II 

Calendar No. 673 

115TH CONGRESS 

2D SESSION H. R. 1132 

[Report No. 115–387] 

IN THE SENATE OF THE UNITED STATES 

MARCH 7, 2018 

Received; read twice and referred to the Committee on Homeland Security and 

Governmental Affairs 

NOVEMBER 26, 2018 

Reported by Mr. JOHNSON, with an amendment and an amendment to the 

title 

[Strike out all after the enacting clause and insert the part printed in italic] 

AN ACT 

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’’. 


daltland on DSKBBV9HB2PROD with BILLS
2 

•HR 1132 RS

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 of 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 


daltland on DSKBBV9HB2PROD with BILLS
3 

•HR 1132 RS

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 5-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 23:01 Nov 26, 2018 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6401 E:\BILLS\H1132.RS H1132

daltland on DSKBBV9HB2PROD with BILLS
4 

•HR 1132 RS

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 of Merit Systems Accountability 


daltland on DSKBBV9HB2PROD with BILLS
5 

•HR 1132 RS

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 


daltland on DSKBBV9HB2PROD with BILLS
6 

•HR 1132 RS

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.’’. 


daltland on DSKBBV9HB2PROD with BILLS
7 

•HR 1132 RS

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 of 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(c)(2) of such title, 

18 as 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 a particular matter’’ in 

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


daltland on DSKBBV9HB2PROD with BILLS
8 

•HR 1132 RS

1 by subsection (a), consistent with section 2641.201 of title 

2 5, Code of Federal Regulations. 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Political Appointee Bur5 rowing Prevention Act’’. 

6 SEC. 2. LIMITATION ON EMPLOYMENT OF POLITICAL AP7 POINTEES IN CAREER CIVIL SERVICE POSI8 TIONS. 

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

10 5, United States Code, is amended by adding at the end 

11 the following: 

12 ‘‘§ 3117. Employment of political appointees 

13 ‘‘(a) APPOINTMENT APPROVAL REQUIRED.— 

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

15 not appoint a covered individual to a career position 

16 within the agency without receiving prior written ap17 proval from the Associate Director, consistent with the 

18 requirements of this subsection. 

19 ‘‘(2) REQUEST.—If the head of an agency wishes 

20 to appoint a covered individual to a career position, 

21 the head of the agency shall submit a request to the 

22 Associate Director to approve the appointment, which 

23 shall include a certification by the head of the agency 

24 to the Associate Director that— 


daltland on DSKBBV9HB2PROD with BILLS
9 

•HR 1132 RS

1 ‘‘(A) the career position would not involve 

2 confidential, policy-determining, policy-making, 

3 or policy-advocating responsibilities (unless the 

4 career position is in the Senior Executive Serv5 ice); 

6 ‘‘(B) the appointment process was based on 

7 merit after a fair and open competition; and 

8 ‘‘(C) the appointment process did not give 

9 any preference or special advantage to the cov10 ered individual based on a prior political ap11 pointment, political influence, or political affili12 ation. 

13 ‘‘(3) REVIEW AND DETERMINATION.— 

14 ‘‘(A) IN GENERAL.—The Associate Director 

15 shall— 

16 ‘‘(i) review each request received pursu17 ant to paragraph (2); and 

18 ‘‘(ii) make a favorable or unfavorable 

19 determination whether, with respect to the 

20 request, the position classification and 

21 qualifications requirements and the ap22 pointment process were fair, open, and free 

23 from political influence. 

24 ‘‘(B) APPROVAL.—If the Associate Director 

25 makes a favorable determination under subparaVerDate Sep 11 2014 23:01 Nov 26, 2018 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6203 E:\BILLS\H1132.RS H1132

daltland on DSKBBV9HB2PROD with BILLS
10 

•HR 1132 RS

1 graph (A)(ii), the Associate Director may ap2 prove the request. 

3 ‘‘(C) DENIAL.—If the Associate Director 

4 makes an unfavorable determination under sub5 paragraph (A)(ii), the Associate Director shall 

6 deny the request. 

7 ‘‘(4) NOTIFICATION TO CONGRESS.—With respect 

8 to any request approved under paragraph (3), the As9 sociate Director shall, not later than 5 days before the 

10 date the Associate Director provides the approval to 

11 the head of the requesting agency, submit to the Com12 mittee on Oversight and Government Reform of the 

13 House of Representatives and the Committee on 

14 Homeland Security and Governmental Affairs of the 

15 Senate the certification under paragraph (2) relating 

16 to the request and the rationale of the head of the 

17 agency for the certification. 

18 ‘‘(b) PROBATIONARY PERIOD.— 

19 ‘‘(1) IN GENERAL.—A covered individual shall 

20 complete a 2-year period of probation before an ap21 pointment to a career position in the competitive 

22 service approved under subsection (a) becomes final. 

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

24 apply to— 


daltland on DSKBBV9HB2PROD with BILLS
11 

•HR 1132 RS

1 ‘‘(A) a political appointee who has not per2 sonally and substantially participated in any 

3 particular policy-making activity or similar 

4 matter while employed in a political position; or 

5 ‘‘(B) a political appointee who has pre6 viously held a career position in the competitive 

7 service and successfully completed a proba8 tionary period for that position under section 

9 3321. 

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

11 construed to restrict the appointment of an individual who 

12 is— 

13 ‘‘(1) entitled to reinstatement under section 

14 3593(b); or 

15 ‘‘(2) eligible for reinstatement under section 

16 3593(a). 

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

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

19 term ‘Executive agency’ in section 105; 

20 ‘‘(2) the term ‘Associate Director’ means— 

21 ‘‘(A) the Associate Director of Merit Sys22 tems Accountability and Compliance of the Of23 fice of Personnel Management; or 

24 ‘‘(B) if the Associate Director described in 

25 subparagraph (A) is not responsible for carrying 


daltland on DSKBBV9HB2PROD with BILLS
12 

•HR 1132 RS

1 out the authorities under section 1104(b)(2), the 

2 Associate Director of the Office of Personnel 

3 Management responsible for carrying out such 

4 authorities; 

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

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

7 filled by a career or career-conditional appoint8 ment; 

9 ‘‘(B) a position in the excepted service filled 

10 by an appointment of equivalent tenure as a po11 sition described in subparagraph (A); 

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

13 in paragraph (8) of section 3132(a), in the Sen14 ior Executive Service; or 

15 ‘‘(D) a general position in the Senior Exec16 utive Service filled by a career appointee, as de17 fined in section 3132(a)(4); 

18 ‘‘(4) the term ‘covered individual’ means— 

19 ‘‘(A) a political appointee; 

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

21 any political position during the 5-year period 

22 before the date of the request described in sub23 section (a)(2); or 

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

25 Office of Personnel Management, a former politVerDate Sep 11 2014 23:01 Nov 26, 2018 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6203 E:\BILLS\H1132.RS H1132

daltland on DSKBBV9HB2PROD with BILLS
13 

•HR 1132 RS

1 ical appointee who held any political position 

2 before the 5-year period described in subpara3 graph (B); 

4 ‘‘(5) the term ‘participated’ means an action 

5 taken as an officer or employee through decision, ap6 proval, disapproval, recommendation, the rendering 

7 of advice, investigation, or other such action; 

8 ‘‘(6) the term ‘particular matter’ includes any 

9 investigation, application, request for a ruling or de10 termination, rulemaking, contract, controversy, claim, 

11 charge, accusation, arrest, or judicial or other pro12 ceeding; 

13 ‘‘(7) the term ‘political appointee’ means an in14 dividual serving in an appointment of any duration 

15 to a political position; and 

16 ‘‘(8) the term ‘political position’ means— 

17 ‘‘(A) a position with respect to which ap18 pointment is made— 

19 ‘‘(i) by the President; or 

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

21 advice and consent of the Senate; 

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

23 from the competitive service by reason of its con24 fidential, policy-determining, policy-making, or 

25 policy-advocating character; 


daltland on DSKBBV9HB2PROD with BILLS
14 

•HR 1132 RS

1 ‘‘(C) a position described under sections 

2 5312 through 5316 (relating to the Executive 

3 Schedule); or 

4 ‘‘(D) a general position in the Senior Exec5 utive Service filled by— 

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

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

8 ‘‘(ii) a limited term appointee or lim9 ited emergency appointee, as defined in 

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

11 who is serving under a political appoint12 ment.’’. 

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

14 chapter 31 of title 5, United States Code, is amended by 

15 adding after the item relating to section 3116 the following: 

‘‘3117. Employment of political appointees.’’. 

16 (c) APPLICATION.— 

17 (1) APPOINTMENT REQUESTS.—Section 3117(a) 

18 of title 5, United States Code, as added by subsection 

19 (a), shall apply to any appointment or request for 

20 appointment described in such section submitted to 

21 the Associate Director of Merit Systems Account22 ability and Compliance after the date of enactment of 

23 this Act. 

24 (2) LIMITATION ON APPOINTMENTS.—Section 

25 3117(b) of title 5, United States Code, as added by 


daltland on DSKBBV9HB2PROD with BILLS
15 

•HR 1132 RS

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

2 leaves or departs from a political position (as that 

3 term is defined in section 3117 of such title, as added 

4 by such subsection) after the date of enactment of this 

5 Act. 

6 (d) REGULATIONS REQUIRED.—The Director of the Of7 fice of Personnel Management, in consultation with the Of8 fice of Special Counsel, shall issue regulations necessary to 

9 carry out this Act and the amendments made by this Act, 

10 which shall include guidance on the definition of the term 

11 ‘‘personally and substantially participated in a particular 

12 policy-making activity or similar matter’’ in section 

13 3117(b)(2) of title 5, United States Code, as added by sub14 section (a), consistent with section 2641.201 of title 5, Code 

15 of Federal Regulations. 

Amend the title so as to read: ‘‘An Act to amend 

title 5, United States Code, to appropriately limit employment in a career civil service position for political appointees and former political appointees, and for other 

purposes.’’. 


daltland on DSKBBV9HB2PROD with BILLS
Calendar No. 673 

115TH CONGRESS 

2D SESSION H. R. 1132 

[Report No. 115–387] 

AN ACT 

To amend title 5, United States Code, to provide 

appointee, and for other purposes. reer civil service position for any former political for a 2-year prohibition on employment in a caNOVEMBER 26, 2018 

Reported with an amendment and an amendment to the 

title 


daltland on DSKBBV9HB2PROD with BILLS