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38 U.S.C. § 714 — Employees: removal, demotion, or suspension based on performance or misconduct

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38 U.S.C. § 714 — Employees: removal, demotion, or suspension based on performance or misconduct

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Source file: Laws/federal/codes/united-states-code/title-38/section-714-employees-removal-demotion-or-suspension-based-on-performance-or-miscond--d690bbfbe6.md
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Source location: Title 38, Chapter 7, § 714; chapter-007-employees.md

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**(a) In General.—** (1) The Secretary may remove, demote, or suspend a covered individual who is an employee of the Department if the Secretary determines the performance or misconduct of the covered individual warrants such removal, demotion, or suspension. (2) If the Secretary so removes, demotes, or suspends such a covered individual, the Secretary may— (A) remove the covered individual from the civil service (as defined in [section 2101 of title 5](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section2101&num=0&edition=prelim)); (B) demote the covered individual by means of a reduction in grade for which the covered individual is qualified, that the Secretary determines is appropriate, and that reduces the annual rate of pay of the covered individual; or (C) suspend the covered individual. **(b) Pay of Certain Demoted Individuals.—** (1) Notwithstanding any other provision of law, any covered individual subject to a demotion under subsection (a)(2) shall, beginning on the date of such demotion, receive the annual rate of pay applicable to such grade. (2) (A) A covered individual so demoted may not be placed on administrative leave during the period during which an appeal (if any) under this section is ongoing, and may only receive pay if the covered individual reports for duty or is approved to use accrued unused annual, sick, family medical, military, or court leave. (B) If a covered individual so demoted does not report for duty or receive approval to use accrued unused leave, such covered individual shall not receive pay or other benefits pursuant to subsection (d)(5). **(c) Procedure.—** (1) (A) The aggregate period for notice, response, and final decision in a removal, demotion, or suspension under this section may not exceed 15 business days. (B) The period for the response of a covered individual to a notice of a proposed removal, demotion, or suspension under this section shall be 7 business days. (C) Paragraph (3) of subsection (b) of [section 7513 of title 5](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section7513&num=0&edition=prelim) shall apply with respect to a removal, demotion, or suspension under this section. (D) The procedures in this subsection shall supersede any collective bargaining agreement to the extent that such agreement is inconsistent with such procedures. (2) The Secretary shall issue a final decision with respect to a removal, demotion, or suspension under this section not later than 15 business days after the Secretary provides notice, including a file containing all the evidence in support of the proposed action, to the covered individual of the removal, demotion, or suspension. The decision shall be in writing and shall include the specific reasons therefor. (3) The procedures under chapter 43 of title 5 shall not apply to a removal, demotion, or suspension under this section. (4) (A) Subject to subparagraph (B) and subsection (d), any removal or demotion under this section, and any suspension of more than 14 days under this section, may be appealed to the Merit Systems Protection Board, which shall refer such appeal to an administrative judge pursuant to [section 7701(b)(1) of title 5](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section7701/b/1&num=0&edition=prelim). (B) An appeal under subparagraph (A) of a removal, demotion, or suspension may only be made if such appeal is made not later than 10 business days after the date of such removal, demotion, or suspension. **(d) Expedited Review.—** (1) Upon receipt of an appeal under subsection (c)(4)(A), the administrative judge shall expedite any such appeal under [section 7701(b)(1) of title 5](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section7701/b/1&num=0&edition=prelim) and, in any such case, shall issue a final and complete decision not later than 180 days after the date of the appeal. (2) (A) Notwithstanding [section 7701(c)(1)(B) of title 5](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section7701/c/1/B&num=0&edition=prelim), the administrative judge shall uphold the decision of the Secretary to remove, demote, or suspend an employee under subsection (a) if the decision is supported by substantial evidence. (B) Notwithstanding title 5 or any other provision of law, if the decision of the Secretary is supported by substantial evidence, the administrative judge shall not mitigate the penalty prescribed by the Secretary. (3) (A) The decision of the administrative judge under paragraph (1) may be appealed to the Merit Systems Protection Board. (B) Notwithstanding [section 7701(c)(1)(B) of title 5](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section7701/c/1/B&num=0&edition=prelim), the Merit Systems Protection Board shall uphold the decision of the Secretary to remove, demote, or suspend an employee under subsection (a) if the decision is supported by substantial evidence. (C) Notwithstanding title 5 or any other provision of law, if the decision of the Secretary is supported by substantial evidence, the Merit Systems Protection Board shall not mitigate the penalty prescribed by the Secretary. (4) In any case in which the administrative judge cannot issue a decision in accordance with the 180-day requirement under paragraph (1), the Merit Systems Protection Board shall, not later than 14 business days after the expiration of the 180-day period, submit to the Committee on Veterans’ Affairs of the Senate and the Committee on Veterans’ Affairs of the House of Representatives a report that explains the reasons why a decision was not issued in accordance with such requirement. (5) (A) A decision of the Merit Systems Protection Board under paragraph (3) may be appealed to the United States Court of Appeals for the Federal Circuit pursuant to [section 7703 of title 5](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section7703&num=0&edition=prelim) or to any court of appeals of competent jurisdiction pursuant to subsection (b)(1)(B) of such section. (B) Any decision by such Court shall be in compliance with [section 7462(f)(2) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title38-section7462/f/2&num=0&edition=prelim). (6) The Merit Systems Protection Board may not stay any removal or demotion under this section, except as provided in [section 1214(b) of title 5](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section1214/b&num=0&edition=prelim). (7) During the period beginning on the date on which a covered individual appeals a removal from the civil service under subsection (c) and ending on the date that the United States Court of Appeals for the Federal Circuit issues a final decision on such appeal, such covered individual may not receive any pay, awards, bonuses, incentives, allowances, differentials, student loan repayments, special payments, or benefits related to the employment of the individual by the Department. (8) To the maximum extent practicable, the Secretary shall provide to the Merit Systems Protection Board such information and assistance as may be necessary to ensure an appeal under this subsection is expedited. (9) If an employee prevails on appeal under this section, the employee shall be entitled to backpay (as provided in [section 5596 of title 5](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section5596&num=0&edition=prelim)). (10) If an employee who is subject to a collective bargaining agreement chooses to grieve an action taken under this section through a grievance procedure provided under the collective bargaining agreement, the timelines and procedures set forth in subsection (c) and this subsection shall apply. **(e) Whistleblower Protection.—** (1) In the case of a covered individual seeking corrective action (or on behalf of whom corrective action is sought) from the Office of Special Counsel based on an alleged prohibited personnel practice described in [section 2302(b) of title 5](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section2302/b&num=0&edition=prelim), the Secretary may not remove, demote, or suspend such covered individual under subsection (a) without the approval of the Special Counsel under [section 1214(f) of title 5](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section1214/f&num=0&edition=prelim). (2) In the case of a covered individual who has made a whistleblower disclosure to the Assistant Secretary for Accountability and Whistleblower Protection, the Secretary may not remove, demote, or suspend such covered individual under subsection (a) until— (A) in the case in which the Assistant Secretary determines to refer the whistleblower disclosure under [section 323(c)(1)(D) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title38-section323/c/1/D&num=0&edition=prelim) to an office or other investigative entity, a final decision with respect to the whistleblower disclosure has been made by such office or other investigative entity; or (B) in the case in which the Assistant Secretary determines not to refer the whistleblower disclosure under such section, the Assistant Secretary makes such determination. **(f) Termination of Investigations by Office of Special Counsel.—** (1) Notwithstanding any other provision of law, the Special Counsel (established by [section 1211 of title 5](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section1211&num=0&edition=prelim)) may terminate an investigation of a prohibited personnel practice alleged by an employee or former employee of the Department after the Special Counsel provides to the employee or former employee a written statement of the reasons for the termination of the investigation. (2) Such statement may not be admissible as evidence in any judicial or administrative proceeding without the consent of such employee or former employee. **(g) Vacancies.—** In the case of a covered individual who is removed or demoted under subsection (a), to the maximum extent feasible, the Secretary shall fill the vacancy arising as a result of such removal or demotion. **(h) Definitions.—** In this section: (1) The term “covered individual” means an individual occupying a position at the Department, but does not include— (A) an individual occupying a senior executive position (as defined in [section 713(d) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title38-section713/d&num=0&edition=prelim)); (B) an individual appointed pursuant to sections 7306, 7401(1), 7401(4), or 7405 of this title; (C) an individual who has not completed a probationary or trial period; or (D) a political appointee. (2) The term “suspend” means the placing of an employee, for disciplinary reasons, in a temporary status without duties and pay for a period in excess of 14 days. (3) The term “grade” has the meaning given such term in [section 7511(a) of title 5](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section7511/a&num=0&edition=prelim). (4) 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. (5) The term “political appointee” means an individual who is— (A) employed in a position described under sections 5312 through 5316 of title 5 (relating to the Executive Schedule); (B) a limited term appointee, limited emergency appointee, or noncareer appointee in the Senior Executive Service, as defined under paragraphs (5), (6), and (7), respectively, of [section 3132(a) of title 5](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section3132/a&num=0&edition=prelim); or (C) employed in a position of a confidential or policy-determining character under schedule C of subpart C of part 213 of title 5, Code of Federal Regulations, or successor regulation. (6) The term “whistleblower disclosure” has the meaning given such term in [section 323(g) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title38-section323/g&num=0&edition=prelim).

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Federal law — U.S. Code and appendices · legal_authorities

5 U.S.C. § 1211 — Establishment

**(a)** There is established the Office of Special Counsel, which shall be headed by the Special Counsel. The Office shall have an official seal which shall be judicially noticed. The Office shall have its principal office in the District of Columbia and shall have field offices in other appropriate locations. **(b)** The Special Counsel shall be appointed by the President, by and with the advice and consent of the Senate, for a term of 5 years. The Special Counsel may continue to serve beyond the expiration of the term until a successor is appointed and has qualified, except that the Special Counsel may not continue to serve for more than one year after the date on which the term of the Special Counsel would otherwise expire under this subsection. The Special Counsel shall be an attorney who, by demonstrated ability, background, training, or experience, is especially qualified to carry out the functions of the position. A Special Counsel appointed to fill a vacancy occurring before the end of a term of office of the Special Counsel’s predecessor serves for the remainder of the term. The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office. The Special Counsel may not hold another office or position in the Government of the United States, except as otherwise provided by law or at the direction of the President.

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Federal law — U.S. Code and appendices · legal_authorities

5 U.S.C. § 5596 — Back pay due to unjustified personnel action

**(a)** For the purpose of this section, “agency” means— (1) an Executive agency; (2) the Administrative Office of the United States Courts, the Federal Judicial Center, and the courts named by [section 610 of title 28](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section610&num=0&edition=prelim); (3) the Library of Congress; (4) the Government Publishing Office; (5) the government of the District of Columbia; (6) the Architect of the Capitol, including employees of the United States Senate Restaurants; and (7) the United States Botanic Garden. **(b)** (1) An employee of an agency who, on the basis of a timely appeal or an administrative determination (including a decision relating to an unfair labor practice or a grievance) is found by appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee— (A) is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect— (i) an amount equal to all or any part of the pay, allowances, or differentials, as applicable which the employee normally would have earned or received during the period if the personnel action had not occurred, less any amounts earned by the employee through other employment during that period; and (ii) reasonable attorney fees related to the personnel action which, with respect to any decision relating to an unfair labor practice or a grievance processed under a procedure negotiated in accordance with chapter 71 of this title, or under chapter 11 of title I of the Foreign Serv

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Federal law — U.S. Code and appendices · legal_authorities

5 U.S.C. § 7513 — Cause and procedure

**(a)** Under regulations prescribed by the Office of Personnel Management, an agency may take an action covered by this subchapter against an employee only for such cause as will promote the efficiency of the service. **(b)** An employee against whom an action is proposed is entitled to— (1) at least 30 days’ advance written notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action; (2) a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer; (3) be represented by an attorney or other representative; and (4) a written decision and the specific reasons therefor at the earliest practicable date. **(c)** An agency may provide, by regulation, for a hearing which may be in lieu of or in addition to the opportunity to answer provided under subsection (b)(2) of this section. **(d)** An employee against whom an action is taken under this section is entitled to appeal to the Merit Systems Protection Board under [section 7701 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section7701&num=0&edition=prelim). **(e)** Copies of the notice of proposed action, the answer of the employee when written, a summary thereof when made orally, the notice of decision and reasons therefor, and any order effecting an action covered by this subchapter, together with any supporting material, shall be maintained by the agency and shall be furnished to the Board upon its request and to the employee affected upon the employee’s request.

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Federal law — U.S. Code and appendices · legal_authorities

5 U.S.C. § 7703 — Judicial review of decisions of the Merit Systems Protection Board

**(a)** (1) Any employee or applicant for employment adversely affected or aggrieved by a final order or decision of the Merit Systems Protection Board may obtain judicial review of the order or decision. (2) The Board shall be named respondent in any proceeding brought pursuant to this subsection, unless the employee or applicant for employment seeks review of a final order or decision on the merits on the underlying personnel action or on a request for attorney fees, in which case the agency responsible for taking the personnel action shall be the respondent. **(b)** (1) (A) Except as provided in subparagraph (B) and paragraph (2) of this subsection, a petition to review a final order or final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit. Notwithstanding any other provision of law, any petition for review shall be filed within 60 days after the Board issues notice of the final order or decision of the Board. (B) A petition to review a final order or final decision of the Board that raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D) shall be filed in the United States Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. Notwithstanding any other provision of law, any petition for review shall be filed within 60 days after the Board issues notice of the final order or decision of the Board. (2) Cases of discrimination subject to the provisions of [section 7702 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section7702&num=0&edition=prelim) shall be filed under section

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Federal law — U.S. Code and appendices · legal_authorities

38 U.S.C. § 1914 — Statutory total disabilities

Without prejudice to any other cause of disability, the permanent loss of the use of both feet, of both hands, or of both eyes, or of one foot and one hand, or of one foot and one eye, or of one hand and one eye, or the total loss of hearing of both ears, or the organic loss of speech, shall be deemed total disability for insurance purposes.

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Federal law — U.S. Code and appendices · legal_authorities

5 U.S.C. § 2101 — Civil service; armed forces; uniformed services

For the purpose of this title— (1) the “civil service” consists of all appointive positions in the executive, judicial, and legislative branches of the Government of the United States, except positions in the uniformed services; (2) “armed forces” means the Army, Navy, Air Force, Marine Corps, Space Force, and Coast Guard; and (3) “uniformed services” means the armed forces, the commissioned corps of the Public Health Service, and the commissioned corps of the National Oceanic and Atmospheric Administration.

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Federal law — U.S. Code and appendices · legal_authorities

5 U.S.C. § 4303 — Actions based on unacceptable performance

**(a)** Subject to the provisions of this section, an agency may reduce in grade or remove an employee for unacceptable performance. **(b)** (1) An employee whose reduction in grade or removal is proposed under this section is entitled to— (A) 30 days’ advance written notice of the proposed action which identifies— (i) specific instances of unacceptable performance by the employee on which the proposed action is based; and (ii) the critical elements of the employee’s position involved in each instance of unacceptable performance; (B) be represented by an attorney or other representative; (C) a reasonable time to answer orally and in writing; and (D) a written decision which— (i) in the case of a reduction in grade or removal under this section, specifies the instances of unacceptable performance by the employee on which the reduction in grade or removal is based, and (ii) unless proposed by the head of the agency, has been concurred in by an employee who is in a higher position than the employee who proposed the action. (2) An agency may, under regulations prescribed by the head of such agency, extend the notice period under subsection (b)(1)(A) of this section for not more than 30 days. An agency may extend the notice period for more than 30 days only in accordance with regulations issued by the Office of Personnel Management. **(c)** The decision to retain, reduce in grade, or remove an employee— (1) shall be made within 30 days after the date of expiration of the notice period, and (2) in the case of a reduction in grade or removal, may be based only on those instances of unacceptable performance by the employee— (A) which occurred during the 1-year period ending on the date of the notice under subsection (b)(1)(A) of this sec

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Federal law — U.S. Code and appendices · legal_authorities

38 U.S.C. § 714 — Employees: removal, demotion, or suspen-

Page 119 TITLE 38—VETERANS’ BENEFITS § 714 Systems Protection Board of a process to conduct expe- dited reviews in accordance with former subsec. (d) of this section. TEMPORARY EXEMPTION FROM CERTAIN LIMITATION ON INITIATION OF REMOVAL FROM SENIOR EXECUTIVE SERVICE Pub. L. 113–146, title VII, § 707(c), Aug. 7, 2014, 128 Stat. 1800, provided for a 120-day exemption, starting on Aug. 7, 2014, from certain limitations on the initiation of removals from the Senior Executive Service. § 714. Employees: removal, demotion, or suspen- sion based on performance or misconduct (a) IN GENERAL.—(1) The Secretary may re- move, demote, or suspend a covered individual who is an employee of the Department if the Secretary determines the performance or mis- conduct of the covered individual warrants such removal, demotion, or suspension. (2) If the Secretary so removes, demotes, or suspends such a covered individual, the Sec- retary may— (A) remove the covered individual from the civil service (as defined in section 2101 of title 5); (B) demote the covered individual by means of a reduction in grade for which the covered individual is qualified, that the Secretary de- termines is appropriate, and that reduces the annual rate of pay of the covered individual; or (C) suspend the covered individual. (b) PAY OF CERTAIN DEMOTED INDIVIDUALS.—(1) Notwithstanding any other provision of law, any covered individual subject to a demotion under subsection (a)(2) shall, beginning on the date of such demotion, receive the annual rate of pay applicable to such grade. (2)(A) A covered individual so demoted may not be placed on administrative leave during the period during which an appeal (if any) under this section is ongoing, and may only receive pay if the covered indiv

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