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

38 U.S.C. § 713

Senior executives: removal, demotion, or suspension based on performance or misconduct

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(a)Authority.—(1) The Secretary may, as provided in this section, reprimand or suspend, involuntarily reassign, demote, or remove a covered individual from a senior executive position at the Department if the Secretary determines that the misconduct or performance of the covered individual warrants such action.(2) If the Secretary so removes such an individual, the Secretary may remove the individual from the civil service (as defined in section 2101 of title 5).(b)Rights and Procedures.—(1) A covered individual who is the subject of 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 internal grievance process that the Secretary, in consultation with the Assistant Secretary for Accountability and Whistleblower Protection, shall establish for purposes of this subsection.(2)(A) The aggregate period for notice, response, and decision on an action under subsection (a) may not exceed 15 business days.(B) The period for the response of a covered individual to a notice under paragraph (1)(A) of an action under subsection (a) shall be 7 business days.(C) A decision under this paragraph on an action under subsection (a) shall be issued not later than 15 business days after notice of the action is provided to the covered individual under paragraph (1)(A). The decision shall be in writing, and shall include the specific reasons therefor.(3) The Secretary shall ensure that the grievance process established under paragraph (1)(C) takes fewer than 21 days.(4) A decision under paragraph (2) that is not grieved, and a grievance decision under paragraph (3), shall be final and conclusive.(5) A covered individual adversely affected by a decision under paragraph (2) that is not grieved, or by a grievance decision under paragraph (3), may obtain judicial review of such decision.(6) In any case in which judicial review is sought under paragraph (5), the court shall review the record and may set aside any Department action found to be—(A) arbitrary, capricious, an abuse of discretion, 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.(c)Relation to Other Provisions of Law.—Section 3592(b)(1) of title 5 and the procedures under section 7543(b) of such title do not apply to an action under subsection (a).(d)Definitions.—In this section:(1) The term “covered individual” means—(A) a career appointee (as that term is defined in section 3132(a)(4) of title 5); or(B) any individual who occupies an administrative or executive position and who was appointed under section 7306(a), section 7401(1), or section 7401(4) of this title.(2) 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.(3) The term “senior executive position” means—(A) with respect to a career appointee (as that term is defined in section 3132(a) of title 5), a Senior Executive Service position (as such term is defined in such section); and(B) with respect to a covered individual appointed under section 7306(a) or section 7401(1) of this title, an administrative or executive position.(Added Pub. L. 113–146, title VII, § 707(a)(1), Aug. 7, 2014, 128 Stat. 1798; amended Pub. L. 115–41, title II, § 201(a), June 23, 2017, 131 Stat. 868.)Editorial NotesPrior Provisions

A prior section 713 was renumbered section 1913 of this title.

Amendments

2017—Pub. L. 115–41 amended section generally. Prior to amendment, section related to removal of senior executives based on performance or misconduct.

Statutory Notes and Related SubsidiariesConstruction

Pub. L. 113–146, title VII, § 707(d), Aug. 7, 2014, 128 Stat. 1801, provided a rule of construction related to appeal of a removal, transfer, or other personnel action that was pending before Aug. 7, 2014, and provided that the authority provided by former section 713 of this title would be in addition to the authority provided by section 3592 or subchapter V of chapter 75 of title 5.

Establishment of Expedited Review Process

Pub. L. 113–146, title VII, § 707(b), Aug. 7, 2014, 128 Stat. 1800, related to the establishment by the Merit Systems Protection Board of a process to conduct expedited reviews in accordance with former subsec. (d) of this section.

Temporary Exemption From Certain Limitation on Initiation of Removal From Senior Executive Service

Pub. L. 113–146, title VII, § 707(c), Aug. 7, 2014, 128 Stat. 1800, provided for a 120-day exemption, starting on Aug. 7, 2014, from certain limitations on the initiation of removals from the Senior Executive Service.

Notes of Decisions
Cited in 11 cases (8 in the last 5 years), 2017–2025 · leading case: Helman v. Dep't of Vets. Affairs, 856 F.3d 920 (Fed. Cir. 2017).
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Helman v. Dep't of Vets. Affairs, 856 F.3d 920 (Fed. Cir. 2017). · cites it 22× “Helman from her position under 38 U.S.C. § 713 , and a MSPB administrative judge subsequently affirmed her removal.”
Trinka v. McDonough, No. 2021-2904 (D.D.C. Sept. 21, 2023). · cites it 23× “First, he claims that his termination violated the Due Process Clause of the Fifth Amendment because Defendants denied him access to certain evidence, an evidentiary hearing, and a meaningful opportunity to be heard; relied improperly on ex parte communications; applied an…”
Trinka v. McDonough, No. 2021-2904 (D.D.C. July 25, 2025). · cites it 13× “862, 38 U.S.C. § 713 ; and VA procedures as articulated in its Corporate Senior Executive Management Office Letter No.”
James Talton v. Dep't of Vets. Affairs, No. AT-0707-15-0094-J-1 (MSPB Feb. 10, 2023). · cites it 5× “at 868-69 (codified at 38 U.S.C. § 713 ). Under the new procedures, an SES employee could instead obtain only limited judicial review of the agency’s final decision.”
Linda Weiss v. Dep't of Vets. Affairs, No. NY-0707-16-0149-C-1 (MSPB June 15, 2022). · cites it 5× “¶3 The Choice Act, as codified at 38 U.S.C. § 713 (e) 3, provided for expedited and limited review by the Board of the agency’s action.”
Robert McLafferty v. Usdva, No. 22-35068 (9th Cir. Nov. 17, 2023). · cites it 4× “” 38 U.S.C. § 713 . The VA provided to Dr. McLafferty the VA’s complete evidence file in support of Dr.”
Sharon Helman v. Dep't of Vets. Affairs, No. DE-0707-15-0091-M-1 (MSPB June 27, 2023). · cites it 2× “Section 707 of the Choice Act, which was codified at 38 U.S.C. § 713 , authorized the Secretary of Veterans Affairs to remove senior executives “if the Secretary determines the performance or misconduct of the individual warrants such removal.”
Sayers v. DVA, No. 18-2195 (Fed. Cir. Mar. 31, 2020). “Before § 714’s passage in 2017, Congress passed a similar provision re- lated to the removal of Senior Executive Service officials, 38 U.S.C. § 713 . See Veterans Access, Choice, and Account- ability Act of 2014, Pub.”
Gore v. Wilkie, No. 2019-1134 (D.D.C. May 31, 2020). “862, codified at 38 U.S.C. § 713 et seq., by declining adequately to discipline Fleck for his alleged misconduct, including his false testimony regarding Gore’s actions.”
Maxim Kidalov v. Dep't of the Navy, No. SF-1221-16-0530-W-1 (MSPB Feb. 13, 2024). “2017) (finding that a provision concerning the finality of an administrative judge’s decision in an action taken under 38 U.S.C. § 713 violated the Appointments Clause and indicating that additional arguments about the separation of powers were moot)).”
David Carden v. Dep't of Vets. Affairs, No. AT-1221-23-0377-W-1 (MSPB Feb. 20, 2025). “On September 27, 2021, the agency proposed the appellant’s removal under 38 U.S.C. § 713 based on the charges of failure to lead people and failure to lead change.”
38 U.S.C. § 713(6)(C): 1 case
Trinka v. McDonough, No. 2021-2904 (D.D.C. Sept. 21, 2023). “First, he claims that his termination violated the Due Process Clause of the Fifth Amendment because Defendants denied him access to certain evidence, an evidentiary hearing, and a meaningful opportunity to be heard; relied improperly on ex parte communications; applied an…”
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