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 Secretary’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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