‘‘(ii) The covered individual’s job level and 
type of employment, including supervisory or fi-
duciary role, and prominence of the position. 
‘‘(B) The Secretary shall review the initial decision 
and uphold such decision if it is supported by substantial 
evidence. 
‘‘(2) A covered individual subject to 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 in-
ternal grievance process that the Secretary, in con-
sultation with the Assistant Secretary for Account-
ability and Whistleblower Protection, shall establish 
for purposes of this subsection. 
‘‘(3) A final decision by the Secretary under para-
graph (1)(B) that is not grieved, and a grievance decision 
under paragraph (2)(C), shall be final and conclusive. 
‘‘(4) The procedures under chapter 43 of title 5 shall 
not apply to a removal, demotion, or suspension under this 
section, and the Secretary may carry out such a removal, 
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demotion, or suspension without first placing a covered in-
dividual on a performance improvement plan. 
‘‘(c) TIMING.—(1)(A) The aggregate period for no-
tice, response, and final decision by the Secretary of an 
action under this section may not exceed 15 business days. 
‘‘(B) The period for the response of a covered indi-
vidual to a notice under subsection (b)(2)(A) shall be 7 
business days. 
‘‘(C) The final decision by the Secretary under sub-
section (b)(1)(B) shall— 
‘‘(i) be issued not later than 15 business days 
after notice is provided under subsection (b)(2)(A); 
and 
‘‘(ii) be in writing and shall include the specific 
reasons for the decision. 
‘‘(D) The Secretary shall ensure that the grievance 
process established under paragraph (2)(C) takes fewer 
than 21 days after the final decision. 
‘‘(d) JUDICIAL REVIEW.—(1) A covered individual 
adversely affected by a final decision under this section 
that is not grieved, or by a grievance decision under sub-
section (b)(2)(C), may obtain judicial review of such deci-
sion. 
‘‘(2) Any removal, demotion, or suspension under this 
section is not appealable to the Merit Systems Protection 
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Board, or to any administrative judge or other person ap-
pointed by the Merit Systems Protection Board. 
‘‘(3) In any case in which judicial review is sought 
under paragraph (1), the court shall review the record and 
may set aside any Department 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. 
‘‘(4) Except to the extent that an appeal under this 
subsection presents a constitutional issue, such court may 
not review a challenge to the penalty imposed against the 
covered individual or mitigate such penalty. 
‘‘(e) DEMOTED INDIVIDUALS.—(1) A demotion under 
subsection (a) shall be carried out as a reduction in grade 
for which the covered individual is qualified, that the Sec-
retary determines is appropriate, and that reduces the an-
nual rate of pay of the covered individual. 
‘‘(2) Notwithstanding any other provision of law, any 
covered individual so demoted— 
‘‘(A) shall, beginning on the date of such demo-
tion, receive the annual rate of pay applicable to 
such grade; 
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‘‘(B) 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; and 
‘‘(C) who does not report for duty or receive ap-
proval to use accrued unused leave shall not receive 
pay or other benefits. 
‘‘(f) 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, 
the Secretary may not remove, demote, or suspend such 
covered individual under subsection (a) without the ap-
proval of the Special Counsel under section 1214(f) of title 
5. 
‘‘(2) In the case of a covered individual who has made 
a whistleblower disclosure to the Assistant Secretary for 
Accountability and Whistleblower Protection, the Sec-
retary may not remove, demote, or suspend such covered 
individual under subsection (a) until— 
‘‘(A) in the case in which the Assistant Sec-
retary determines to refer the whistleblower disclo-
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sure under section 323(c)(1)(D) of this title 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 Sec-
retary determines not to refer the whistleblower dis-
closure under such section, the Assistant Secretary 
makes such determination. 
‘‘(g) TERMINATION OF INVESTIGATIONS BY OFFICE 
OF SPECIAL COUNSEL.—(1) Notwithstanding any other 
provision of law, the Special Counsel (established by sec-
tion 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. 
‘‘(2) Such statement may not be admissible as evi-
dence in any judicial or administrative proceeding without 
the consent of such employee or former employee. 
‘‘(h) APPLICATION.—This section shall apply to any 
performance or misconduct of a covered individual begin-
ning on the date of enactment of the Department of Vet-
erans Affairs Accountability and Whistleblower Protection 
Act of 2017 (Public Law 115–41). 
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‘‘(i) DEFINITIONS.—In this section: 
‘‘(1) The term ‘civil service’ has the meaning 
given that term in section 2101 of title 5. 
‘‘(2) The term ‘covered individual’ means an 
employee of the Department who is a supervisor or 
management official as defined in section 7103(a) of 
title 5 occupying a position at the Department, in-
cluding individuals appointed pursuant to this title, 
title 5, and hybrid employees appointed pursuant to 
section 7401 of this title, but does not include— 
‘‘(A) an individual occupying a senior exec-
utive position (as defined in section 713(d) of 
this title); 
‘‘(B) an individual appointed pursuant to 
section 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. 
‘‘(3) The term ‘grade’ has the meaning given 
such term in section 7511(a) of title 5. 
‘‘(4) The term ‘misconduct’ includes neglect of 
duty, malfeasance, or failure to accept a directed re-
assignment or to accompany a position in a transfer 
of function. 
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‘‘(5) The term ‘political appointee’ means an in-
dividual 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; or 
‘‘(C) employed in a position of a confiden-
tial or policy-determining character under 
schedule C of subpart C of part 213 of title 5, 
Code of Federal Regulations, or successor regu-
lation. 
‘‘(6) 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. 
‘‘(7) The term ‘whistleblower disclosure’ has the 
meaning given such term in section 323(g) of this 
title.’’. 
(2) CLERICAL AMENDMENT.—The table of con-
tents for title 38, United States Code, is amended 
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by inserting after the item relating to section 711 
the following: 
‘‘712. Supervisors: removal, demotion, or suspension based on performance or 
misconduct.’’. 
SEC. 3. SENIOR EXECUTIVES: MODIFICATION OF PROCE-
DURES TO REMOVE, DEMOTE, OR SUSPEND 
BASED ON PERFORMANCE OR MISCONDUCT. 
Section 713 of title 38, United States Code, is 
amended— 
(1) in subsection (a)— 
(A) after ‘‘determines’’, insert ‘‘by sub-
stantial evidence’’; and 
(B) by adding at the end the following: 
‘‘(3) When making an initial decision under this sub-
section with respect to determining whether a covered in-
dividual should be reprimanded or suspended, involun-
tarily reassigned, demoted, or removed, the deciding em-
ployee of the Department shall exclusively apply the fol-
lowing factors: 
‘‘(A) The nature and seriousness of the offense, 
and its relation to the covered individual’s duties, 
position, and responsibilities, including whether the 
offense was intentional or technical or inadvertent, 
or was committed maliciously or for gain, or was fre-
quently repeated. 
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‘‘(B) The covered individual’s job level and type 
of employment, including supervisory or fiduciary 
role, and prominence of the position. 
‘‘(4) The Secretary shall review the initial decision 
and uphold such decision if it is supported by substantial 
evidence.’’; 
(2) in subsection (b)— 
(A) in paragraph (3), by inserting ‘‘after 
the final decision’’ after ‘‘21 days’’; and 
(B) by adding at the end the following: 
‘‘(7) Except to the extent that an appeal under this 
subsection presents a constitutional issue, such court may 
not review a challenge to the penalty imposed against the 
covered individual or mitigate such penalty.’’; and 
(3) insert after subsection (c) the following 
(and redesignate subsection (d) as subsection (e)): 
‘‘(d) APPLICATION.—This section shall apply to any 
misconduct or performance of a covered individual begin-
ning on the date of enactment of the Department of Vet-
erans Affairs Accountability and Whistleblower Protection 
Act of 2017 (Public Law 115–41).’’. 
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SEC. 4. MODIFICATION OF DISCIPLINARY PROCEDURES 
FOR EMPLOYEES OF THE DEPARTMENT OF 
VETERANS AFFAIRS. 
(a) DEPARTMENT
OF
VETERANS
AFFAIRS
EM-
PLOYEE DISCIPLINE MODIFICATIONS.—Section 714 of 
title 38, United States Code, is amended— 
(1) in subsection (a), 
(A) in paragraph (1), by inserting ‘‘by sub-
stantial evidence’’ after ‘‘the Secretary deter-
mines’’; and 
(B) by adding at the end the following: 
‘‘(3)(A) When making an initial decision under this 
subsection with respect to determining whether a covered 
individual should be removed, demoted, or suspended, the 
deciding employee of the Department shall exclusively 
apply the following factors: 
‘‘(i) The nature and seriousness of the offense, 
and its relation to the covered individual’s duties, 
position, and responsibilities, including whether the 
offense was intentional or technical or inadvertent, 
or was committed maliciously or for gain, or was fre-
quently repeated. 
‘‘(ii) The covered individual’s job level and type 
of employment, including supervisory or fiduciary 
role, and prominence of the position. 
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‘‘(iii) The covered individual’s past disciplinary 
record. 
‘‘(iv) The covered individual’s past work record, 
including length of service, performance on the job, 
ability to get along with fellow workers, and depend-
ability. 
‘‘(v) Mitigating circumstances surrounding the 
offense such as unusual job tensions, personality 
problems, mental impairment, harassment, or bad 
faith, malice, or provocation on the part of others in-
volved in the matter. 
‘‘(B) The Secretary shall review the initial decision 
and uphold such decision if it is supported by substantial 
evidence.’’. 
(2) in subsection (c)— 
(A) by striking paragraph (1)(D); and 
(B) in paragraph (3), by inserting before 
the period the following: ‘‘, and the Secretary 
may carry out such a removal, demotion, or 
suspension without first placing a covered indi-
vidual on a performance improvement plan’’; 
(3) in subsection (d)— 
(A) in paragraph (2), by adding at the end 
the following: 
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‘‘(C) Except to the extent that an appeal under this 
subsection presents a constitutional issue, the administra-
tive judge may not review a challenge to the penalty im-
posed against the covered individual.’’; 
(B) in paragraph (3), by adding at the end 
the following: 
‘‘(D) Except to the extent that an appeal under this 
subsection presents a constitutional issue, the Merit Sys-
tems Protection Board may not review a challenge to the 
penalty imposed against the covered individual.’’; 
(C) in paragraph (5), by adding at the end 
the following: 
‘‘(C) Except to the extent that an appeal under this 
subsection presents a constitutional issue, such Court may 
not review a challenge to the penalty imposed against the 
covered individual or mitigate such penalty.’’; and 
(D) by striking paragraph (10); 
(4) by redesignating subsection (h) as sub-
section (j); 
(5) by inserting after subsection (g) the fol-
lowing: 
‘‘(h) COLLECTIVE BARGAINING AGREEMENTS.—The 
procedures in this section shall supersede any collective 
bargaining agreement to the extent that such agreement 
is inconsistent with such procedures. 
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‘‘(i) APPLICATION.—This section shall apply to any 
performance or misconduct of a covered individual begin-
ning on the date of enactment of the Department of Vet-
erans Affairs Accountability and Whistleblower Protection 
Act of 2017 (Public Law 115–41).’’; and 
(6) in paragraph (1) of subsection (j), as redes-
ignated by paragraph (4)— 
(A) by inserting ‘‘including individuals ap-
pointed pursuant to this title, title 5, and hy-
brid employees appointed pursuant to section 
7401 of this title’’ after ‘‘Department’’; 
(B) in subparagraph (D), by striking the 
period and inserting ‘‘; or’’; and 
(C) by adding after subparagraph (D) the 
following: 
‘‘(E) a supervisor or management official 
as defined in section 7103(a) of title 5.’’. 
(b) VHA EMPLOYEE DISCIPLINE MODIFICATIONS.— 
Section 7403(f)(3) of such title is amended— 
(1) by striking ‘‘Notwithstanding any other pro-
vision of this title or other law,’’ and inserting ‘‘(A) 
Notwithstanding any other provision of this title or 
other law, and consistent with subparagraph (B),’’; 
and 
(2) by adding at the end the following: 
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‘‘(B) With respect to any covered individual (as that 
term is defined in section 712 or 714) appointed to such 
positions, such matters shall be resolved, at the Sec-
retary’s sole discretion, under— 
‘‘(i) section 712; 
‘‘(ii) section 714; or 
‘‘(iii) title 5 as though such individuals had 
been appointed under that title.’’. 
Æ 
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