Veterans Affairs Secretary Denis McDonough delivers remarks with President Joe Biden at the White House on June 7, 2022, in Washington, D.C. McDonough in 2023 announced the VA would stop enforcing authorities in the 2017 VA Accountability and Whistleblower Protection Act.

Veterans Affairs Secretary Denis McDonough delivers remarks with President Joe Biden at the White House on June 7, 2022, in Washington, D.C. McDonough in 2023 announced the VA would stop enforcing authorities in the 2017 VA Accountability and Whistleblower Protection Act. Win McNamee / Getty Images

VA employees ordered to pay back bonuses over misconduct now have an appeal process

The rulemaking is the result of a 2017 law intended to make it easier to remove poor-performing VA employees, but the Biden administration previously decided not to use it after legal decisions blunted the law’s authorities.

Updated: 5:00 p.m., Jan. 15

The Office of Personnel Management on Wednesday published an interim final rule setting procedures for current and former Veterans Affairs Department employees to appeal recoupments of awards, bonuses and relocation expenses under the 2017 VA Accountability and Whistleblower Protection Act; although, the Biden administration has largely stopped using the law to discipline workers. 

Under the law, the VA secretary can require an employee to repay, in whole or in part, any award or bonus they’ve received if it’s determined they had previously engaged in misconduct or poor performance. It also lets the secretary order an employee to repay relocation expenses if their authorization was influenced by fraud or malfeasance. 

Wednesday’s interim final rule establishes procedures for individuals to appeal such an order to OPM, whose authority to review is limited to whether VA appropriately followed recoupment policies. The agency is not authorized to adjudicate the underlying disciplinary decisions by VA. 

The 2017 law gives individuals seven business days after receiving a recoupment order to submit such an appeal, and OPM has 30 business days after receiving an appeal to issue a final decision. OPM’s new guidance specifies what information must be included in the appeal, including an explanation regarding why the employee believes the order was issued incorrectly.  

The appeal process takes effect on Wednesday, but OPM could ultimately modify the requirements. The agency is requesting comments on it through March 17. Specifically, it requested opinions on whether VA bargaining unit employees can use grievance procedures to challenge a recoupment order instead of filing an appeal and if OPM should publish appeal decisions. 

The 2017 law also permits the VA secretary to reduce the retirement benefits of employees convicted of certain crimes and removed for performance or misconduct, but OPM said guidelines for appealing those decisions would be addressed in future rulemaking. 

VA Secretary Denis McDonough in 2023 ceased enforcement of the accountability law after decisions by federal courts and the Federal Labor Relations Authority weakened it.

According to the interim final rule, VA in January 2024 finalized its policies for recouping awards, bonuses and relocation expenses under the 2017 law. OPM said that it needs to be ready to handle appeals if VA issues an order to recoup. OPM officials further said they had to wait to develop their policies until they had a better understanding of the VA's process and what records the department would provide to the agency.

The top Republicans on the congressional Veterans’ Affairs committees in the 118th Congress sponsored legislation that would reinstate and strengthen many of the provisions in the 2017 law. And President-elect Donald Trump’s pick for VA secretary, former Rep. Doug Collins, R-Ga., has discussed making it easier to remove VA employees.

Clarification: This story has been updated to provide more information about the timeline for the development of the interim final rule.