Appointments Clause Enforcement Act of 2020

I 116TH CONGRESS 2D SESSION H. R. 8481 To amend the provisions of title 5, United States Code, relating to the Federal Vacancies Reform Act of 1998, and for other purposes. IN THE HOUSE OF REPRESENTATIVES OCTOBER 1, 2020 Mr. COHEN introduced the following bill; which was referred to the Committee on Oversight and Reform A BILL To amend the provisions of title 5, United States Code, relating to the Federal Vacancies Reform Act of 1998, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as ‘‘Appointments Clause En- 4 forcement Act of 2020’’. 5 SEC. 2. MODIFICATIONS TO FEDERAL VACANCIES REFORM 6 ACT OF 1998. 7 (a) ACTING OFFICER.— 8 (1) FIRST ASSISTANTS.—Section 3345(a) of 9 title 5, United States Code, is amended— 10 VerDate Sep 11 2014 02:24 Nov 11, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H8481.IH H8481 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 8481 IH (A) in paragraph (1), by adding at the end 1 before the semi-colon the following: ‘‘, but only 2 if the individual serving in the position of first 3 assistant has occupied such position for the pe- 4 riod of 120 days immediately preceding the 5 date of the death, resignation, or beginning of 6 inability to serve (as the case may be)’’; and 7 (B) by adding at the end the following: 8 ‘‘(d)(1) For purposes of this section, beginning on the 9 date that is 180 days after the date of enactment of the 10 Appointments Clause Enforcement Act of 2020, a position 11 shall be considered to be the first assistant to the office 12 with respect to which a vacancy occurs only if such posi- 13 tion has been designated by law, rule, or regulation as the 14 first assistant position. 15 ‘‘(2) With respect to any office to which this section 16 and sections 3346, 3347, 3349, 3349a, 3349b, 3349c, and 17 3349d apply that is established after the date that is 180 18 days after the date of enactment of this subsection that 19 does not have a first assistant position designated by law, 20 the head of the Executive agency at which such office is 21 located shall designate a first assistant position not later 22 than the date that is 60 days after such date of establish- 23 ment.’’. 24 VerDate Sep 11 2014 02:24 Nov 11, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H8481.IH H8481 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 8481 IH (2) PRESIDENTIAL APPOINTMENTS.—Section 1 3345(a) of title 5, United States Code, as amended 2 by paragraph (1), is further amended— 3 (A) in paragraph (2), by striking ‘‘who 4 serves in an office’’ and inserting ‘‘who serves 5 in an office within the same agency at which 6 the vacancy occurs for the period of 120 days 7 immediately preceding the date on which such 8 vacancy occurs’’; and 9 (B) in paragraph (3), 10 (i) by striking ‘‘and’’ at the end of 11 subparagraph (A); and 12 (ii) by striking subparagraph (B) and 13 inserting the following: 14 ‘‘(B) the officer or employee occupies— 15 ‘‘(i) a career position described under 16 subparagraph (A) with a rate of pay equal 17 to or greater than the minimum rate of 18 pay payable for a position at GS–15 of the 19 General Schedule; or 20 ‘‘(ii) a position described under sub- 21 paragraph (A) that is a position in the 22 Senior Executive Service; and 23 ‘‘(C) possess the qualifications (if any) set 24 forth in law, rule, or regulation that are other- 25 VerDate Sep 11 2014 02:24 Nov 11, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H8481.IH H8481 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 8481 IH wise applicable to an individual appointed by 1 the President, by and with the advice and con- 2 sent of the Senate, to occupy such office.’’. 3 (3) IDENTIFICATION OF FIRST ASSISTANT POSI- 4 TION; DUTIES.—Section 3345 of title 5, United 5 States Code, as amended by paragraph (1), is fur- 6 ther amended by adding at the end the following: 7 ‘‘(e)(1) Not later than 180 days after the date of en- 8 actment of the Appointments Clause Enforcement Act of 9 2020, with respect to any office within such agency to 10 which this section and sections 3345, 3346, 3347, 3348, 11 3349a, 3349b, 3349c, and 3349d apply, the head of each 12 Executive agency shall issue regulations listing— 13 ‘‘(A) the first assistant position to such office; 14 and 15 ‘‘(B) the nondelegable duties of such office. 16 ‘‘(2) With respect to any office established after such 17 date of enactment to which this section and sections 3345, 18 3346, 3347, 3348, 3349a, 3349b, 3349c, and 3349d 19 apply, not later than 180 days after the date such office 20 is established, the head of the Executive agency at which 21 such office is located shall issue regulations containing the 22 information described under subparagraphs (A) and (B) 23 of paragraph (1). 24 VerDate Sep 11 2014 02:24 Nov 11, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H8481.IH H8481 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 8481 IH ‘‘(3) If the first assistant position or nondelegable du- 1 ties are modified by law with respect to an office for which 2 regulations have been issued under paragraph (1) or (2), 3 the head of the Executive agency at which such office is 4 located shall update the regulations not later than 180 5 days after the date that such modification takes effect.’’. 6 (4) VACANCY OF INSPECTOR GENERAL POSI- 7 TIONS.—Section 3345 of title 5, United States Code, 8 as amended by paragraph (3), is further amended by 9 adding at the end the following: 10 ‘‘(f)(1) Notwithstanding subsection (a), if an Inspec- 11 tor General position that requires appointment by the 12 President by and with the advice and consent of the Sen- 13 ate to be filled is vacant, the first assistant shall serve 14 as the acting Inspector General. 15 ‘‘(2) If the first assistant position is vacant, the first 16 assistant is unable or unavailable to serve as acting In- 17 spector General, or there is no first assistant position, the 18 acting Inspector General shall be appointed by chief judge 19 of United States District Court for the District of Colum- 20 bia pursuant to paragraph (3). 21 ‘‘(3) On the date an Inspector General position be- 22 comes vacant, the Chair of the Council of Inspectors Gen- 23 eral for Integrity and Efficiency shall convene a committee 24 of three Inspectors General to recommend, to the chief 25 VerDate Sep 11 2014 02:24 Nov 11, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H8481.IH H8481 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 8481 IH judge, at least two candidates to serve as acting Inspector 1 General. The committee shall submit its recommendation 2 to the chief judge within 14 days after such date, and the 3 chief judge shall make the appointment within 14 days 4 of receipt of the recommendations.’’. 5 (b) REASONS FOR VACANCY.—Title 5, United States 6 Code, is amended— 7 (1) in section 3345— 8 (A) in subsection (a), by inserting ‘‘sepa- 9 rates from the Federal service, placed on invol- 10 untary leave,’’ after ‘‘resigns,’’; and 11 (B) by inserting ‘‘separation from the Fed- 12 eral service, placement on involuntary leave,’’ 13 after ‘‘resignation,’’ in each instance; and 14 (2) in section 3348(b), by inserting ‘‘separates 15 from the Federal service, placed on involuntary 16 leave,’’ after ‘‘resigns,’’. 17 (c) TIME LIMITS.— 18 (1) IN GENERAL.—Section 3346(a) of title 5, 19 United States Code, is amended— 20 (A) by striking paragraph (1) and insert- 21 ing the following: 22 ‘‘(1) with respect to such person serving pursu- 23 ant to paragraph (1) of section 3345(a), for no 24 VerDate Sep 11 2014 02:24 Nov 11, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H8481.IH H8481 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 8481 IH longer than 120 days beginning on the date the va- 1 cancy occurs; 2 ‘‘(2) with respect to such person serving pursu- 3 ant to paragraph (2) or (3) of such section, for no 4 longer than 60 days beginning on the date the va- 5 cancy occurs; or’’. 6 (2) PRESIDENTIAL INAUGURAL TRANSITION.— 7 Section 3349a(b) of title 5, United States Code, is 8 amended— 9 (A) by striking ‘‘210-day period’’ and in- 10 serting ‘‘120-day or 60-day period (as the case 11 may be)’’; and 12 (B) by striking ‘‘90 days’’ in each instance 13 and inserting ‘‘60 days’’. 14 (3) CONFORMING AMENDMENTS.— 15 (A) Section 3346 of title 5, United States 16 Code, is amended— 17 (i) in subsection (b), by striking ‘‘210 18 days’’ in each instance and inserting ‘‘120 19 days or 60 days (as the case may be)’’; 20 and 21 (ii) in subsection (c), by striking 22 ‘‘210-day period’’ and inserting ‘‘120-day 23 or 60-day period (as the case may be)’’. 24 VerDate Sep 11 2014 02:24 Nov 11, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H8481.IH H8481 kjohnson on DSK79L0C42PROD with BILLS 8 •HR 8481 IH (B) Sections 3348(c) and 3349(b) of such 1 title is amended by striking ‘‘210-day period’’ 2 in each instance and inserting ‘‘120-day or 60- 3 day period (as the case may be)’’. 4 (d) PRIVATE RIGHT OF ACTION.—Section 3348(d) of 5 title 5, United States Code, is amended by inserting at 6 the end the following: 7 ‘‘(3) A person harmed by such an action may 8 bring an action in an appropriate district court of 9 the United States for declaratory and injunctive re- 10 lief, including the removal of such person from the 11 acting official position. Nothing in this paragraph 12 shall be construed to supersede or otherwise limit 13 any provision of law providing employment protec- 14 tions to such person, including the provisions of 15 chapter 75.’’. 16 (e) EXCLUSIVITY.—Section 3347 of title 5, United 17 States Code, is amended— 18 (1) by redesignating subsection (b) as sub- 19 section (c); and 20 (2) by inserting after subsection (a) the fol- 21 lowing: 22 ‘‘(b) Notwithstanding subsection (a), any statutory 23 provision covered under paragraph (1) of such subsection 24 that provides a mandatory order or directive to designate 25 VerDate Sep 11 2014 02:24 Nov 11, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H8481.IH H8481 kjohnson on DSK79L0C42PROD with BILLS 9 •HR 8481 IH an officer or employee to perform the functions and duties 1 of a specified office temporarily in an acting capacity shall 2 be the exclusive means for temporarily authorizing an act- 3 ing official to perform the functions and duties of such 4 office.’’. 5 (f) GAO REPORTS.—Section 3349 of title 5, United 6 States Code, is amended— 7 (1) in subsection (b), by striking paragraphs 8 (1) and (2) and inserting the following: 9 ‘‘(1) the Committee on Homeland Security and 10 Governmental Affairs of the Senate; 11 ‘‘(2) the Committee on Oversight and Reform 12 of the House of Representatives;’’; and 13 (2) by adding at the end the following: 14 ‘‘(c) The Comptroller General shall publish and main- 15 tain, on the public Internet website of the Government Ac- 16 countability Office, a database containing— 17 ‘‘(1) a list of each office to which this section 18 and sections 3345, 3346, 3347, 3348, 3349a, 19 3349b, and 3349c apply; and 20 ‘‘(2) with respect to any such office so listed— 21 ‘‘(A) the name of the individual occupying, 22 and the date the individual was appointed to, 23 the office; 24 VerDate Sep 11 2014 02:24 Nov 11, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H8481.IH H8481 kjohnson on DSK79L0C42PROD with BILLS 10 •HR 8481 IH ‘‘(B) if the office is vacant, the date the 1 vacancy commenced, the number of days of the 2 vacancy, and the name of the individual (if any) 3 nominated to serve in the office; 4 ‘‘(C) if the office is occupied by an acting 5 official, the name of the acting official, the date 6 on which the acting official first occupied the 7 office, and the number of days the acting offi- 8 cial has occupied the office; 9 ‘‘(D) the position designated as a first as- 10 sistant position under section 3345(d); 11 ‘‘(E) the name of the individual occupying, 12 and the date such individual was appointed to, 13 such first assistant position; and 14 ‘‘(F) a citation to the regulations issued 15 under section 3345(e), including a hyperlink (if 16 any) to such regulations.’’. 17 (g) COURT-APPOINTED OFFICIALS.— 18 (1) IN GENERAL.—Subchapter III of chapter 19 33 of title 5, United States Code, is amended by in- 20 serting after section 3349d the following: 21 ‘‘§ 3349e. Court-appointed officials removed by Presi- 22 dent 23 ‘‘If an officer of an Executive agency whose appoint- 24 ment to office was made by a court, including any indi- 25 VerDate Sep 11 2014 02:24 Nov 11, 2020 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H8481.IH H8481 kjohnson on DSK79L0C42PROD with BILLS 11 •HR 8481 IH vidual appointed under section 546(d) of title 28, is re- 1 moved from such office by the President, such court shall 2 have the sole authority to appoint an individual to carry 3 out the duties of such office until the vacancy is filled.’’. 4 (2) CLERICAL AMENDMENT.—The table of sec- 5 tions for such subchapter is amended by adding 6 after the item relating to section 3349d the fol- 7 lowing: 8 ‘‘3349e. Court-appointed officials removed by President.’’. (h) RULE OF CONSTRUCTION.—This Act and the 9 amendments made by this Act shall apply to any office 10 to which sections 3345, 3346, 3347, 3349, 3349a, 3349b, 11 3349c, and 3349d of title 5, United States Code, apply 12 established before, on, or after the date of enactment of 13 this Act. 14 (i) SEVERABILITY.—If any provision of this Act or 15 an amendment made by this Act, or the application of a 16 provision or amendment to any person or circumstance, 17 is held to be invalid for any reason in any court of com- 18 petent jurisdiction, the remainder of this Act and amend- 19 ments made by this Act, and the application of the provi- 20 sions and amendment to any other person or cir- 21 cumstance, shall not be affected. 22 Æ VerDate Sep 11 2014 02:24 Nov 11, 2020 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6301 E:\BILLS\H8481.IH H8481 kjohnson on DSK79L0C42PROD with BILLS