§ 713. Senior executives: removal, demotion, or suspension based on performance or misconduct

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 2014

   Veterans Access, Choice, and Accountability Act of 2014

   Pub. L. 113–146 title VII § 707(a)(1) · 128 Stat. 1754

   Enacted · 38 U.S.C. § 713

   Added Pub. L. 113–146, title VII, § 707(a)(1), Aug. 7, 2014, 128 Stat. 1798

   Source evidence

   Code source credit
   Added Pub. L. 113–146, title VII, § 707(a)(1), Aug. 7, 2014, 128 Stat. 1798

   Enacted provision · exact public law section
   (1) In general.— Chapter 7 of title 38, United States Code, is amended by adding at the end the following new section: “§ 713. Senior executives: removal based on performance or misconduct “(a) In General.— (1) The Secretary may remove an individual employed in a senior executive position at the Department of Veterans Affairs from the senior executive position if the Secretary determines the performance or misconduct of the individual warrants such removal. If the Secretary so removes such an individual, the Secretary may— “(A) remove the individual from the civil service (as defined in section 2101 of title 5); or “(B) in the case of an individual described in paragraph (2), transfer the individual from the senior executive position to a General Schedule position at any grade of the General Schedule for which the individual is qualified and that the Secretary determines is appropriate. “(2) An individual described in this paragraph is an individual who— “(A) previously occupied a permanent position within the competitive service (as that term is defined in section 2102 of title 5); “(B) previously occupied a permanent position within the excepted service (as that term is defined in section 2103 of title 5); or “(C) prior to employment in a senior executive position at the Department of Veterans Affairs, did not occupy any position within the Federal Government. “(b) Pay of Transferred Individual.— (1) Notwithstanding any other provision of law, including the requirements of section 3594 of title 5, any individual transferred to a General Schedule position under subsection (a)(2) shall, beginning on the date of such transfer, receive the annual rate of pay applicable to such position. “(2) An individual so transferred 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 transferred 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 transferring an individual from a senior executive position 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 transfer and the reason for such removal or transfer. “(d) Procedure.— (1) The procedures under section 7543(b) of title 5 shall not apply to a removal or transfer under this section. “(2) (A) Subject to subparagraph (B) and subsection (e), any removal or transfer 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 transfer may only be made if such appeal is made not later than seven days after the date of such removal or transfer. “(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. Deadline. The administrative judge shall expedite any such appeal under such section and, in any such case, shall issue a decision not later than 21 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 21-day requirement under paragraph (1), the removal or transfer is final. Deadline. Reports. In such a case, the Merit Systems Protection Board shall, within 14 days after the date that such removal or transfer 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 transfer 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) Relation to Title 5.— (1) The authority provided by this section is in addition to the authority provided by section 3592 or subchapter V of chapter 75 of title 5. “(2) Section 3592(b)(1) of title 5 does not apply to an action to remove or transfer an individual under this section. “(g) Definitions.— In this section: “(1) The term ‘individual’ means— “(A) a career appointee (as that term is defined in section 3132(a)(4) of title 5); or “(B) any individual who occupies an administrative or executive position and who was appointed under section 7306(a) or section 7401(1) of this title. “(2) 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. “(3) The term ‘senior executive position’ means— “(A) with respect to a career appointee (as that term is defined in section 3132(a)(4) of title 5), a Senior Executive Service position (as such term is defined in section 3132(a)(2) of title 5); and “(B) with respect to an individual appointed under section 7306(a) or section 7401(1) of this title, an administrative or executive position.” .

2. 2017

   Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017

   Pub. L. 115–41 title II § 201(a) · 131 Stat. 862

   Amended · 38 U.S.C. § 713

   Pub. L. 115–41 amended section generally. Prior to amendment, section related to removal of senior executives based on performance or misconduct

   Source evidence

   Code amendment note
   Pub. L. 115–41 amended section generally. Prior to amendment, section related to removal of senior executives based on performance or misconduct.

   Enacted provision · exact public law section
   (a) In General.— Section 713 of title 38, United States Code, is amended to read as follows: “§ 713. Senior executives: removal, demotion, or suspension based on performance or misconduct “(a) Authority.— (1) The Secretary may, as provided in this section, reprimand or suspend, involuntarily reassign, demote, or remove a covered individual from a senior executive position at the Department if the Secretary determines that the misconduct or performance of the covered individual warrants such action. “(2) If the Secretary so removes such an individual, the Secretary may remove the individual from the civil service (as defined in section 2101 of title 5). “(b) Rights and Procedures.— (1) A covered individual who is the subject of an action under subsection (a) is entitled to— “(A) advance notice of the action and a file containing all evidence in support of the proposed action; “(B) be represented by an attorney or other representative of the covered individual’s choice; and “(C) grieve the action in accordance with an internal grievance process that the Secretary, in consultation with the Assistant Secretary for Accountability and Whistleblower Protection, shall establish for purposes of this subsection. “(2) (A) The aggregate period for notice, response, and decision on an action under subsection (a) may not exceed 15 business days. “(B) The period for the response of a covered individual to a notice under paragraph (1)(A) of an action under subsection (a) shall be 7 business days. “(C) A decision under this paragraph on an action under subsection (a) shall be issued not later than 15 business days after notice of the action is provided to the covered individual under paragraph (1)(A). The decision shall be in writing, and shall include the specific reasons therefor. “(3) The Secretary shall ensure that the grievance process established under paragraph (1)(C) takes fewer than 21 days. “(4) A decision under paragraph (2) that is not grieved, and a grievance decision under paragraph (3), shall be final and conclusive. “(5) A covered individual adversely affected by a decision under paragraph (2) that is not grieved, or by a grievance decision under paragraph (3), may obtain judicial review of such decision. “(6) In any case in which judicial review is sought under paragraph (5), the court shall review the record and may set aside any Department action found to be— “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with a provision of law; “(B) obtained without procedures required by a provision of law having been followed; or “(C) unsupported by substantial evidence. “(c) Relation to Other Provisions of Law.— Section 3592(b)(1) of title 5 and the procedures under section 7543(b) of such title do not apply to an action under subsection (a). “(d) Definitions.— In this section: “(1) The term ‘covered individual’ means— “(A) a career appointee (as that term is defined in section 3132(a)(4) of title 5); or “(B) any individual who occupies an administrative or executive position and who was appointed under section 7306(a), section 7401(1), or section 7401(4) of this title. “(2) 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. “(3) The term ‘senior executive position’ means— “(A) with respect to a career appointee (as that term is defined in section 3132(a) of title 5), a Senior Executive Service position (as such term is defined in such section); and “(B) with respect to a covered individual appointed under section 7306(a) or section 7401(1) of this title, an administrative or executive position.” .

2 of 2 references resolved to an enrolled provision