U.S. Code » Title 38 » Part PART V— BOARDS, ADMINISTRATIONS, AND SERVICES › Chapter CHAPTER 74— VETERANS HEALTH ADMINISTRATION—PERSONNEL › Subchapter SUBCHAPTER V— DISCIPLINARY AND GRIEVANCE PROCEDURES

38 U.S.C. § 7461

Adverse actions: section 7401(1) employees

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(a) Whenever the Under Secretary for Health (or an official designated by the Under Secretary for Health) brings charges based on conduct or performance against a section 7401(1) employee and as a result of those charges an adverse personnel action is taken against the employee, the employee shall have the right to appeal the action.(b)(1) If the case involves or includes a question of professional conduct or competence in which a major adverse action was taken, such an appeal shall be made to a Disciplinary Appeals Board under section 7462 of this title.(2) In any case other than a case described in paragraph (1) that involves or includes a question of professional conduct or competence in which a major adverse action was not taken, such an appeal shall be made through Department grievance procedures under section 7463 of this title.(c) For purposes of this subchapter—(1) Section 7401(1) employees are employees of the Department employed on a full-time basis under a permanent appointment in a position listed in section 7401(1) of this title (other than employees in senior executive positions (as defined in section 713(d) of this title) and interns and residents appointed pursuant to section 7406 of this title).(2) A major adverse action is an adverse action which includes any of the following:(A) Suspension.(B) Transfer.(C) Reduction in grade.(D) Reduction in basic pay.(E) Discharge.(3) A question of professional conduct or competence is a question involving any of the following:(A) Direct patient care.(B) Clinical competence.(d) An issue of whether a matter or question concerns, or arises out of, professional conduct or competence is not itself subject to any grievance procedure provided by law, regulation, or collective bargaining and may not be reviewed by any other agency.(e) Whenever the Secretary proposes to prescribe regulations under this subchapter, the Secretary shall publish the proposed regulations in the Federal Register for notice-and-comment not less than 30 days before the day on which they take effect.(Added Pub. L. 102–40, title II, § 203(a), May 7, 1991, 105 Stat. 202; amended Pub. L. 102–405, title III, § 302(c)(1), Oct. 9, 1992, 106 Stat. 1984; Pub. L. 115–41, title II, §§ 201(b), 208(a), June 23, 2017, 131 Stat. 869, 878.)Editorial NotesPrior Provisions

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

Amendments

2017—Subsec. (b)(2). Pub. L. 115–41, § 208(a), amended par. (2) generally. Prior to amendment, par. (2) related to the appeals procedure for cases not described in par. (1).

Subsec. (c)(1). Pub. L. 115–41, § 201(b), inserted “employees in senior executive positions (as defined in section 713(d) of this title) and” before “interns”.

1992—Subsec. (a). Pub. L. 102–405 substituted “Under Secretary for Health” for “Chief Medical Director” in two places.

Statutory Notes and Related SubsidiariesRegulations

Pub. L. 102–40, title II, § 204, May 7, 1991, 105 Stat. 207, provided that: “The Secretary of Veterans Affairs shall prescribe regulations under subchapter V of chapter 74 of title 38, United States Code (as added by section 203), not later than 180 days after the date of the enactment of this Act [May 7, 1991]. Such regulations shall be published in the Federal Register for notice-and-comment not less than 30 days before the day on which they take effect.”

Notes of Decisions
Cited in 30 cases (10 in the last 5 years), 1995–2025 · leading case: Robert Bonner v. Dep't of Vets. Affairs Pittsburgh Healthcare Sys., 477 F.3d 1343 (Fed. Cir. 2007).
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Robert Bonner v. Dep't of Vets. Affairs Pittsburgh Healthcare Sys., 477 F.3d 1343 (Fed. Cir. 2007). · cites it 7× “2 Of particular relevance here are 38 U.S.C. §§ 7461 through 7464, which relate to disciplinary and grievance procedures generally and to disciplinary and grievance procedures for employees covered by a collective bargaining agreement.”
Suzanne Fligiel, M.D. v. Michael K. Samson, M.D., Anthony J. Principi, in His Capacity as Sec'y, Dep't of Vets. Affairs, 440 F.3d 747 (6th Cir. 2006). · cites it 3× “With regard to the § 7461 argument, Fligiel asserted that her transfer to the Ann Arbor VAMC amounted to a major adverse action, entitling her to statutory procedural protections. The defendants filed a motion to dismiss or, alternatively, for judgment on the pleadings on…”
Iqbal M. Khan v. United States, 201 F.3d 1375 (Fed. Cir. 2000). · cites it 2× “See 38 U.S.C. § 7461 (b)(1) (1994). In this case, it is clear that, while Dr.”
Dr. R. Michael Harding v. Dep't of Vets. Affairs, 448 F.3d 1373 (Fed. Cir. 2006). · cites it 2× “A "major adverse action” is defined in 38 U.S.C. § 7461 (c)(2) as any adverse action including a suspension, a transfer, a reduction in grade, a reduction in basic pay, or a discharge.”
James K. Hardison v. Michael M. Cohen, 375 F.3d 1262 (11th Cir. 2004). “” 38 U.S.C. § 7461 (c)(1). Medical residents appointed under section 7406 are not entitled to any of the remedies afforded to permanent, full-time VA medical professionals.”
Mitchum v. Hurt, 73 F.3d 30 (3rd Cir. 1996). · cites it 3× “38 U.S.C. § 7461 (c)(2). A question of professional conduct or competence is defined as a question involving “[d]irect patient care” or “[c]linieal competence.”
Gergans v. Brown, 911 F. Supp. 308 (N.D. Ill. 1995). · cites it 4× “38 U.S.C. § 7461 (a). In the case of a major adverse action, such as suspension or discharge, 6 the employee is entitled to an appeal before the Disciplinary Appeals Board “[i]f the case involves or includes a question of professional conduct or competence.”
Newmark v. Principi, 262 F. Supp. 2d 509 (E.D. Pa. 2003). · cites it 2× “38 U.S.C. § 7461 (c)(2)(E). 8 . Dr. Newmark’s employment was terminated because of a reorganization of PVAMC and not "out of a question of professional conduct or competence”.”
Jeffrey Dubnow v. Denis R. McDonough, 30 F.4th 603 (7th Cir. 2022). “Dubnow properly appealed his removal under 38 U.S.C. § 7461 (b)(1), and the VA’s Deputy Under Secretary for Health for Operations and Management appointed a Disciplinary Appeals Board (DAB) comprised of three senior VA physi- cians to consider the appeal, see 38 U.”
Elizabeth Schacht v. Steven Lieberman, 103 F.4th 794 (D.C. Cir. 2024). “See 38 U.S.C. §§ 7461 (b)(1), (c)(2)(E), 7462(b), 7464.”
Maniktahla v. John J. Pershing VA Med. Ctr., 967 F. Supp. 379 (E.D. Mo. 1997). “In response, plaintiff admits that he has availed himself of the appropriate administrative remedies, and concedes: [T]he decision of the Disciplinary Appeals Board and affirmation of that decision by the Undersecretary of Health have resolved all genuine issues of material fact…”
Claasen v. Brown, 33 F. Supp. 2d 511 (N.D.W. Va. 1998). · cites it 3× “As an appointee under the provisions of 38 U.S.C. § 7461 (b)(1), Claasen was subject to the disciplinary procedures under the statute for major adverse actions arising from “questions of professional conduct or competence.”
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— 38 U.S.C. § 7461(c)(2) — 1 case
Doran v. McDonald (S.D. Ohio 2020).
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