miller

.....................................................................

(Original Signature of Member)

114TH CONGRESS 1ST SESSION H. R. ll

To amend title 38, United States Code, to provide for the removal or demotion of employees of the Department of Veterans Affairs based on perform-ance or misconduct, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

Mr. MILLER of Florida introduced the following bill; which was referred to the Committee on lllllllllllllll

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.

Be it enacted by the Senate and House of Representa-1

tives of the United States of America in Congress assembled, 2

SECTION 1. SHORT TITLE. 3

This Act may be cited as the VA Accountability Act 4

of 2015. 5

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2 SEC. 2. REMOVAL OR DEMOTION OF EMPLOYEES BASED ON 1

PERFORMANCE OR MISCONDUCT. 2

(a) IN GENERAL.Chapter 7 of title 38, United 3

States Code, is amended by adding at the end the fol-4

lowing new section: 5

714. Employees: removal or demotion based on 6

performance or misconduct 7

(a) IN GENERAL.The Secretary may remove or 8

demote an individual who is an employee of the Depart-9

ment of Veterans Affairs if the Secretary determines the 10

performance or misconduct of the individual warrants 11

such removal or demotion. If the Secretary so removes or 12

demotes such an individual, the Secretary may 13

(1) remove the individual from the civil service 14

(as defined in section 2101 of title 5); or 15

(2) demote the individual by means of 16

(A) a reduction in grade for which the in-17

dividual is qualified and that the Secretary de-18

termines is appropriate; or 19

(B) a reduction in annual rate of pay 20

that the Secretary determines is appropriate. 21

(b) PAY OF CERTAIN DEMOTED INDIVIDUALS.(1) 22

Notwithstanding any other provision of law, any individual 23

subject to a demotion under subsection (a)(2)(A) shall, be-24

ginning on the date of such demotion, receive the annual 25

rate of pay applicable to such grade. 26



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3

(2) An individual so demoted may not be placed on 1

administrative leave or any other category of paid leave 2

during the period during which an appeal (if any) under 3

this section is ongoing, and may only receive pay if the 4

individual reports for duty. If an individual so demoted 5

does not report for duty, such individual shall not receive 6

pay or other benefits pursuant to subsection (e)(5). 7

(c) NOTICE TO CONGRESS.Not later than 30 days 8

after removing or demoting an individual under subsection 9

(a), the Secretary shall submit to the Committees on Vet-10

erans Affairs of the Senate and House of Representatives 11

notice in writing of such removal or demotion and the rea-12

son for such removal or demotion. 13

(d) PROCEDURE.(1) The procedures under section 14

7513(b) of title 5 and chapter 43 of such title shall not 15

apply to a removal or demotion under this section. 16

(2)(A) Subject to subparagraph (B) and subsection 17

(e), any removal or demotion under subsection (a) may 18

be appealed to the Merit Systems Protection Board under 19

section 7701 of title 5. 20

(B) An appeal under subparagraph (A) of a removal 21

or demotion may only be made if such appeal is made not 22

later than seven days after the date of such removal or 23

demotion. 24



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4

(e) EXPEDITED REVIEW BY ADMINISTRATIVE 1

JUDGE.(1) Upon receipt of an appeal under subsection 2

(d)(2)(A), the Merit Systems Protection Board shall refer 3

such appeal to an administrative judge pursuant to section 4

7701(b)(1) of title 5. The administrative judge shall expe-5

dite any such appeal under such section and, in any such 6

case, shall issue a decision not later than 45 days after 7

the date of the appeal. 8

(2) Notwithstanding any other provision of law, in-9

cluding section 7703 of title 5, the decision of an adminis-10

trative judge under paragraph (1) shall be final and shall 11

not be subject to any further appeal. 12

(3) In any case in which the administrative judge 13

cannot issue a decision in accordance with the 45-day re-14

quirement under paragraph (1), the removal or demotion 15

is final. In such a case, the Merit Systems Protection 16

Board shall, within 14 days after the date that such re-17

moval or demotion is final, submit to Congress and the 18

Committees on Veterans Affairs of the Senate and House 19

of Representatives a report that explains the reasons why 20

a decision was not issued in accordance with such require-21

ment. 22

(4) The Merit Systems Protection Board or admin-23

istrative judge may not stay any removal or demotion 24

under this section. 25



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5

(5) During the period beginning on the date on 1

which an individual appeals a removal from the civil serv-2

ice under subsection (d) and ending on the date that the 3

administrative judge issues a final decision on such appeal, 4

such individual may not receive any pay, awards, bonuses, 5

incentives, allowances, differentials, student loan repay-6

ments, special payments, or benefits. 7

(6) To the maximum extent practicable, the Sec-8

retary shall provide to the Merit Systems Protection 9

Board, and to any administrative judge to whom an appeal 10

under this section is referred, such information and assist-11

ance as may be necessary to ensure an appeal under this 12

subsection is expedited. 13

(f) LIMITATION ON REMOVAL OR DEMOTION.In 14

the case of an individual seeking corrective action (or on 15

behalf of whom corrective action is sought) from the Office 16

of Special Counsel based on an alleged prohibited per-17

sonnel practice described in section 2302(b) of title 5, the 18

Secretary may not remove or demote such individual 19

under subsection (a) without the approval of the Special 20

Counsel under section 1214(f) of title 5. 21

(g) RELATION TO TITLE 5.The authority provided 22

by this section is in addition to the authority provided by 23

subchapter V of chapter 75 of title 5 and chapter 43 of 24

such title. 25



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6

(h) DEFINITIONS.In this section: 1

(1) The term individual means an individual 2

occupying a position at the Department of Veterans 3

Affairs but does not include 4

(A) an individual, as that term is defined 5

in section 713(g)(1); or 6

(B) a political appointee. 7

(2) The term grade has the meaning given 8

such term in section 7511(a) of title 5. 9

(3) The term misconduct includes neglect of 10

duty, malfeasance, or failure to accept a directed re-11

assignment or to accompany a position in a transfer 12

of function. 13

(4) The term political appointee means an in-14

dividual who is 15

(A) employed in a position described 16

under sections 5312 through 5316 of title 5, 17

(relating to the Executive Schedule); 18

(B) is a limited term appointee, limited 19

emergency appointee, or noncareer appointee in 20

the Senior Executive Service, as defined under 21

paragraphs (5), (6), and (7), respectively, of 22

section 3132(a) of title 5; or 23

(C) is employed in a position of a con-24

fidential or policy-determining character under 25



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7

schedule C of subpart C of part 213 of title 5 1

of the Code of Federal Regulations.. 2

(b) CLERICAL AND CONFORMING AMENDMENTS. 3

(1) CLERICAL.The table of sections at the be-4

ginning of such chapter is amended by adding at the 5

end the following new item: 6714. Employees: removal or demotion based on performance or misconduct..

(2) CONFORMING.Section 4303(f) of title 5, 7

United States Code, is amended 8

(A) by striking or at the end of para-9

graph (2); 10

(B) by striking the period at the end of 11

paragraph (3) and inserting , or; and 12

(C) by adding at the end the following: 13

(4) any removal or demotion under section 14

714 of title 38.. 15

SEC. 3. REQUIRED PROBATIONARY PERIOD FOR NEW EM-16

PLOYEES OF DEPARTMENT OF VETERANS AF-17

FAIRS. 18

(a) IN GENERAL.Chapter 7 of title 38, United 19

States Code, as amended by section 2, is further amended 20

by adding at the end the following new section: 21

715. Probationary period for employees 22

(a) IN GENERAL.Notwithstanding sections 3321 23

and 3393(d) of title 5, the appointment of a covered em-24

ployee shall become final only after such employee has 25



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8

served a probationary period of 18 months. The Secretary 1

may extend a probationary period under this subsection 2

at the discretion of the Secretary. 3

(b) COVERED EMPLOYEE.In this section, the term 4

covered employee 5

(1) means any individual 6

(A) appointed to a permanent position 7

within the competitive service at the Depart-8

ment; or 9

(B) appointed as a career appointee (as 10

that term is defined in section 3132(a)(4) of 11

title 5) within the Senior Executive Service at 12

the Department; and 13

(2) does not include any individual with a pro-14

bationary period prescribed by section 7403 of this 15

title. 16

(c) PERMANENT HIRES.Upon the expiration of a 17

covered employees probationary period under subsection 18

(a), the supervisor of the employee shall determine wheth-19

er the appointment becomes final based on regulations 20

prescribed for such purpose by the Secretary.. 21

(b) APPLICATION.The amendment made by sub-22

section (a) shall apply to any covered employee (as that 23

term is defined in section 715 of title 38, United States 24



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9

Code, as added by such subsection) appointed after the 1

date of enactment of this section. 2

(c) CLERICAL AND CONFORMING AMENDMENTS. 3

(1) CLERICAL.The table of sections at the be-4

ginning of such chapter, as amended by section 2, 5

is further amended by adding at the end the fol-6

lowing new item: 7715. Probationary period for employees..

(2) CONFORMING.Title 5, United States 8

Code, is amended 9

(A) in section 3321(c), by 10

(i) striking Service or and inserting 11

Service,; and 12

(ii) inserting at the end before the pe-13

riod the following: , or any individual cov-14

ered by section 715 of title 38; and 15

(B) in section 3393(d), by adding at the 16

end after the period the following: The pre-17

ceding sentence shall not apply to any indi-18

vidual covered by section 715 of title 38.. 19

SEC. 4. COMPTROLLER GENERAL STUDY OF DEPARTMENT 20

TIME AND SPACE USED FOR LABOR ORGANI-21

ZATION ACTIVITY. 22

(a) STUDY REQUIRED.Not later than 180 days 23

after the date of the enactment of this Act, the Comp-24

troller General of the United States shall conduct a study 25



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10

on the amount of time spent by Department of Veterans 1

Affairs employees carrying out organizing activities relat-2

ing to labor organizations and the amount of space in De-3

partment facilities used for such activities. The study shall 4

include a cost-benefit analysis of the use of such time and 5

space for such activities. 6

(b) REPORT TO CONGRESS.Not later than 90 days 7

after the completion of the study required under sub-8

section (a), the Comptroller General shall submit to the 9

Committees on Veterans Affairs of the Senate and House 10

of Representatives a report on the results of the study. 11



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F:\VA\VA14\R\EO\REMOVAL.XML 4/22/2015 14:02 12/18/2014 11:21 1132-1218-672431 586523|10 [Discussion Draft] (Original Signature of Member) [DISCUSSION DRAFT] I 114th CONGRESS 1st Session H. R. __ IN THE HOUSE OF REPRESENTATIVES Mr. Miller of Florida introduced the following bill; which was referred to the Committee on _______________ 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. 1. Short title This Act may be cited as the VA Accountability Act of 2015. 2. Removal or demotion of employees based on performance or misconduct (a) In general Chapter 7 of title 38, United States Code, is amended by adding at the end the following new section: 714. 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 of Veterans Affairs 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 pay or other benefits pursuant to subsection (e)(5). (c) Notice to Congress Not later than 30 days after removing or demoting an individual under subsection (a), the Secretary shall submit to the Committees on Veterans' Affairs of the Senate and House of Representatives notice in writing of such removal or demotion and the reason for such removal or demotion. (d) Procedure (1) The procedures under section 7513(b) of title 5 and chapter 43 of such title shall not apply to a removal or demotion under this section. (2) (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 Administrative Judge (1) Upon receipt of an appeal under subsection (d)(2)(A), the Merit Systems Protection Board shall refer such appeal to an administrative judge pursuant to section 7701(b)(1) of title 5. The administrative judge shall expedite any such appeal under such section and, in any such case, shall issue a decision not later than 45 days after the date of the appeal. (2) Notwithstanding any other provision of law, including section 7703 of title 5, the decision of an administrative judge under paragraph (1) shall be final and shall not be subject to any further appeal. (3) In any case in which the administrative judge cannot issue a decision in accordance with the 45-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 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. (4) The Merit Systems Protection Board or administrative judge may not stay any removal or demotion under this section. (5) 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 administrative judge 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. (6) To the maximum extent practicable, the Secretary shall provide to the Merit Systems Protection Board, and to any administrative judge to whom an appeal under this section is referred, such information and assistance as may be necessary to ensure an appeal under this subsection is expedited. (f) Limitation on removal or demotion 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. (g) Relation to Title 5 The authority provided by this section is in addition to the authority provided by subchapter V of chapter 75 of title 5 and chapter 43 of such title. (h) Definitions In this section: (1) The term individual means an individual occupying a position at the Department of Veterans Affairs but does not include (A) an individual, as that term is defined in section 713(g)(1); or (B) a political appointee. (2) The term grade has the meaning given such 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) is 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) is 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. . (b) Clerical and conforming amendments (1) Clerical The table of sections at the beginning of such chapter is amended by adding at the end the following new item: 714. Employees: removal or demotion based on performance or misconduct. . (2) Conforming Section 4303(f) of title 5, United States Code, is amended (A) by striking or at the end of paragraph (2); (B) by striking the period at the end of paragraph (3) and inserting , or; and (C) by adding at the end the following: (4) any removal or demotion under section 714 of title 38. . 3. Required probationary period for new employees of Department of Veterans Affairs (a) In general Chapter 7 of title 38, United States Code, as amended by section 2, is further amended by adding at the end the following new section: 715. Probationary period for employees (a) In general Notwithstanding sections 3321 and 3393(d) of title 5, the appointment of a covered employee shall become final only after such employee has served a probationary period of 18 months. The Secretary may extend a probationary period under this subsection at the discretion of the Secretary. (b) Covered employee In this section, the term covered employee (1) means any individual (A) appointed to a permanent position within the competitive service at the Department; or (B) appointed as a career appointee (as that term is defined in section 3132(a)(4) of title 5) within the Senior Executive Service at the Department; and (2) does not include any individual with a probationary period prescribed by section 7403 of this title. (c) Permanent hires Upon the expiration of a covered employees probationary period under subsection (a), the supervisor of the employee shall determine whether the appointment becomes final based on regulations prescribed for such purpose by the Secretary. . (b) Application The amendment made by subsection (a) shall apply to any covered employee (as that term is defined in section 715 of title 38, United States Code, as added by such subsection) appointed after the date of enactment of this section. (c) Clerical and conforming amendments (1) Clerical The table of sections at the beginning of such chapter, as amended by section 2, is further amended by adding at the end the following new item: 715. Probationary period for employees. . (2) Conforming Title 5, United States Code, is amended (A) in section 3321(c), by (i) striking Service or and inserting Service,; and (ii) inserting at the end before the period the following: , or any individual covered by section 715 of title 38; and (B) in section 3393(d), by adding at the end after the period the following: The preceding sentence shall not apply to any individual covered by section 715 of title 38.. 4. Comptroller General study of Department time and space used for labor organization activity (a) Study required Not later than 180 days after the date of the enactment of this Act, the Comptroller General of the United States shall conduct a study on the amount of time spent by Department of Veterans Affairs employees carrying out organizing activities relating to labor organizations and the amount of space in Department facilities used for such activities. The study shall include a cost-benefit analysis of the use of such time and space for such activities. (b) Report to Congress Not later than 90 days after the completion of the study required under subsection (a), the Comptroller General shall submit to the Committees on Veterans Affairs of the Senate and House of Representatives a report on the results of the study.

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