II 

115TH CONGRESS 

2D SESSION S. 2581 

To amend title 5, United States Code, to provide for a 2-year prohibition 

on employment in a career civil service position for any former political 

appointee, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 21, 2018 

Mrs. ERNST introduced the following bill; which was read twice and referred 

to the Committee on Homeland Security and Governmental Affairs 

A BILL 

To amend title 5, United States Code, to provide for a 

2-year prohibition on employment in a career civil service 

position for any former political appointee, and for other 

purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Political Appointee 

5 Burrowing Prevention Act’’. 


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1 SEC. 2. LIMITATION ON EMPLOYMENT OF POLITICAL AP2 POINTEES IN CAREER CIVIL SERVICE POSI3 TIONS. 

4 (a) IN GENERAL.—Subchapter I of chapter 31 of title 

5 5, United States Code, is amended by adding at the end 

6 the following: 

7 ‘‘§ 3115. Employment of political appointees 

8 ‘‘(a) APPOINTMENT APPROVAL REQUIRED.— 

9 ‘‘(1) IN GENERAL.—The head of an agency may 

10 not appoint any individual described in paragraph 

11 (5) to a career position within the agency without 

12 receiving prior written approval from the Associate 

13 Director for Merit Systems Accountability and Com14 pliance, consistent with the requirements of this sub15 section. 

16 ‘‘(2) REQUEST.—The head of an agency shall 

17 submit a request to the Associate Director to ap18 prove the appointment of any individual described in 

19 paragraph (5) to a career position. Any such request 

20 shall include certification by the head of the agency 

21 to the Associate Director that the appointment is 

22 necessary for the agency to meet its mission. 

23 ‘‘(3) REVIEW AND DETERMINATION.—The As24 sociate Director shall review any request received 

25 pursuant to paragraph (2) and deny any such re26 quest unless the Associate Director determines that 


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1 the appointment process with respect to the request 

2 was fair, open, and free from political influence. If 

3 the Associate Director makes that determination, 

4 the Associate Director may approve the request. 

5 ‘‘(4) NOTIFICATION TO CONGRESS.—With re6 spect to any request approved under paragraph (3), 

7 the Associate Director shall, not less than five days 

8 before the date the Associate Director provides ap9 proval to the head of the requesting agency, provide 

10 to the Committee on Oversight and Government Re11 form of the House of Representatives and the Com12 mittee on Homeland Security and Governmental Af13 fairs of the Senate the agency certification under 

14 paragraph (2) and the agency head’s rationale for 

15 that certification. 

16 ‘‘(5) COVERED INDIVIDUALS.—An individual 

17 described in this paragraph is— 

18 ‘‘(A) a political appointee; 

19 ‘‘(B) a former political appointee who held 

20 any political position during the five-year period 

21 before the date of the request described in para22 graph (2); or 

23 ‘‘(C) at the discretion of the Director of 

24 the Office of Personnel Management, a former 

25 political appointee who held any political posiVerDate Sep 11 2014 03:48 Mar 28, 2018 Jkt 079200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2581.IS S2581

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1 tion before the five-year period described in 

2 subparagraph (B). 

3 ‘‘(b) RESTRICTION ON APPOINTMENT.— 

4 ‘‘(1) IN GENERAL.—Notwithstanding any other 

5 law, rule, or regulation, during the 2-year period fol6 lowing the date a political appointee leaves or de7 parts from a political position, such appointee may 

8 not be appointed to any career position in the civil 

9 service. 

10 ‘‘(2) EXCEPTION.—Paragraph (1) shall not 

11 apply to a political appointee who has not personally 

12 and substantially participated in any particular mat13 ter while employed in a political position. 

14 ‘‘(c) APPLICATION.—Nothing in this section shall be 

15 construed to restrict the appointment of an individual who 

16 is— 

17 ‘‘(1) entitled to reinstatement under section 

18 3593(b); or 

19 ‘‘(2) eligible for reinstatement under section 

20 3593(a). 

21 ‘‘(d) DEFINITIONS.—In this section— 

22 ‘‘(1) the term ‘agency’ has the meaning given 

23 the term ‘Executive agency’ in section 105; 

24 ‘‘(2) the term ‘Associate Director’ means the 

25 Associate Director for Merit Systems Accountability 


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1 and Compliance at the Office of Personnel Manage2 ment; 

3 ‘‘(3) the term ‘political appointee’ means an in4 dividual serving in an appointment of any duration 

5 to a political position; 

6 ‘‘(4) the term ‘political position’ means— 

7 ‘‘(A) a position with respect to which ap8 pointment is made— 

9 ‘‘(i) by the President; or 

10 ‘‘(ii) by the President, by and with the 

11 advice and consent of the Senate; 

12 ‘‘(B) a position which has been excepted 

13 from the competitive service by reason of its 

14 confidential, policy-determining, policy-making, 

15 or policy-advocating character; 

16 ‘‘(C) a position described under sections 

17 5312 through 5316 (relating to the Executive 

18 Schedule); and 

19 ‘‘(D) a general position in the Senior Exec20 utive Service during such time as it is filled 

21 by— 

22 ‘‘(i) a noncareer appointee, as defined 

23 in paragraph (7) of section 3132(a); or 

24 ‘‘(ii) a limited term appointee or lim25 ited emergency appointee, as defined in 


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1 paragraphs (5) and (6) of section 3132(a), 

2 who is serving under a political appoint3 ment; 

4 ‘‘(5) the term ‘career position’ means— 

5 ‘‘(A) a position in the competitive service 

6 filled by career or career-conditional appoint7 ment; 

8 ‘‘(B) a position in the excepted service 

9 filled by an appointment of equivalent tenure as 

10 a position described in subparagraph (A); 

11 ‘‘(C) a career reserved position, as defined 

12 in paragraph (8) of section 3132(a), in the Sen13 ior Executive Service; or 

14 ‘‘(D) a general position in the Senior Exec15 utive Service when filled by a career appointee, 

16 as defined in section 3132(a)(4); 

17 ‘‘(6) the term ‘participated’ means an action 

18 taken as an officer or employee through decision, ap19 proval, disapproval, recommendation, the rendering 

20 of advice, investigation, or other such action; and 

21 ‘‘(7) the term ‘particular matter’ includes any 

22 investigation, application, request for a ruling or de23 termination, rulemaking, contract, controversy, 

24 claim, charge, accusation, arrest, or judicial or other 

25 proceeding.’’. 


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1 (b) CLERICAL AMENDMENT.—The table of sections 

2 of chapter 31 of title 5, United States Code, is amended 

3 by adding after the item relating to section 3114 the fol4 lowing: 

‘‘3115. Employment of political appointees.’’. 

5 (c) APPLICATION.— 

6 (1) APPOINTMENT REQUESTS.—Section 

7 3115(a) of title 5, United States Code, as added by 

8 subsection (a), shall apply to any appointment or re9 quest for appointment described in such section sub10 mitted to the Associate Director for Merit Systems 

11 Accountability and Compliance after the date of en12 actment of this Act. 

13 (2) LIMITATION ON APPOINTMENTS.—Section 

14 3115(b) of title 5, United States Code, as added by 

15 subsection (a), shall apply to any individual who 

16 leaves or departs from a political position (as that 

17 term is defined in section 3115(d) of such title, as 

18 added by such subsection) after the date of enact19 ment of this Act. 

20 (d) REGULATIONS REQUIRED.—The Director of the 

21 Office of Personnel Management shall issue regulations 

22 necessary to carry out this Act. Such regulations shall in23 clude guidance on the definition of the term ‘‘personally 

24 and substantially participated in any particular matter’’ 

25 in section 3115(b)(2) of title 5, United States Code, as 


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1 added by subsection (a), consistent with section 2641.201 

2 of title 5, Code of Federal Regulations. 

Æ 


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