons, in a temporary 

8 status without duties and pay for a period in excess 

9 of 14 days. 

10 ‘‘(3) The term ‘grade’ has the meaning given 

11 such term in section 7511(a) of title 5. 

12 ‘‘(4) The term ‘misconduct’ includes neglect of 

13 duty, malfeasance, or failure to accept a directed re14 assignment or to accompany a position in a transfer 

15 of function. 

16 ‘‘(5) The term ‘political appointee’ means an in17 dividual who is— 

18 ‘‘(A) employed in a position described 

19 under sections 5312 through 5316 of title 5 

20 (relating to the Executive Schedule); 

21 ‘‘(B) a limited term appointee, limited 

22 emergency appointee, or noncareer appointee in 

23 the Senior Executive Service, as defined under 

24 paragraphs (5), (6), and (7), respectively, of 

25 section 3132(a) of title 5; or 


lotter on DSK5VPTVN1PROD with BILLS
28 

•S 1094 IS

1 ‘‘(C) employed in a position of a confiden2 tial or policy-determining character under 

3 schedule C of subpart C of part 213 of title 5, 

4 Code of Federal Regulations, or successor regu5 lation. 

6 ‘‘(6) The term ‘whistleblower disclosure’ has the 

7 meaning given such term in section 323(g) of this 

8 title.’’. 

9 (b) CLERICAL AND CONFORMING AMENDMENTS.— 

10 (1) CLERICAL.—The table of sections at the be11 ginning of chapter 7 of such title is amended by in12 serting after the item relating to section 713 the fol13 lowing new item: 

‘‘714. Employees: removal, demotion, or suspension based on performance or 

misconduct.’’. 

14 (2) CONFORMING.—Section 4303(f) of title 5, 

15 United States Code, is amended— 

16 (A) in paragraph (2), by striking ‘‘or’’ at 

17 the end; 

18 (B) in paragraph (3), by striking the pe19 riod at the end and inserting ‘‘, or’’; and 

20 (C) by adding at the end the following: 

21 ‘‘(4) any removal or demotion under section 

22 714 of title 38.’’. 


lotter on DSK5VPTVN1PROD with BILLS
29 

•S 1094 IS

1 SEC. 203. REDUCTION OF BENEFITS FOR DEPARTMENT OF 

2 VETERANS AFFAIRS EMPLOYEES CONVICTED 

3 OF CERTAIN CRIMES. 

4 (a) REDUCTION OF BENEFITS.— 

5 (1) IN GENERAL.—Subchapter I of chapter 7 of 

6 title 38, United States Code, is amended by adding 

7 at the end the following new section: 

8 ‘‘§ 719. Reduction of benefits of employees convicted 

9 of certain crimes 

10 ‘‘(a) REDUCTION OF ANNUITY FOR REMOVED EM11 PLOYEE.—(1) The Secretary shall order that the covered 

12 service of an employee of the Department removed from 

13 a position for performance or misconduct under section 

14 719 or 7461 of this title or any other provision of law 

15 shall not be taken into account for purposes of calculating 

16 an annuity with respect to such individual under chapter 

17 83 or chapter 84 of title 5, if— 

18 ‘‘(A) the Secretary determines that the indi19 vidual is convicted of a felony (and the conviction is 

20 final) that influenced the individual’s performance 

21 while employed in the position; and 

22 ‘‘(B) before such order is made, the individual 

23 is afforded— 

24 ‘‘(i) notice of the proposed order; and 


lotter on DSK5VPTVN1PROD with BILLS
30 

•S 1094 IS

1 ‘‘(ii) an opportunity to respond to the pro2 posed order by not later than ten business days 

3 following receipt of such notice; and 

4 ‘‘(C) the Secretary issues the order— 

5 ‘‘(i) in the case of a proposed order to 

6 which an individual responds under subpara7 graph (B)(ii), not later than five business days 

8 after receiving the response of the individual; or 

9 ‘‘(ii) in the case of a proposed order to 

10 which an individual does not respond, not later 

11 than 15 business days after the Secretary pro12 vides notice to the individual under subpara13 graph (B)(i). 

14 ‘‘(2) Any individual with respect to whom an annuity 

15 is reduced under this subsection may appeal the reduction 

16 to the Director of the Office of Personnel Management 

17 pursuant to such regulations as the Director may pre18 scribe for purposes of this subsection. 

19 ‘‘(b) REDUCTION OF ANNUITY FOR RETIRED EM20 PLOYEE.—(1) The Secretary may order that the covered 

21 service of an individual who is removed for performance 

22 or misconduct under section 719 or 7461 of this title or 

23 any other provision of law but who leaves employment at 

24 the Department prior to the issuance of a final decision 

25 with respect to such action shall not be taken into account 


lotter on DSK5VPTVN1PROD with BILLS
31 

•S 1094 IS

1 for purposes of calculating an annuity with respect to such 

2 individual under chapter 83 or chapter 84 of title 5, if— 

3 ‘‘(A) the Secretary determines that individual is 

4 convicted of a felony (and the conviction is final) 

5 that influenced the individual’s performance while 

6 employed in the position; and 

7 ‘‘(B) before such order is made, the individual 

8 is afforded— 

9 ‘‘(i) notice of the proposed order; 

10 ‘‘(ii) opportunity to respond to the pro11 posed order by not later than ten business days 

12 following receipt of such notice; and 

13 ‘‘(C) the Secretary issues the order— 

14 ‘‘(i) in the case of a proposed order to 

15 which an individual responds under subpara16 graph (B)(ii), not later than five business days 

17 after receiving the response of the individual; or 

18 ‘‘(ii) in the case of a proposed order to 

19 which an individual does not respond, not later 

20 than 15 business days after the Secretary pro21 vides notice to the individual under subpara22 graph (B)(i). 

23 ‘‘(2) Upon the issuance of an order by the Secretary 

24 under paragraph (1), the individual shall have an oppor25 tunity to appeal the order to the Director of the Office 


lotter on DSK5VPTVN1PROD with BILLS
32 

•S 1094 IS

1 of Personnel Management before the date that is seven 

2 business days after the date of such issuance. 

3 ‘‘(3) The Director of the Office of Personnel Manage4 ment shall make a final decision with respect to an appeal 

5 under paragraph (2) within 30 business days of receiving 

6 the appeal. 

7 ‘‘(c) ADMINISTRATIVE REQUIREMENTS.—Not later 

8 than 37 business days after the Secretary issues a final 

9 order under subsection (a) or (b) with respect to an indi10 vidual, the Director of the Office of Personnel Manage11 ment shall recalculate the annuity of the individual. 

12 ‘‘(d) LUMP-SUM ANNUITY CREDIT.—Any individual 

13 with respect to whom an annuity is reduced under sub14 section (a) or (b) shall be entitled to be paid so much of 

15 such individual’s lump-sum credit as is attributable to the 

16 period of covered service. 

17 ‘‘(e) SPOUSE OR CHILDREN EXCEPTION.—(1) The 

18 Secretary, in consultation with the Director of the Office 

19 of Personnel Management, shall prescribe regulations that 

20 may provide for the payment to the spouse or children 

21 of any individual referred to in subsection (a) or (b) of 

22 any amounts which (but for this subsection) would other23 wise have been nonpayable by reason of such subsections. 


lotter on DSK5VPTVN1PROD with BILLS
33 

•S 1094 IS

1 ‘‘(2) Regulations prescribed under paragraph (1) 

2 shall be consistent with the requirements of section 

3 8332(o)(5) and 8411(l)(5) of title 5, as the case may be. 

4 ‘‘(f) DEFINITIONS.—In this section: 

5 ‘‘(1) The term ‘covered service’ means, with re6 spect to an individual subject to a removal for per7 formance or misconduct under section 719 or 7461 

8 of this title or any other provision of law, the period 

9 of service beginning on the date that the Secretary 

10 determines under such applicable provision that the 

11 individual engaged in activity that gave rise to such 

12 action and ending on the date that the individual is 

13 removed from or leaves a position of employment at 

14 the Department prior to the issuance of a final deci15 sion with respect to such action. 

16 ‘‘(2) The term ‘lump-sum credit’ has the mean17 ing given such term in section 8331(8) or section 

18 8401(19) of title 5, as the case may be. 

19 ‘‘(3) The term ‘service’ has the meaning given 

20 such term in section 8331(12) or section 8401(26) 

21 of title 5, as the case may be.’’. 

22 (2) CLERICAL AMENDMENT.—The table of sec23 tions at the beginning of chapter 7 of such title is 

24 amended by inserting after the item relating to sec25 tion 717 the following new item: 

‘‘719. Reduction of benefits of employees convicted of certain crimes.’’. 


lotter on DSK5VPTVN1PROD with BILLS
34 

•S 1094 IS

1 (b) APPLICATION.—Section 719 of title 38, United 

2 States Code, as added by subsection (a)(1), shall apply 

3 to any action of removal of an employee of the Department 

4 of Veterans Affairs under section 719 or 7461 of such title 

5 or any other provision of law, commencing on or after the 

6 date of the enactment of this Act. 

7 SEC. 204. AUTHORITY TO RECOUP BONUSES OR AWARDS 

8 PAID TO EMPLOYEES OF DEPARTMENT OF 

9 VETERANS AFFAIRS. 

10 (a) IN GENERAL.—Subchapter I of chapter 7 of title 

11 38, United States Code, as amended by section 203, is 

12 further amended by adding at the end the following new 

13 section: 

14 ‘‘§ 721. Recoupment of bonuses or awards paid to em15 ployees of Department 

16 ‘‘(a) IN GENERAL.—Notwithstanding any other pro17 vision of law, the Secretary may issue an order directing 

18 an employee of the Department to repay the amount, or 

19 a portion of the amount, of any award or bonus paid to 

20 the employee under title 5, including under chapters 45 

21 or 53 of such title, or this title if— 

22 ‘‘(1) the Secretary determines that the indi23 vidual engaged in misconduct or poor performance 

24 prior to payment of the award or bonus, and that 

25 such award or bonus would not have been paid, in 


lotter on DSK5VPTVN1PROD with BILLS
35 

•S 1094 IS

1 whole or in part, had the misconduct or poor per2 formance been known prior to payment; and 

3 ‘‘(2) before such repayment, the employee is af4 forded— 

5 ‘‘(A) notice of the proposed order; and 

6 ‘‘(B) an opportunity to respond to the pro7 posed order by not later than 10 business days 

8 after the receipt of such notice; and 

9 ‘‘(3) the Secretary issues the order— 

10 ‘‘(A) in the case of a proposed order to 

11 which an individual responds under paragraph 

12 (2)(B), not later than five business days after 

13 receiving the response of the individual; or 

14 ‘‘(B) in the case of a proposed order to 

15 which an individual does not respond, not later 

16 than 15 business days after the Secretary pro17 vides notice to the individual under paragraph 

18 (2)(A). 

19 ‘‘(b) APPEAL OF ORDER OF SECRETARY.—(1) Upon 

20 the issuance of an order by the Secretary under subsection 

21 (a) with respect to an individual, the individual shall have 

22 an opportunity to appeal the order to the Director of the 

23 Office of Personnel Management before the date that is 

24 seven business days after the date of such issuance. 


lotter on DSK5VPTVN1PROD with BILLS
36 

•S 1094 IS

1 ‘‘(2) The Director shall make a final decision with 

2 respect to an appeal under paragraph (1) within 30 busi3 ness days after receiving such appeal. 

4 ‘‘(c) APPEAL OF FINAL DECISION ON APPEAL OF

5 ORDER.—An individual may appeal a final decision on an 

6 appeal under subsection (b) to the Merit Systems Protec7 tion Board under section 7701 of title 5.’’. 

8 (b) CLERICAL AMENDMENT.—The table of sections 

9 at the beginning of such chapter, as amended by section 

10 203(a)(2), is further amended by inserting after the item 

11 relating to section 719 the following new item: 

‘‘721. Recoupment of bonuses or awards paid to employees of Department.’’. 

12 (c) EFFECTIVE DATE.—Section 721 of title 38, 

13 United States Code, as added by subsection (a), shall 

14 apply with respect to an award or bonus paid by the Sec15 retary of Veterans Affairs to an employee of the Depart16 ment of Veterans Affairs on or after the date of the enact17 ment of this Act. 

18 (d) CONSTRUCTION.—Nothing in this Act or the 

19 amendments made by this Act may be construed to modify 

20 the certification issued by the Office of Personnel Manage21 ment and the Office of Management and Budget regarding 

22 the performance appraisal system of the Senior Executive 

23 Service of the Department of Veterans Affairs. 


lotter on DSK5VPTVN1PROD with BILLS
37 

•S 1094 IS

1 SEC. 205. AUTHORITY TO RECOUP RELOCATION EXPENSES 

2 PAID TO OR ON BEHALF OF EMPLOYEES OF 

3 DEPARTMENT OF VETERANS AFFAIRS. 

4 (a) IN GENERAL.—Subchapter I of chapter 7 of title 

5 38, United States Code, as amended by section 204, is 

6 further amended by adding at the end the following new 

7 section: 

8 ‘‘§ 723. Recoupment of relocation expenses paid on 

9 behalf of employees of Department 

10 ‘‘(a) IN GENERAL.—Notwithstanding any other pro11 vision of law, the Secretary may issue an order directing 

12 an employee of the Department to repay the amount, or 

13 a portion of the amount, paid to or on behalf of the em14 ployee under title 5 for relocation expenses, including any 

15 expenses under section 5724 or 5724a of such title, or 

16 this title if— 

17 ‘‘(1) the Secretary determines that relocation 

18 expenses were paid following an act of fraud or mal19 feasance that influenced the authorization of the re20 location expenses; 

21 ‘‘(2) before such repayment, the employee is af22 forded— 

23 ‘‘(A) notice of the proposed order; and 

24 ‘‘(B) an opportunity to respond to the pro25 posed order not later than ten business days 

26 following the receipt of such notice; and 


lotter on DSK5VPTVN1PROD with BILLS
38 

•S 1094 IS

1 ‘‘(3) the Secretary issues the order— 

2 ‘‘(A) in the case of a proposed order to 

3 which an individual responds under paragraph 

4 (2)(B), not later than five business days after 

5 receiving the response of the individual; or 

6 ‘‘(B) in the case of a proposed order to 

7 which an individual does not respond, not later 

8 than 15 business days after the Secretary pro9 vides notice to the individual under paragraph 

10 (2)(A). 

11 ‘‘(b) APPEAL OF ORDER OF SECRETARY.—(1) Upon 

12 the issuance of an order by the Secretary under subsection 

13 (a) with respect to an individual, the individual shall have 

14 an opportunity to appeal the order to the Director of the 

15 Office of Personnel Management before the date that is 

16 seven business days after the date of such issuance. 

17 ‘‘(2) The Director shall make a final decision with 

18 respect to an appeal under paragraph (1) within 30 days 

19 after receiving such appeal. 

20 ‘‘(c) APPEAL OF FINAL DECISION ON APPEAL OF

21 ORDER.—An individual may appeal a final decision on an 

22 appeal under subsection (b) to the Merit Systems Protec23 tion Board under section 7701 of title 5.’’. 

24 (b) CLERICAL AMENDMENT.—The table of sections 

25 at the beginning of such chapter is further amended by 


lotter on DSK5VPTVN1PROD with BILLS
39 

•S 1094 IS

1 inserting after the item relating to section 721, as added 

2 by section 204(b), the following new item: 

‘‘723. Recoupment of relocation expenses paid on behalf of employees of Department.’’. 

3 (c) EFFECTIVE DATE.—Section 723 of title 38, 

4 United States Code, as added by subsection (a), shall 

5 apply with respect to an amount paid by the Secretary 

6 of Veterans Affairs to or on behalf of an employee of the 

7 Department of Veterans Affairs for relocation expenses on 

8 or after the date of the enactment of this Act. 

9 SEC. 206. TIME PERIOD FOR RESPONSE TO NOTICE OF AD10 VERSE ACTIONS AGAINST SUPERVISORY EM11 PLOYEES WHO COMMIT PROHIBITED PER12 SONNEL ACTIONS. 

13 Section 731(a)(2)(B) of title 38, United States Code, 

14 as redesignated by section 102(a)(2), is amended— 

15 (1) in clause (i), by striking ‘‘14 days’’ and in16 serting ‘‘10 days’’; and 

17 (2) in clause (ii), by striking ‘‘14-day period’’ 

18 and inserting ‘‘10-day period’’. 

19 SEC. 207. DIRECT HIRING AUTHORITY FOR MEDICAL CEN20 TER DIRECTORS AND VISN DIRECTORS. 

21 (a) IN GENERAL.—Section 7401 of title 38, United 

22 States Code, is amended by adding at the end the fol23 lowing new paragraph: 


lotter on DSK5VPTVN1PROD with BILLS
40 

•S 1094 IS

1 ‘‘(4) Directors of medical centers and directors 

2 of Veterans Integrated Service Networks with dem3 onstrated ability in the medical profession, in health 

4 care administration, or in health care fiscal manage5 ment.’’. 

6 (b) CONFORMING AMENDMENT.—Section 7404(a)(1) 

7 of such title is amended by inserting ‘‘and 7401(4)’’ after 

8 ‘‘7306’’. 

9 SEC. 208. TIME PERIODS FOR REVIEW OF ADVERSE AC10 TIONS WITH RESPECT TO CERTAIN EMPLOY11 EES. 

12 (a) PHYSICIANS, DENTISTS, PODIATRISTS, CHIRO13 PRACTORS, OPTOMETRISTS, REGISTERED NURSES, PHY14 SICIAN ASSISTANTS, AND EXPANDED-FUNCTION DENTAL

15 AUXILIARIES.—Paragraph (2) of section 7461(b) of title 

16 38, United States Code, is amended to read as follows: 

17 ‘‘(2) In any case other than a case described in para18 graph (1) that involves or includes a question of profes19 sional conduct or competence in which a major adverse 

20 action was not taken, such an appeal shall be made 

21 through Department grievance procedures under section 

22 7463 of this title.’’. 

23 (b) MAJOR ADVERSE ACTIONS INVOLVING PROFES24 SIONAL CONDUCT OR COMPETENCE.—Section 7462(b) of 

25 such title is amended— 


lotter on DSK5VPTVN1PROD with BILLS
41 

•S 1094 IS

1 (1) in paragraph (1)— 

2 (A) in the matter preceding subparagraph 

3 (A), by inserting ‘‘, within the aggregate time 

4 period specified in paragraph (5)(A),’’ after ‘‘is 

5 entitled’’; 

6 (B) in subparagraph (A)— 

7 (i) by striking ‘‘At least 30 days ad8 vance written notice’’ and inserting ‘‘Ad9 vance written notice’’; 

10 (ii) by striking ‘‘and a statement’’ and 

11 inserting ‘‘a statement’’; and 

12 (iii) by inserting ‘‘and a file con13 taining all the evidence in support of each 

14 charge,’’ after ‘‘with respect to each 

15 charge,’’; and 

16 (C) in subparagraph (B), by striking ‘‘A 

17 reasonable time, but not less than seven days’’ 

18 and inserting ‘‘The opportunity, within the time 

19 period provided for in paragraph (4)(A)’’; 

20 (2) by striking paragraph (3) and inserting the 

21 following new paragraph (3): 

22 ‘‘(3) After considering the employee’s answer, if any, 

23 and within the time period provided for in paragraph 

24 (5)(B), the deciding official shall render a decision on the 


lotter on DSK5VPTVN1PROD with BILLS
42 

•S 1094 IS

1 charges. The decision shall be in writing and shall include 

2 the specific reasons therefor.’’; 

3 (3) in paragraph (4)— 

4 (A) by striking subparagraph (A) and in5 serting the following new subparagraph (A): 

6 ‘‘(A) The period for the response of an employee 

7 under paragraph (1)(B) to advance written under para8 graph (1)(A) shall be seven business days.’’; and 

9 (B) in subparagraph (B), by striking ‘‘30 

10 days’’ and inserting ‘‘seven business days’’; and 

11 (4) by adding at the end the following new 

12 paragraphs: 

13 ‘‘(5)(A) The aggregate period for the resolution of 

14 charges against an employee under this subsection may 

15 not exceed 15 business days. 

16 ‘‘(B) The deciding official shall render a decision 

17 under paragraph (3) on charges under this subsection not 

18 later than 15 business days after the Under Secretary pro19 vides notice on the charges for purposes of paragraph 

20 (1)(A). 

21 ‘‘(6) The procedures in this subsection shall super22 sede any collective bargaining agreement to the extent that 

23 such agreement is inconsistent with such procedures.’’. 

24 (c) OTHER ADVERSE ACTIONS.—Section 7463(c) of 

25 such title is amended— 


lotter on DSK5VPTVN1PROD with BILLS
43 

•S 1094 IS

1 (1) in paragraph (1), by striking ‘‘the same no2 tice and opportunity to answer with respect to those 

3 charges as provided in subparagraphs (A) and (B) 

4 of section 7462(b)(1) of this title’’ and inserting 

5 ‘‘notice and an opportunity to answer with respect to 

6 those charges in accordance with subparagraphs (A) 

7 and (B) of section 7462(b)(1) of this title, but with8 in the time periods specified in paragraph (3)’’; 

9 (2) in paragraph (2)— 

10 (A) in the matter preceding subparagraph 

11 (A), by inserting ‘‘, within the aggregate time 

12 period specified in paragraph (3)(A),’’ after ‘‘is 

13 entitled’’; 

14 (B) in subparagraph (A), by striking ‘‘an 

15 advance written notice’’ and inserting ‘‘written 

16 notice’’; and 

17 (C) in subparagraph (B), by striking ‘‘a 

18 reasonable time’’ and inserting ‘‘time to an19 swer’’; and 

20 (3) by adding at the end the following new 

21 paragraph (3): 

22 ‘‘(3)(A) The aggregate period for the resolution of 

23 charges against an employee under paragraph (1) or (2) 

24 may not exceed 15 business days. 


lotter on DSK5VPTVN1PROD with BILLS
44 

•S 1094 IS

1 ‘‘(B) The period for the response of an employee 

2 under paragraph (1) or (2)(B) to written notice of charges 

3 under paragraph (1) or (2)(A), as applicable, shall be 

4 seven business days. 

5 ‘‘(C) The deciding official shall render a decision on 

6 charges under paragraph (1) or (2) not later than 15 busi7 ness days after notice is provided on the charges for pur8 poses of paragraph (1) or (2)(A), as applicable.’’. 

9 SEC. 209. IMPROVEMENT OF TRAINING FOR SUPERVISORS. 

10 (a) IN GENERAL.—The Secretary of Veterans Affairs 

11 shall provide to each employee of the Department of Vet12 erans Affairs who is employed as a supervisor periodic 

13 training on the following: 

14 (1) The rights of whistleblowers and how to ad15 dress a report by an employee of a hostile work envi16 ronment, reprisal, or harassment. 

17 (2) How to effectively motivate, manage, and 

18 reward the employees who report to the supervisor. 

19 (3) How to effectively manage employees who 

20 are performing at an unacceptable level and access 

21 assistance from the human resources office of the 

22 Department and the Office of the General Counsel 

23 of the Department with respect to those employees. 

24 (b) DEFINITIONS.—In this section: 


lotter on DSK5VPTVN1PROD with BILLS
45 

•S 1094 IS

1 (1) SUPERVISOR.—The term ‘‘supervisor’’ has 

2 the meaning given such term in section 7103(a) of 

3 title 5, United States Code. 

4 (2) WHISTLEBLOWER.—The term ‘‘whistle5 blower’’ has the meaning given such term in section 

6 323(g) of title 38, United States Code, as added by 

7 section 101. 

8 SEC. 210. ASSESSMENT AND REPORT ON EFFECT ON SEN9 IOR EXECUTIVES AT DEPARTMENT OF VET10 ERANS AFFAIRS. 

11 (a) IN GENERAL.—Not later than two years after the 

12 date of the enactment of this Act, the Secretary of Vet13 erans Affairs shall— 

14 (1) measure and assess the effect of the enact15 ment of this title on the morale, engagement, hiring, 

16 promotion, retention, discipline, and productivity of 

17 individuals in senior executive positions at the De18 partment of Veterans Affairs; and 

19 (2) submit to the Committee on Veterans’ Af20 fairs of the Senate and the Committee on Veterans’ 

21 Affairs of the House of Representatives a report on 

22 the findings of the Secretary with respect to the 

23 measurement and assessment carried out under 

24 paragraph (1). 


lotter on DSK5VPTVN1PROD with BILLS
46 

•S 1094 IS

1 (b) ELEMENTS.—The assessment required by sub2 section (a)(1) shall include the following: 

3 (1) With respect to engagement, trends in mo4 rale of individuals in senior executive positions and 

5 individuals aspiring to senior executive positions. 

6 (2) With respect to promotions— 

7 (A) whether the Department is experi8 encing an increase or decrease in the number of 

9 employees participating in leadership develop10 ment and candidate development programs with 

11 the intention of becoming candidates for senior 

12 executive positions; and 

13 (B) trends in applications to senior execu14 tive positions within the Department. 

15 (3) With respect to retention— 

16 (A) trends in retirement rates of individ17 uals in senior executive positions at the Depart18 ment; 

19 (B) trends in quit rates of individuals in 

20 senior executive positions at the Department; 

21 (C) rates of transfer of— 

22 (i) individuals from other Federal 

23 agencies into senior executive positions at 

24 the Department; and 


lotter on DSK5VPTVN1PROD with BILLS
47 

•S 1094 IS

1 (ii) individuals from senior executive 

2 positions at the Department to other Fed3 eral agencies; and 

4 (D) trends in total loss rates by job func5 tion. 

6 (4) With respect to disciplinary processes— 

7 (A) regarding individuals in senior execu8 tive positions at the Department who are the 

9 subject of disciplinary action— 

10 (i) the length of the disciplinary proc11 ess in days for such individuals both before 

12 the date of the enactment of this Act and 

13 under the provisions of this Act described 

14 in subsection (a)(1); and 

15 (ii) the extent to which appeals by 

16 such individuals are upheld under such 

17 provisions as compared to before the date 

18 of the enactment of this Act; 

19 (B) the components or offices of the De20 partment which experience the greatest number 

21 of proposed adverse actions against individuals 

22 in senior executive positions and components 

23 and offices which experience the least relative to 

24 the size of the components or offices’ total 

25 number of senior executive positions; 


lotter on DSK5VPTVN1PROD with BILLS
48 

•S 1094 IS

1 (C) the tenure of individuals in senior ex2 ecutive positions who are the subject of discipli3 nary action; 

4 (D) whether the individuals in senior exec5 utive positions who are the subject of discipli6 nary action have previously been disciplined; 

7 and 

8 (E) the number of instances of disciplinary 

9 action taken by the Secretary against individ10 uals in senior executive positions at the Depart11 ment as compared to governmentwide discipline 

12 against individuals in Senior Executive Service 

13 positions (as defined in section 3132(a) of title 

14 5, United States Code) as a percentage of the 

15 total number of individuals in senior executive 

16 positions at the Department and Senior Execu17 tive Service positions (as so defined). 

18 (5) With respect to hiring— 

19 (A) the degree to which the skills of newly 

20 hired individuals in senior executive positions at 

21 the Department are appropriate with respect to 

22 the needs of the Department; 

23 (B) the types of senior executive positions 

24 at the Department most commonly filled under 


lotter on DSK5VPTVN1PROD with BILLS
49 

•S 1094 IS

1 the authorities in the provisions described in 

2 subsection (a)(1); 

3 (C) the number of senior executive posi4 tions at the Department filled by hires outside 

5 of the Department compared to hires from 

6 within the Department; 

7 (D) the length of time to fill a senior exec8 utive position at the Department and for a new 

9 hire to begin working in a new senior executive 

10 position; 

11 (E) the mission-critical deficiencies filled 

12 by newly hired individuals in senior executive 

13 positions and the connection between mission14 critical deficiencies filled under the provisions 

15 described in subsection (a) and annual perform16 ance of the Department; 

17 (F) the satisfaction of applicants for senior 

18 executive positions at the Department with the 

19 hiring process, including the clarity of job an20 nouncements, reasons for withdrawal of applica21 tions, communication regarding status of appli22 cations, and timeliness of hiring decision; and 

23 (G) the satisfaction of newly hired individ24 uals in senior executive positions at the Depart25 ment with the hiring process and the process of 


lotter on DSK5VPTVN1PROD with BILLS
50 

•S 1094 IS

1 joining and becoming oriented with the Depart2 ment. 

3 (c) SENIOR EXECUTIVE POSITION DEFINED.—In 

4 this section, the term ‘‘senior executive position’’ has the 

5 meaning given such term in section 713 of title 38, United 

6 States Code. 

7 SEC. 211. MEASUREMENT OF DEPARTMENT OF VETERANS 

8 AFFAIRS DISCIPLINARY PROCESS OUTCOMES 

9 AND EFFECTIVENESS. 

10 (a) MEASURING AND COLLECTING.— 

11 (1) IN GENERAL.—The Secretary of Veterans 

12 Affairs shall measure and collect information on the 

13 outcomes of disciplinary actions carried out by the 

14 Department of Veterans Affairs during the three15 year period ending on the date of the enactment of 

16 this Act and the effectiveness of such actions. 

17 (2) ELEMENTS.—In measuring and collecting 

18 pursuant to paragraph (1), the Secretary shall meas19 ure and collect information regarding the following: 

20 (A) The average time from the initiation of 

21 an adverse action against an employee at the 

22 Department to the final resolution of that ac23 tion. 

24 (B) The number of distinct steps and lev25 els of review within the Department involved in 


lotter on DSK5VPTVN1PROD with BILLS
51 

•S 1094 IS

1 the disciplinary process and the average length 

2 of time required to complete these steps. 

3 (C) The rate of use of alternate discipli4 nary procedures compared to traditional dis5 ciplinary procedures and the frequency with 

6 which employees who are subject to alternative 

7 disciplinary procedures commit additional of8 fenses. 

9 (D) The number of appeals from adverse 

10 actions filed against employees of the Depart11 ment, the number of appeals upheld, and the 

12 reasons for which the appeals were upheld. 

13 (E) The use of paid administrative leave 

14 during the disciplinary process and the length 

15 of such leave. 

16 (b) REPORT.— 

17 (1) IN GENERAL.—Not later than December 31, 

18 2017, the Secretary shall submit to the appropriate 

19 committees of Congress a report on the disciplinary 

20 procedures and actions of the Department. 

21 (2) CONTENTS.—The report submitted under 

22 paragraph (1) shall include the following: 

23 (A) The information collected under sub24 section (a). 


lotter on DSK5VPTVN1PROD with BILLS
52 

•S 1094 IS

1 (B) The findings of the Secretary with re2 spect to the measurement and collection carried 

3 out under subsection (a). 

4 (C) An analysis of the disciplinary proce5 dures and actions of the Department. 

6 (D) Suggestions for improving the discipli7 nary procedures and actions of the Department. 

8 (E) Such other matters as the Secretary 

9 considers appropriate. 

10 (3) APPROPRIATE COMMITTEES OF CON11 GRESS.—In this subsection, the term ‘‘appropriate 

12 committees of Congress’’ means— 

13 (A) the Committee on Appropriations and 

14 the Committee on Veterans’ Affairs of the Sen15 ate; and 

16 (B) the Committee on Appropriations and 

17 the Committee on Veterans’ Affairs of the 

18 House of Representatives. 

Æ 


lotter on DSK5VPTVN1PROD with BILLS