38 U.S.C. § 712 — Untitled legal text

Page 118 TITLE 38—VETERANS’ BENEFITS [§ 712 Provisions similar to those in this section were con- tained in former section 210(b)(3) of this title prior to repeal by Pub. L. 102–83, § 2(a). AMENDMENTS 1996—Subsec. (d). Pub. L. 104–316 inserted ‘‘, upon re- quest of either of such Committees,’’ after ‘‘the Comp- troller General shall’’ in first sentence. 1994—Subsec. (d). Pub. L. 103–446 substituted ‘‘com- mittees’’ for ‘‘Committees’’. [§ 712. Repealed. Pub. L. 107–103, title V, § 509(a)(1), Dec. 27, 2001, 115 Stat. 997] Section, added Pub. L. 103–446, title XI, § 1102(a), Nov. 2, 1994, 108 Stat. 4680; amended Pub. L. 104–262, title III, § 303, Oct. 9, 1996, 110 Stat. 3194; Pub. L. 105–33, title VIII, § 8023(e), Aug. 5, 1997, 111 Stat. 667; Pub. L. 105–368, title X, § 1005(b)(1), Nov. 11, 1998, 112 Stat. 3364, limited reduction of full-time equivalent positions in the De- partment of Veterans Affairs during the period begin- ning on Nov. 2, 1994, and ending on Sept. 30, 1999. Editorial Notes PRIOR PROVISIONS A prior section 712 was renumbered section 1912 of this title. § 713. Senior executives: removal, demotion, or suspension based on performance or mis- conduct (a) AUTHORITY.—(1) The Secretary may, as pro- vided in this section, reprimand or suspend, in- voluntarily reassign, demote, or remove a cov- ered individual from a senior executive position at the Department if the Secretary determines that the misconduct or performance of the cov- ered individual warrants such action. (2) If the Secretary so removes such an indi- vidual, 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 in- dividual 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 pro- posed 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 Protec- tion, shall establish for purposes of this sub- section. (2)(A) The aggregate period for notice, re- sponse, and decision on an action under sub- section (a) may not exceed 15 business days. (B) The period for the response of a covered in- dividual 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 ac- tion 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 griev- ance 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 para- graph (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 para- graph (3), may obtain judicial review of such de- cision. (6) In any case in which judicial review is sought under paragraph (5), the court shall re- view the record and may set aside any Depart- ment action found to be— (A) arbitrary, capricious, an abuse of discre- tion, 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 de- fined in section 3132(a)(4) of title 5); or (B) any individual who occupies an admin- istrative 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 di- rected reassignment or to accompany a posi- tion 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 ap- pointed under section 7306(a) or section 7401(1) of this title, an administrative or ex- ecutive position. (Added Pub. L. 113–146, title VII, § 707(a)(1), Aug. 7, 2014, 128 Stat. 1798; amended Pub. L. 115–41, title II, § 201(a), June 23, 2017, 131 Stat. 868.) Editorial Notes PRIOR PROVISIONS A prior section 713 was renumbered section 1913 of this title. AMENDMENTS 2017—Pub. L. 115–41 amended section generally. Prior to amendment, section related to removal of senior ex- ecutives based on performance or misconduct. Statutory Notes and Related Subsidiaries CONSTRUCTION Pub. L. 113–146, title VII, § 707(d), Aug. 7, 2014, 128 Stat. 1801, provided a rule of construction related to ap- peal of a removal, transfer, or other personnel action that was pending before Aug. 7, 2014, and provided that the authority provided by former section 713 of this title would be in addition to the authority provided by section 3592 or subchapter V of chapter 75 of title 5. ESTABLISHMENT OF EXPEDITED REVIEW PROCESS Pub. L. 113–146, title VII, § 707(b), Aug. 7, 2014, 128 Stat. 1800, related to the establishment by the Merit