Sec. 3. Removal or demotion of employees based on performance or misconduct
1,279 words·~6 min read·
/bill/115/hr/611/ih/section-3A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Chapter 7 is amended— by redesignating section 715 as section 725; and by inserting after section 713 the following new section 715: The Secretary may remove or demote an individual who is an employee of the Department if the Secretary determines the performance or misconduct of the individual warrants such removal or demotion. If the Secretary so removes or demotes such an individual, the Secretary may— remove the individual from the civil service (as defined in section 2101 of title 5); or demote the individual by means of— a reduction in grade for which the individual is qualified and that the Secretary determines is appropriate; or a reduction in annual rate of pay that the Secretary determines is appropriate.
Notwithstanding any other provision of law, any individual subject to a demotion by a reduction in grade under subsection (a)(2)(A) shall, beginning on the date of such demotion, receive the annual rate of pay applicable to such grade. An individual demoted as described in paragraph
(1)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 demoted does not report for duty, such individual shall not receive any pay, awards, bonuses, incentives, allowances, differentials, student loan repayments, special payments, or benefits from the Department. Not later than 30 days after removing or demoting an individual under subsection (a), the Secretary shall submit to the Committee on Veterans' Affairs of the Senate and the Committee on Veterans' Affairs of the House of Representatives notice in writing of such removal or demotion and the reason for such removal or demotion. Subsection
(b)of section 7513 of title 5 shall apply with respect to a removal or demotion under this section, except that the period for notice and response, which includes the advance notice period required by paragraph
(1)of such subsection and the response period required by paragraph
(2)of such subsection, shall not exceed a total of ten calendar days. The procedures under chapter 43 of title 5 shall not apply to a removal or demotion under this section. Subject to subparagraph
(B)and subsection (e), any removal or demotion under subsection
(a)may be appealed to the Merit Systems Protection Board under section 7701 of title 5. An appeal under subparagraph
(A)of a removal or demotion may only be made if such appeal is made not later than seven days after the date of such removal or demotion. Upon receipt of an appeal under subsection (d)(3)(A), the Merit Systems Protection Board shall expedite any such appeal under such section and, in any such case, shall issue a decision not later than 60 days after the date of the appeal. Notwithstanding section 7701(c)(1)(B) of title 5, the Merit Systems Protection Board shall uphold the decision of the Secretary to remove or demote an employee under subsection
(a)if the decision is supported by substantial evidence. The decision of the Merit Systems Protection Board under paragraph (1), and any final removal or demotion described in paragraph (4), may be appealed to the United States Court of Appeals for the Federal Circuit pursuant to section 7703 of title 5. Any decision by such Court shall be in compliance with section 7462(f)(2) of this title. In any case in which the Merit Systems Protection Board cannot issue a decision in accordance with the 60-day requirement under paragraph (1), the removal or demotion is final. In such a case, the Merit Systems Protection Board shall, within 14 days after the date that such removal or demotion is final, submit to Congress and 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. The Merit Systems Protection Board may not stay any removal or demotion under this section. 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 Merit Systems Protection Board 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 from the Department. 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. In the case of an 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, the Secretary may not remove or demote such individual under subsection
(a)without the approval of the Special Counsel under section 1214(f) of title 5. In the case of an individual who has filed a whistleblower complaint, as such term is defined in section 731 of this title, the Secretary may not remove or demote such individual under subsection
(a)until a final decision with respect to the whistleblower complaint has been made. Notwithstanding any other provision of law, the Special Counsel (established by section 1211 of title 5) 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. Such statement may not be admissible as evidence in any judicial or administrative proceeding without the consent of such employee or former employee. The authority provided by this section is in addition to the authority provided by subchapter V of chapter 74 of this title, subchapter II of chapter 75 of title 5, chapter 43 of such title, and any other authority with respect to disciplining an individual. In this section: The term individual means an individual occupying a position at the Department but does not include— an individual, as that term is defined in section 713(g); or a political appointee. The term grade has the meaning given that term in section 7511(a) of title 5. 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. The term political appointee means an individual who is— employed in a position described under sections 5312 through 5316 of title 5 (relating to the Executive Schedule); 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; or employed in a position of a confidential or policy-determining character under schedule C of subpart C of part 213 of title 5 of the Code of Federal Regulations (or any successor regulation). . The table of sections at the beginning of chapter 7 is amended— by striking the item relating to section 715 and inserting the following new item: 715. Employees: removal or demotion based on performance or misconduct. ; and by inserting after the item relating to section 715 the following new item: 725. Congressional testimony by employees: treatment as official duty. . Section 4303(f) of title 5, United States Code, is amended— by striking or at the end of paragraph (2); by striking the period at the end of paragraph
(3)and inserting , or ; and by adding at the end the following: any removal or demotion under section 715 of title 38. .