---
kind: "section"
citation: "38 U.S.C. § 714"
title: "38"
title_heading: "Veterans’ Benefits"
number: "714"
heading: "Employees: removal, demotion, or suspension based on performance or misconduct"
release: "119-102"
url: "https://uscodex.org/usc/38/714"
units:
  - "Part I — General Provisions"
  - "Chapter 7 — Employees"
  - "Subchapter I — General Employee Matters"
---

# §714. Employees: removal, demotion, or suspension based on performance or misconduct

- (a) **In General.—**
  - (1) The [Secretary](/usc/38/101.md?p=1) may remove, demote, or [suspend](#h-2) a [covered individual](#h-1) who is an [employee](/usc/38/4303.md?p=3) of the [Department](/usc/38/101.md?p=1) if the [Secretary](/usc/38/101.md?p=1) determines the performance or [misconduct](#h-4) of the [covered individual](#h-1) warrants such removal, demotion, or suspension.
  - (2) If the [Secretary](/usc/38/101.md?p=1) so removes, demotes, or [suspends](#h-2) such a [covered individual](#h-1), the [Secretary](/usc/38/101.md?p=1) may—
    - (A) remove the [covered individual](#h-1) from the civil service (as defined in [section 2101 of title 5](/usc/5/2101.md));
    - (B) demote the [covered individual](#h-1) by means of a reduction in [grade](#h-3) for which the [covered individual](#h-1) is qualified, that the [Secretary](/usc/38/101.md?p=1) determines is appropriate, and that reduces the annual rate of [pay](/usc/38/7297.md?p=a-3) of the [covered individual](#h-1); or
    - (C) [suspend](#h-2) the [covered individual](#h-1).
- (b) **Pay of Certain Demoted Individuals.—**
  - (1) Notwithstanding any other provision of law, any [covered individual](#h-1) subject to a demotion under [subsection (a)(2)](#a-2) shall, beginning on the date of such demotion, receive the annual rate of [pay](/usc/38/7297.md?p=a-3) applicable to such [grade](#h-3).
  - (2)
    - (A) A [covered individual](#h-1) 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](/usc/38/7297.md?p=a-3) if the [covered individual](#h-1) reports for duty or is approved to use accrued unused annual, sick, family medical, military, or court leave.
    - (B) If a [covered individual](#h-1) so demoted does not report for duty or receive approval to use accrued unused leave, such [covered individual](#h-1) shall not receive [pay](/usc/38/7297.md?p=a-3) or other benefits pursuant to [subsection (d)(5)](#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](#h-1) 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](/usc/5/7513.md) 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](/usc/38/101.md?p=1) 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](/usc/38/101.md?p=1) provides notice, including a file containing all the evidence in support of the proposed action, to the [covered individual](#h-1) 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](/usc/5/chptIII-sptC-ch43.md) of title 5 shall not apply to a removal, demotion, or suspension under this section.
  - (4)
    - (A) Subject to [subparagraph (B)](#c-4-B) and [subsection (d)](#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](/usc/38/7297.md?p=a-2) pursuant to [section 7701(b)(1) of title 5](/usc/5/7701.md?p=b-1).
    - (B) An appeal under [subparagraph (A)](#c-4-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)](#c-4-A), the administrative [judge](/usc/38/7297.md?p=a-2) shall expedite any such appeal under [section 7701(b)(1) of title 5](/usc/5/7701.md?p=b-1) 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](/usc/5/7701.md?p=c-1-B), the administrative [judge](/usc/38/7297.md?p=a-2) shall uphold the decision of the [Secretary](/usc/38/101.md?p=1) to remove, demote, or [suspend](#h-2) an [employee](/usc/38/4303.md?p=3) under [subsection (a)](#a) if the decision is supported by substantial evidence.
    - (B) Notwithstanding [title 5](/usc/5.md) or any other provision of law, if the decision of the [Secretary](/usc/38/101.md?p=1) is supported by substantial evidence, the administrative [judge](/usc/38/7297.md?p=a-2) shall not mitigate the penalty prescribed by the [Secretary](/usc/38/101.md?p=1).
  - (3)
    - (A) The decision of the administrative [judge](/usc/38/7297.md?p=a-2) under [paragraph (1)](#d-1) may be appealed to the Merit Systems Protection Board.
    - (B) Notwithstanding [section 7701(c)(1)(B) of title 5](/usc/5/7701.md?p=c-1-B), the Merit Systems Protection Board shall uphold the decision of the [Secretary](/usc/38/101.md?p=1) to remove, demote, or [suspend](#h-2) an [employee](/usc/38/4303.md?p=3) under [subsection (a)](#a) if the decision is supported by substantial evidence.
    - (C) Notwithstanding [title 5](/usc/5.md) or any other provision of law, if the decision of the [Secretary](/usc/38/101.md?p=1) is supported by substantial evidence, the Merit Systems Protection Board shall not mitigate the penalty prescribed by the [Secretary](/usc/38/101.md?p=1).
  - (4) In any case in which the administrative [judge](/usc/38/7297.md?p=a-2) cannot issue a decision in accordance with the 180-day requirement under [paragraph (1)](#d-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](/usc/38/101.md?p=2)’ Affairs of the Senate and the Committee on [Veterans](/usc/38/101.md?p=2)’ 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)](#d-3) may be appealed to the United States Court of Appeals for the Federal Circuit pursuant to [section 7703 of title 5](/usc/5/7703.md) or to any court of appeals of competent jurisdiction pursuant to [subsection (b)(1)(B)](/usc/38/7703.md) of such section.
    - (B) Any decision by such Court shall be in compliance with [section 7462(f)(2) of this title](/usc/38/7462.md?p=f-2).
  - (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](/usc/5/1214.md?p=b).
  - (7) During the period beginning on the date on which a [covered individual](#h-1) appeals a removal from the civil service under [subsection (c)](#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](#h-1) may not receive any [pay](/usc/38/7297.md?p=a-3), awards, bonuses, incentives, allowances, differentials, student loan repayments, special payments, or benefits related to the employment of the individual by the [Department](/usc/38/101.md?p=1).
  - (8) To the maximum extent practicable, the [Secretary](/usc/38/101.md?p=1) 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](/usc/38/4303.md?p=3) prevails on appeal under this section, the [employee](/usc/38/4303.md?p=3) shall be entitled to backpay (as provided in [section 5596 of title 5](/usc/5/5596.md)).
  - (10) If an [employee](/usc/38/4303.md?p=3) 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)](#c) and this subsection shall apply.
- (e) **Whistleblower Protection.—**
  - (1) In the case of a [covered individual](#h-1) 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](/usc/5/2302.md?p=b), the [Secretary](/usc/38/101.md?p=1) may not remove, demote, or [suspend](#h-2) such [covered individual](#h-1) under [subsection (a)](#a) without the approval of the Special Counsel under [section 1214(f) of title 5](/usc/5/1214.md?p=f).
  - (2) In the case of a [covered individual](#h-1) who has made a [whistleblower disclosure](#h-6) to the Assistant [Secretary](/usc/38/101.md?p=1) for Accountability and Whistleblower Protection, the [Secretary](/usc/38/101.md?p=1) may not remove, demote, or [suspend](#h-2) such [covered individual](#h-1) under [subsection (a)](#a) until—
    - (A) in the case in which the Assistant [Secretary](/usc/38/101.md?p=1) determines to refer the [whistleblower disclosure](#h-6) under [section 323(c)(1)(D) of this title](/usc/38/323.md?p=c-1-D) to an office or other investigative entity, a final decision with respect to the [whistleblower disclosure](#h-6) has been made by such office or other investigative entity; or
    - (B) in the case in which the Assistant [Secretary](/usc/38/101.md?p=1) determines not to refer the [whistleblower disclosure](#h-6) under such section, the Assistant [Secretary](/usc/38/101.md?p=1) 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](/usc/5/1211.md)) may terminate an investigation of a prohibited personnel practice alleged by an [employee](/usc/38/4303.md?p=3) or former [employee](/usc/38/4303.md?p=3) of the [Department](/usc/38/101.md?p=1) after the Special Counsel provides to the [employee](/usc/38/4303.md?p=3) or former [employee](/usc/38/4303.md?p=3) 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](/usc/38/4303.md?p=3) or former [employee](/usc/38/4303.md?p=3).
- (g) **Vacancies.—** In the case of a [covered individual](#h-1) who is removed or demoted under [subsection (a)](#a), to the maximum extent feasible, the [Secretary](/usc/38/101.md?p=1) 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](/usc/38/101.md?p=1), but does not include—
    - (A) an individual occupying a senior executive position (as defined in [section 713(d) of this title](/usc/38/713.md?p=d));
    - (B) an individual appointed pursuant to sections [7306](/usc/38/7306.md), [7401(1)](/usc/38/7401.md?p=1), [7401(4)](/usc/38/7401.md?p=4), or [7405](/usc/38/7405.md) of this title;
    - (C) an individual who has not completed a probationary or trial period; or
    - (D) a [political appointee](#h-5).
  - (2) The term “suspend” means the placing of an [employee](/usc/38/4303.md?p=3), for disciplinary reasons, in a temporary status without duties and [pay](/usc/38/7297.md?p=a-3) 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](/usc/5/7511.md?p=a).
  - (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](/usc/5/5312..5316.md) 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)](#h-5), [(6)](#h-6), and (7), respectively, of [section 3132(a) of title 5](/usc/5/3132.md?p=a); 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](/cfr/5/part213-subpartC.md), or successor regulation.
  - (6) The term “whistleblower disclosure” has the meaning given such term in [section 323(g) of this title](/usc/38/323.md?p=g).

## Source credit

(Added Pub. L. 115–41, title II, § 202(a), June 23, 2017, 131 Stat. 869; amended Pub. L. 116–61, § 6(1), Sept. 30, 2019, 133 Stat. 1116.)

## Notes

### Editorial Notes

### Prior Provisions

A prior section 714 was renumbered section 1914 of this title.

### Amendments

2019—Subsec. (e)(2)(B). Pub. L. 116–61 substituted “to refer” for “to the refer”.