Page:United States Statutes at Large Volume 105 Part 1.djvu/233

 PUBLIC LAW 102-40—MAY 7, 1991 105 STAT. 205 appropriate relating directly to the proposed action, including expungement of records relating to the action. "(2) If the Secretary finds a decision of the board to be clearly contrary to the evidence or unlawful, the Secretary may— "(A) reverse the decision of the board, or "(B) vacate the decision of the board and remand the matter to the Board for further consideration. "(3) If the Secretary finds the decision of the board (while not clearly contrary to the evidence or unlawful) to be not justified by the nature of the charges, the Secretary may mitigate the adverse action imposed. "(4) The Secretary's execution of a board's decision shall be the final administrative action in the case. "(e) The Secretary may designate an employee of the Department to represent management in any case before a Disciplinary Appeals Board. "(fKD A section 7401(1) employee adversely affected by a final order or decision of a Disciplinary Appeals Board (as reviewed by the Secretary) may obtain judicial review of the order or decision. "(2) In any case in which judicial review is sought under this subsection, the court shall review the record and hold unlawful and set aside any agency action, finding, or conclusion found to be— "(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; "(B) obtained without procedures required by law, rule, or regulation having been followed; or "(C) unsupported by substantial evidence. "§ 7463. Other adverse actions "(a) The Secretary shall prescribe by regulation procedures for the Regulations, 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 the same notice and opportunity to answer with respect to those charges as provided in subparagraphs (A) and (B) of section 7462(b)(l) of this title. "(2) In any other case in which charges are brought against a section 7401(1) employee, the employee is entitled to— "(A) an advance written notice stating the specific reason for the proposed action, and

�