Public Service Reform Act

II 118TH CONGRESS 1ST SESSION S. 1496 To provide that all Federal employees in the executive branch of the Federal Government are at-will employees, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 9, 2023 Mr. SCOTT of Florida (for himself and Mr. SCHMITT) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To provide that all Federal employees in the executive branch of the Federal Government are at-will employees, 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 the ‘‘Public Service Reform 4 Act’’. 5 SEC. 2. AT-WILL EMPLOYMENT FOR FEDERAL EXECUTIVE 6 BRANCH EMPLOYEES. 7 (a) DEFINITIONS.—In this section— 8 VerDate Sep 11 2014 23:04 May 15, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1496.IS S1496 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1496 IS (1) the term ‘‘adverse personnel action’’ means, 1 with respect to an employee, a removal, a suspension 2 for more than 14 days, a reduction in grade, a re- 3 duction in pay, or a furlough of 30 days or less; 4 (2) the term ‘‘career employee’’ means any em- 5 ployee who is not a political appointee; 6 (3) the term ‘‘covered position’’ has the mean- 7 ing given the term in section 2302(a)(2)(B) of title 8 5, United States Code; 9 (4) the term ‘‘employee’’— 10 (A) has the meaning given the term in sec- 11 tion 2105 of title 5, United States Code; and 12 (B) includes— 13 (i) an officer or employee of the 14 United States Postal Service or the Postal 15 Regulatory Commission; and 16 (ii) notwithstanding subsection (b) of 17 section 7425 of title 38, United States 18 Code, any employee described in subsection 19 (a) of such section 7425; and 20 (5) the term ‘‘political appointee’’ means any 21 employee who— 22 (A) is appointed by the President; 23 VerDate Sep 11 2014 23:04 May 15, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1496.IS S1496 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1496 IS (B) is a noncareer appointee (as that term 1 is defined in section 3132(a)(7) of title 5, 2 United States Code); 3 (C) occupies a position under schedule C of 4 subpart C of part 213 of title 5, Code of Fed- 5 eral Regulations, or any successor regulations; 6 or 7 (D) occupies any other position in the civil 8 service (as that term is defined in section 2101 9 of title 5, United States Code) that is classified 10 as a political position after the date of enact- 11 ment of this Act under regulations prescribed 12 by the Director of the Office of Personnel Man- 13 agement. 14 (b) AT-WILL EMPLOYMENT.— 15 (1) IN GENERAL.—Notwithstanding any other 16 provision of law, rule, or regulation, and except as 17 provided in paragraph (2), any employee in the exec- 18 utive branch of the Federal Government— 19 (A) shall be considered at-will; 20 (B) may be subject to any adverse per- 21 sonnel action (up to and including removal) for 22 good cause, bad cause, or no cause at all; and 23 VerDate Sep 11 2014 23:04 May 15, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1496.IS S1496 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1496 IS (C) may not challenge or otherwise appeal 1 an action described in subparagraph (B), except 2 as provided in subsections (c) and (g). 3 (2) LIMITATION.—An employee may not be 4 subject to any adverse personnel action under this 5 Act for a reason that is prohibited under section 6 2302(b) of title 5, United States Code. 7 (3) PROCEDURES.— 8 (A) IN GENERAL.—The President shall es- 9 tablish procedures to enforce compliance with 10 paragraph (2). 11 (B) RULE OF CONSTRUCTION.—Nothing in 12 this paragraph may be construed to grant an 13 employee the right to review or appeal an ad- 14 verse personnel action outside of the procedures 15 described in subparagraph (A), subsection (g), 16 or subsection (h), as applicable. 17 (c) REMOVAL OF CAREER EMPLOYEES.—With re- 18 spect to the removal of a career employee, the following 19 procedures shall apply: 20 (1) Before the applicable agency removes the 21 career employee— 22 (A) the agency official authorized to pro- 23 pose such action (referred to in this subsection 24 as the ‘‘proposing official’’) shall provide the ca- 25 VerDate Sep 11 2014 23:04 May 15, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1496.IS S1496 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1496 IS reer employee with written notification of the 1 proposed removal and the reasons for the pro- 2 posed removal; and 3 (B) the career employee shall have 14 days 4 to provide a written response to the notification 5 received under subparagraph (A), except that 6 the head of the applicable agency shall have 7 sole and exclusive discretion to alter that re- 8 sponse period on a case-by-case basis. 9 (2) Under procedures prescribed by the applica- 10 ble agency head, in the sole and exclusive discretion 11 of the agency head, an agency official (who, except 12 when the proposing official is the agency head, shall 13 be an agency official other than the proposing offi- 14 cial) (referred to in this subsection as the ‘‘deciding 15 official’’)— 16 (A) shall review the proposed removal and 17 the response of the career employee under para- 18 graph (1); 19 (B) may, in the sole and exclusive discre- 20 tion of the deciding official, conduct a hearing 21 on the matter; and 22 (C) after the review conducted under sub- 23 paragraph (A), and any hearing conducted 24 VerDate Sep 11 2014 23:04 May 15, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1496.IS S1496 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1496 IS under subparagraph (B), shall decide whether 1 to remove or retain the career employee. 2 (3) The determination of a deciding official 3 under paragraph (2) shall be the final decision of 4 the applicable agency with respect to the career em- 5 ployee, unless, not later than 7 days after the date 6 on which the deciding official makes that determina- 7 tion, the agency head reverses the determination of 8 the deciding official, in which case the decision of 9 the agency head shall be the final agency decision. 10 (4) The final decision of an agency under para- 11 graph (3) shall be final and not subject to any ap- 12 peal or challenge, except that the President may 13 overrule that final decision of the agency in accord- 14 ance with such procedures or regulations as the 15 President may prescribe. 16 (d) APPLICATION.—Chapter 43 of title 5, United 17 States Code, shall not apply to any personnel action taken 18 with respect to an employee under this Act. 19 (e) ABOLISHMENT OF MSPB.— 20 (1) IN GENERAL.—Effective on the date of en- 21 actment of this Act, the Merit Systems Protection 22 Board (referred to in this subsection as the 23 ‘‘Board’’) is hereby abolished. 24 VerDate Sep 11 2014 23:04 May 15, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1496.IS S1496 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1496 IS (2) DISPOSAL OF ASSETS, OBLIGATIONS, AND 1 LIABILITIES.—The Chairman of the Board may take 2 such actions as are necessary to dispose of the as- 3 sets, obligations, and liabilities of the Board. 4 (f) TECHNICAL AND CONFORMING AMENDMENTS.— 5 (1) REPEAL.—The following provisions of title 6 5, United States Code, are hereby repealed: 7 (A) Subchapter I of chapter 12. 8 (B) Section 1212(c). 9 (C) With respect to section 1214, the fol- 10 lowing provisions: 11 (i) Subsection (b)(1). 12 (ii) Subparagraphs (B) through (D) 13 of subsection (b)(2). 14 (iii) Paragraphs (3) and (4) of sub- 15 section (b). 16 (iv) Subsections (c), (g), and (i). 17 (D) Sections 1215 and 1221. 18 (E) Section 4303. 19 (F) Chapter 75. 20 (G) Chapter 77. 21 (2) OTHER AMENDMENTS.—Chapter 71 of title 22 5, United States Code, is amended— 23 (A) in section 7103(a)(14)— 24 VerDate Sep 11 2014 23:04 May 15, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1496.IS S1496 kjohnson on DSK79L0C42PROD with BILLS 8 •S 1496 IS (i) by redesignating subparagraphs 1 (B) and (C) as subparagraphs (C) and 2 (D), respectively; and 3 (ii) by inserting after subparagraph 4 (A) the following: 5 ‘‘(B) relating to adverse personnel actions, 6 as provided by the Public Service Reform Act;’’; 7 and 8 (B) in section 7121(c), by amending para- 9 graph (3) to read as follows: 10 ‘‘(3) any adverse personnel action under the 11 Public Service Reform Act;’’. 12 (g) WHISTLEBLOWER PROTECTIONS.— 13 (1) IN GENERAL.—During the period described 14 in subsection (c)(1)(B), the Office of Special Counsel 15 may make a recommendation to the applicable agen- 16 cy head or deciding official (as described in sub- 17 section (c)(2)) regarding whether an adverse per- 18 sonnel action proposed against an individual was in 19 retaliation for making a disclosure described in sec- 20 tion 2302(b)(8) of title 5, United States Code. 21 (2) APPEAL.— 22 (A) IN GENERAL.—An individual in a cov- 23 ered position who is subject to an adverse per- 24 sonnel action and who claims that action was 25 VerDate Sep 11 2014 23:04 May 15, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1496.IS S1496 kjohnson on DSK79L0C42PROD with BILLS 9 •S 1496 IS taken for a reason prohibited under paragraph 1 (8) or (9) of section 2302(b) of title 5, United 2 States Code, may appeal that action to the 3 United States court of appeals in the circuit in 4 which the duty station of the individual is lo- 5 cated. 6 (B) DECISION.— 7 (i) FRIVOLOUS OR BAD FAITH AP- 8 PEAL.—If the court, in an appeal brought 9 by an individual under subparagraph (A), 10 finds that the appeal is brought in bad 11 faith or is frivolous, the annuity of the in- 12 dividual under chapter 83 or 84 of title 5, 13 United States Code, shall be reduced by 25 14 percent. 15 (ii) SUCCESSFUL APPEAL.—If an indi- 16 vidual prevails in an appeal brought under 17 subparagraph (A), the individual shall— 18 (I) be placed, as nearly as pos- 19 sible, in the position the individual 20 would have been in had the adverse 21 personnel action not been taken 22 against the individual; and 23 (II) be reimbursed for— 24 VerDate Sep 11 2014 23:04 May 15, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1496.IS S1496 kjohnson on DSK79L0C42PROD with BILLS 10 •S 1496 IS (aa) attorney fees, back pay, 1 and related benefits in accord- 2 ance with section 5596 of title 5, 3 United States Code; and 4 (bb) medical costs incurred, 5 travel expenses, any other rea- 6 sonable and foreseeable con- 7 sequential damages, and compen- 8 satory damages (including inter- 9 est, reasonable expert witness 10 fees, and costs). 11 (h) EEOC APPEALS.—Notwithstanding any other 12 provision of law, including section 717 of the Civil Rights 13 Act of 1964 (42 U.S.C. 2000e–16), an individual who is 14 an employee (or an applicant for a position as an em- 15 ployee) and who alleges that the individual was subject 16 to an adverse personnel action that is a prohibited per- 17 sonnel action described in section 2302(b)(1) of title 5, 18 United States Code, shall seek relief for that action from 19 the Equal Employment Opportunity Commission as if that 20 individual were an employee of an employer, as that term 21 is defined in section 701 of the Civil Rights Act of 1964 22 (42 U.S.C. 2000e). 23 Æ VerDate Sep 11 2014 23:04 May 15, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6301 E:\BILLS\S1496.IS S1496 kjohnson on DSK79L0C42PROD with BILLS