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. § 7463

Other adverse actions

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(a) The Secretary shall prescribe by regulation procedures for the consideration of grievances of section 7401(1) employees arising from adverse personnel actions in which each action taken either—(1) is not a major adverse action; or(2) does not arise out of a question of professional conduct or competence.Disciplinary Appeals Boards shall not have jurisdiction to review such matters, other than as part of a mixed case (as defined in section 7462(a)(3) of this title).(b) In the case of an employee who is a member of a collective bargaining unit under chapter 71 of title 5, the employee may seek review of an adverse action described in subsection (a) either under the grievance procedures provided through regulations prescribed under subsection (a) or through grievance procedures determined through collective bargaining, but not under both. The employee shall elect which grievance procedure to follow. Any such election may not be revoked.(c)(1) In any case in which charges are brought against a section 7401(1) employee which could result in a major adverse action and which do not involve professional conduct or competence, the employee is entitled to notice and an opportunity to answer with respect to those charges in accordance with subparagraphs (A) and (B) of section 7462(b)(1) of this title, but within the time periods specified in paragraph (3).(2) In any other case in which charges are brought against a section 7401(1) employee, the employee is entitled, within the aggregate time period specified in paragraph (3)(A), to—(A) written notice stating the specific reason for the proposed action, and(B) time to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer.(3)(A) The aggregate period for the resolution of charges against an employee under paragraph (1) or (2) may not exceed 15 business days.(B) The period for the response of an employee under paragraph (1) or (2)(B) to written notice of charges under paragraph (1) or (2)(A), as applicable, shall be seven business days.(C) The deciding official shall render a decision on charges under paragraph (1) or (2) not later than 15 business days after notice is provided on the charges for purposes of paragraph (1) or (2)(A), as applicable.(d) Grievance procedures prescribed under subsection (a) shall include the following:(1) A right to formal review by an impartial examiner within the Department of Veterans Affairs, who, in the case of an adverse action arising from a question of professional conduct or competence, shall be selected from the panel designated under section 7464 of this title.(2) A right to a prompt report of the findings and recommendations by the impartial examiner.(3) A right to a prompt review of the examiner’s findings and recommendations by an official of a higher level than the official who decided upon the action. That official may accept, modify, or reject the examiner’s recommendations.(e) In any review of an adverse action under the grievance procedures prescribed under subsection (a), the employee is entitled to be represented by an attorney or other representative of the employee’s choice at all stages of the case.(Added Pub. L. 102–40, title II, § 203(a), May 7, 1991, 105 Stat. 205; amended Pub. L. 115–41, title II, § 208(c), June 23, 2017, 131 Stat. 878; Pub. L. 115–407, title VII, § 702(a)(2), Dec. 31, 2018, 132 Stat. 5381.)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

2018—Subsec. (c)(2)(B). Pub. L. 115–407 substituted “to answer” for “to answer to answer”.

2017—Subsec. (c)(1). Pub. L. 115–41, § 208(c)(1), substituted “notice and an opportunity to answer with respect to those charges in accordance with subparagraphs (A) and (B) of section 7462(b)(1) of this title, but within the time periods specified in paragraph (3)” for “the same notice and opportunity to answer with respect to those charges as provided in subparagraphs (A) and (B) of section 7462(b)(1) of this title”.

Subsec. (c)(2). Pub. L. 115–41, § 208(c)(2)(A), in introductory provisions, inserted “, within the aggregate time period specified in paragraph (3)(A),” after “is entitled”.

Subsec. (c)(2)(A). Pub. L. 115–41, § 208(c)(2)(B), substituted “written notice” for “an advance written notice”.

Subsec. (c)(2)(B). Pub. L. 115–41, § 208(c)(2)(C), substituted “time to answer” for “a reasonable time”.

Subsec. (c)(3). Pub. L. 115–41, § 208(c)(3), added par. (3).

Notes of Decisions
Cited in 20 cases (4 in the last 5 years), 1993–2024 · leading case: Earl P. Dick v. Dep't of Vets. Affairs, 290 F.3d 1356 (Fed. Cir. 2002).
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Earl P. Dick v. Dep't of Vets. Affairs, 290 F.3d 1356 (Fed. Cir. 2002). · cites it 9× “Appellant filed a request for corrective action with the Office of the Special Counsel (“OSC”) concerning his demotion, alleging that the demotion constituted an “adverse personnel action” under 38 U.”
Iqbal M. Khan v. United States, 201 F.3d 1375 (Fed. Cir. 2000). · cites it 8× “Rather, 38 U.S.C. § 7463 (1994) provides the correct avenue of relief.”
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 2× “In deciding whether Pathak was entitled to judicial review under the APA, the First Circuit stated: [I]t was Dr. Pathak’s actions as an employee and as a supervisor that were at issue, not his clinical competence or direct patient care.”
U.S. Dep't of Vets. Affairs v. Fed. Labor Relations Auth., 9 F.3d 123 (D.C. Cir. 1993). · cites it 2× “See 38 U.S.C. § 7463 , 5 U.S.C. § 7121 . This interpretation emphatically does not include as negotiable all matters that may become the subject of grievance procedures.”
Robert Bonner v. Dep't of Vets. Affairs Pittsburgh Healthcare Sys., 477 F.3d 1343 (Fed. Cir. 2007). · cites it 2× “38 U.S.C. § 7463 (a), (d). Significantly, under the Department grievance procedures of § 7463, an employee cannot obtain review by a Disciplinary Appeals Board (with an exception not relevant here), nor can he obtain judicial review of the Department’s final decision.”
Dr. R. Michael Harding v. Dep't of Vets. Affairs, 448 F.3d 1373 (Fed. Cir. 2006). “38 U.S.C. § 7463 applies in cases that do not involve either a "major adverse action” or "a question of professional conduct or competence.”
Newmark v. Principi, 262 F. Supp. 2d 509 (E.D. Pa. 2003). “Thus, his claims of alleged retaliation and non-preferential hiring are governed by the grievance procedures of 38 U.S.C. § 7463 . See Khan v. United States, 201 F.”
Claasen v. Brown, 33 F. Supp. 2d 511 (N.D.W. Va. 1998). · cites it 4× “38 U.S.C. § 7463 (b)(1) and (2). Claasen moved to strike materials from the grievance process based on his belief that the documents were provided unilaterally 0ex-parte) to Gallagher.”
Gergans v. Brown, 911 F. Supp. 308 (N.D. Ill. 1995). “However, if the major adverse action does not involve or include a question of professional conduct or competence, the employee may not appeal the decision to the Disciplinary Appeals Board, but must appeal through the grievance procedures provided in 38 U.S.C. § 7463 or the…”
Said I. Hakki, M.D. v. Sec'y, Dep't of Vets. Affairs (11th Cir. 2021). · cites it 4× “For similar reasons, as explained below, we hold in this case that the same provisions 21 USCA11 Case: 19-14645 Date Filed: 08/03/2021 Page: 22 of 55 of the VBA evidence a clear congressional intent to preclude APA judicial review of a VA disciplinary decision made pursuant to…”
Lajoie v. United States Dep't of Vet. Affairs (D. Mont. 2024). · cites it 3× “” 38 U.S.C. § 7463 . A VA employee may not seek judicial review of the VA’s review of a grievance governed by § 7463.”
Shaller v. United States, 58 F. App'x 464 (Fed. Cir. 2003). “Khan had an exclusive grievance procedure under 38 U.S.C. § 7463 . Id. at 1382 . Moreover, under the mandate of United States v.”
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