U.S. Code » Title 38 » Part PART I— GENERAL PROVISIONS › Chapter CHAPTER 7— EMPLOYEES › Subchapter SUBCHAPTER I— GENERAL EMPLOYEE MATTERS

38 U.S.C. § 709

Employment restrictions

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(a)(1) Notwithstanding section 3134(d) of title 5, the number of Senior Executive Service positions in the Department which are filled by noncareer appointees in any fiscal year may not at any time exceed 5 percent of the average number of senior executives employed in Senior Executive Service positions in the Department during the preceding fiscal year.(2) For purposes of this subsection, the average number of senior executives employed in Senior Executive Service positions in the Department during a fiscal year shall be equal to 25 percent of the sum of the total number of senior executives employed in Senior Executive Service positions in the Department on the last day of each quarter of such fiscal year.(b) The number of positions in the Department which may be excepted from the competitive service, on a temporary or permanent basis, because of their confidential or policy-determining character may not at any time exceed the equivalent of 15 positions.(c)(1) Political affiliation or activity may not be taken into account in connection with the appointment of any person to any position in or to perform any service for the Department or in the assignment or advancement of any employee in the Department.(2) Paragraph (1) shall not apply—(A) to the appointment of any person by the President under this title, other than the appointment of the Under Secretary for Health, the Under Secretary for Benefits, and the Inspector General; or(B) to the appointment of any person to (i) a Senior Executive Service position as a noncareer appointee, or (ii) a position that is excepted from the competitive service, on a temporary or permanent basis, because of the confidential or policy-determining character of the position.(Added Pub. L. 102–83, § 2(a), Aug. 6, 1991, 105 Stat. 395; amended Pub. L. 102–405, title III, § 302(c)(1), Oct. 9, 1992, 106 Stat. 1984.)Editorial NotesPrior Provisions

Prior sections 709 and 710 were renumbered sections 1909 and 1910 of this title, respectively.

Provisions similar to those in this section were contained in section 12 of Pub. L. 100–527, known as the Department of Veterans Affairs Act, prior to repeal by Pub. L. 102–83, § 3(3).

Amendments

1992—Subsec. (c)(2)(A). Pub. L. 102–405 substituted “Under Secretary for Health” for “Chief Medical Director” and “Under Secretary for Benefits” for “Chief Benefits Director”.

Notes of Decisions
Cited in 6 cases (1 in the last 5 years), 1958–2024 · leading case: James R. Cook, Claimant-Appellant v. Anthony J. Principi, Sec'y of Vets. Affairs, 318 F.3d 1334 (Fed. Cir. 2003).
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James R. Cook, Claimant-Appellant v. Anthony J. Principi, Sec'y of Vets. Affairs, 318 F.3d 1334 (Fed. Cir. 2003). · cites it 2× “See 38 U.S.C. § 709 (1952). 14 In July of *1348 1989, Mr.”
Dinsay v. Brown, 9 Vet. App. 79 (Vet. App. 1996). “See 38 U.S.C. §§ 709 , 722, Vet. Reg. No. 2(a), part II (1946); 38 C.”
Saul L. Wellman v. Summer G. Whittier, Individually & as Adm'r of Vets.' Affairs, United States Vets. Admin., 259 F.2d 163 (D.C. Cir. 1958). “§§ 705 and 727] shall be filed with the Veterans’ Administration under such regulations, including provisions for hearing, determination, and administrative review, as the President may approve.”
Tracy v. Gleason, 379 F.2d 469 (D.C. Cir. 1967). “* * * ’ 38 U.S.C.A. § 709 .” . Of course, the Administrator’s action was not a “rejection of appellant’s compensation claim,” but a wrongful termination of death benefits theretofore properly awarded.”
United States Dep't of the Air Force v. Fed. Labor Relations Auth., 844 F.3d 957 (D.C. Cir. 2016). “2d at 1401 (quoting 38 U.S.C. § 709 (g)(2) (1988) (emphasis omitted)); see, e.”
Steven Samuelson v. Dep't of the Air Force (MSPB 2024). “Court of Appeals for the Federal Circuit issued a precedential decision holding that the Board lacks jurisdiction over an appeal of a dual-status military technician who was separated from his civilian position pursuant to 38 U.S.C. § 709 (f)(1) for failure to meet the military…”
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