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. 

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 ‘‘Appointments Clause En5 forcement Act of 2020’’. 

6 SEC. 2. MODIFICATIONS TO FEDERAL VACANCIES REFORM 

7 ACT OF 1998. 

8 (a) ACTING OFFICER.— 

9 (1) FIRST ASSISTANTS.—Section 3345(a) of 

10 title 5, United States Code, is amended— 


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1 (A) in paragraph (1), by adding at the end 

2 before the semi-colon the following: ‘‘, but only 

3 if the individual serving in the position of first 

4 assistant has occupied such position for the pe5 riod of 120 days immediately preceding the 

6 date of the death, resignation, or beginning of 

7 inability to serve (as the case may be)’’; and 

8 (B) by adding at the end the following: 

9 ‘‘(d)(1) For purposes of this section, beginning on the 

10 date that is 180 days after the date of enactment of the 

11 Appointments Clause Enforcement Act of 2020, a position 

12 shall be considered to be the first assistant to the office 

13 with respect to which a vacancy occurs only if such posi14 tion has been designated by law, rule, or regulation as the 

15 first assistant position. 

16 ‘‘(2) With respect to any office to which this section 

17 and sections 3346, 3347, 3349, 3349a, 3349b, 3349c, and 

18 3349d apply that is established after the date that is 180 

19 days after the date of enactment of this subsection that 

20 does not have a first assistant position designated by law, 

21 the head of the Executive agency at which such office is 

22 located shall designate a first assistant position not later 

23 than the date that is 60 days after such date of establish24 ment.’’. 


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1 (2) PRESIDENTIAL APPOINTMENTS.—Section 

2 3345(a) of title 5, United States Code, as amended 

3 by paragraph (1), is further amended— 

4 (A) in paragraph (2), by striking ‘‘who 

5 serves in an office’’ and inserting ‘‘who serves 

6 in an office within the same agency at which 

7 the vacancy occurs for the period of 120 days 

8 immediately preceding the date on which such 

9 vacancy occurs’’; and 

10 (B) in paragraph (3), 

11 (i) by striking ‘‘and’’ at the end of 

12 subparagraph (A); and 

13 (ii) by striking subparagraph (B) and 

14 inserting the following: 

15 ‘‘(B) the officer or employee occupies— 

16 ‘‘(i) a career position described under 

17 subparagraph (A) with a rate of pay equal 

18 to or greater than the minimum rate of 

19 pay payable for a position at GS–15 of the 

20 General Schedule; or 

21 ‘‘(ii) a position described under sub22 paragraph (A) that is a position in the 

23 Senior Executive Service; and 

24 ‘‘(C) possess the qualifications (if any) set 

25 forth in law, rule, or regulation that are otherVerDate Sep 11 2014 02:24 Nov 11, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H8481.IH H8481

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1 wise applicable to an individual appointed by 

2 the President, by and with the advice and con3 sent of the Senate, to occupy such office.’’. 

4 (3) IDENTIFICATION OF FIRST ASSISTANT POSI5 TION; DUTIES.—Section 3345 of title 5, United 

6 States Code, as amended by paragraph (1), is fur7 ther amended by adding at the end the following: 

8 ‘‘(e)(1) Not later than 180 days after the date of en9 actment of the Appointments Clause Enforcement Act of 

10 2020, with respect to any office within such agency to 

11 which this section and sections 3345, 3346, 3347, 3348, 

12 3349a, 3349b, 3349c, and 3349d apply, the head of each 

13 Executive agency shall issue regulations listing— 

14 ‘‘(A) the first assistant position to such office; 

15 and 

16 ‘‘(B) the nondelegable duties of such office. 

17 ‘‘(2) With respect to any office established after such 

18 date of enactment to which this section and sections 3345, 

19 3346, 3347, 3348, 3349a, 3349b, 3349c, and 3349d 

20 apply, not later than 180 days after the date such office 

21 is established, the head of the Executive agency at which 

22 such office is located shall issue regulations containing the 

23 information described under subparagraphs (A) and (B) 

24 of paragraph (1). 


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1 ‘‘(3) If the first assistant position or nondelegable du2 ties are modified by law with respect to an office for which 

3 regulations have been issued under paragraph (1) or (2), 

4 the head of the Executive agency at which such office is 

5 located shall update the regulations not later than 180 

6 days after the date that such modification takes effect.’’. 

7 (4) VACANCY OF INSPECTOR GENERAL POSI8 TIONS.—Section 3345 of title 5, United States Code, 

9 as amended by paragraph (3), is further amended by 

10 adding at the end the following: 

11 ‘‘(f)(1) Notwithstanding subsection (a), if an Inspec12 tor General position that requires appointment by the 

13 President by and with the advice and consent of the Sen14 ate to be filled is vacant, the first assistant shall serve 

15 as the acting Inspector General. 

16 ‘‘(2) If the first assistant position is vacant, the first 

17 assistant is unable or unavailable to serve as acting In18 spector General, or there is no first assistant position, the 

19 acting Inspector General shall be appointed by chief judge 

20 of United States District Court for the District of Colum21 bia pursuant to paragraph (3). 

22 ‘‘(3) On the date an Inspector General position be23 comes vacant, the Chair of the Council of Inspectors Gen24 eral for Integrity and Efficiency shall convene a committee 

25 of three Inspectors General to recommend, to the chief 


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1 judge, at least two candidates to serve as acting Inspector 

2 General. The committee shall submit its recommendation 

3 to the chief judge within 14 days after such date, and the 

4 chief judge shall make the appointment within 14 days 

5 of receipt of the recommendations.’’. 

6 (b) REASONS FOR VACANCY.—Title 5, United States 

7 Code, is amended— 

8 (1) in section 3345— 

9 (A) in subsection (a), by inserting ‘‘sepa10 rates from the Federal service, placed on invol11 untary leave,’’ after ‘‘resigns,’’; and 

12 (B) by inserting ‘‘separation from the Fed13 eral service, placement on involuntary leave,’’ 

14 after ‘‘resignation,’’ in each instance; and 

15 (2) in section 3348(b), by inserting ‘‘separates 

16 from the Federal service, placed on involuntary 

17 leave,’’ after ‘‘resigns,’’. 

18 (c) TIME LIMITS.— 

19 (1) IN GENERAL.—Section 3346(a) of title 5, 

20 United States Code, is amended— 

21 (A) by striking paragraph (1) and insert22 ing the following: 

23 ‘‘(1) with respect to such person serving pursu24 ant to paragraph (1) of section 3345(a), for no 


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1 longer than 120 days beginning on the date the va2 cancy occurs; 

3 ‘‘(2) with respect to such person serving pursu4 ant to paragraph (2) or (3) of such section, for no 

5 longer than 60 days beginning on the date the va6 cancy occurs; or’’. 

7 (2) PRESIDENTIAL INAUGURAL TRANSITION.— 

8 Section 3349a(b) of title 5, United States Code, is 

9 amended— 

10 (A) by striking ‘‘210-day period’’ and in11 serting ‘‘120-day or 60-day period (as the case 

12 may be)’’; and 

13 (B) by striking ‘‘90 days’’ in each instance 

14 and inserting ‘‘60 days’’. 

15 (3) CONFORMING AMENDMENTS.— 

16 (A) Section 3346 of title 5, United States 

17 Code, is amended— 

18 (i) in subsection (b), by striking ‘‘210 

19 days’’ in each instance and inserting ‘‘120 

20 days or 60 days (as the case may be)’’; 

21 and 

22 (ii) in subsection (c), by striking 

23 ‘‘210-day period’’ and inserting ‘‘120-day 

24 or 60-day period (as the case may be)’’. 


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1 (B) Sections 3348(c) and 3349(b) of such 

2 title is amended by striking ‘‘210-day period’’ 

3 in each instance and inserting ‘‘120-day or 60- 

4 day period (as the case may be)’’. 

5 (d) PRIVATE RIGHT OF ACTION.—Section 3348(d) of 

6 title 5, United States Code, is amended by inserting at 

7 the end the following: 

8 ‘‘(3) A person harmed by such an action may 

9 bring an action in an appropriate district court of 

10 the United States for declaratory and injunctive re11 lief, including the removal of such person from the 

12 acting official position. Nothing in this paragraph 

13 shall be construed to supersede or otherwise limit 

14 any provision of law providing employment protec15 tions to such person, including the provisions of 

16 chapter 75.’’. 

17 (e) EXCLUSIVITY.—Section 3347 of title 5, United 

18 States Code, is amended— 

19 (1) by redesignating subsection (b) as sub20 section (c); and 

21 (2) by inserting after subsection (a) the fol22 lowing: 

23 ‘‘(b) Notwithstanding subsection (a), any statutory 

24 provision covered under paragraph (1) of such subsection 

25 that provides a mandatory order or directive to designate 


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1 an officer or employee to perform the functions and duties 

2 of a specified office temporarily in an acting capacity shall 

3 be the exclusive means for temporarily authorizing an act4 ing official to perform the functions and duties of such 

5 office.’’. 

6 (f) GAO REPORTS.—Section 3349 of title 5, United 

7 States Code, is amended— 

8 (1) in subsection (b), by striking paragraphs 

9 (1) and (2) and inserting the following: 

10 ‘‘(1) the Committee on Homeland Security and 

11 Governmental Affairs of the Senate; 

12 ‘‘(2) the Committee on Oversight and Reform 

13 of the House of Representatives;’’; and 

14 (2) by adding at the end the following: 

15 ‘‘(c) The Comptroller General shall publish and main16 tain, on the public Internet website of the Government Ac17 countability Office, a database containing— 

18 ‘‘(1) a list of each office to which this section 

19 and sections 3345, 3346, 3347, 3348, 3349a, 

20 3349b, and 3349c apply; and 

21 ‘‘(2) with respect to any such office so listed— 

22 ‘‘(A) the name of the individual occupying, 

23 and the date the individual was appointed to, 

24 the office; 


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1 ‘‘(B) if the office is vacant, the date the 

2 vacancy commenced, the number of days of the 

3 vacancy, and the name of the individual (if any) 

4 nominated to serve in the office; 

5 ‘‘(C) if the office is occupied by an acting 

6 official, the name of the acting official, the date 

7 on which the acting official first occupied the 

8 office, and the number of days the acting offi9 cial has occupied the office; 

10 ‘‘(D) the position designated as a first as11 sistant position under section 3345(d); 

12 ‘‘(E) the name of the individual occupying, 

13 and the date such individual was appointed to, 

14 such first assistant position; and 

15 ‘‘(F) a citation to the regulations issued 

16 under section 3345(e), including a hyperlink (if 

17 any) to such regulations.’’. 

18 (g) COURT-APPOINTED OFFICIALS.— 

19 (1) IN GENERAL.—Subchapter III of chapter 

20 33 of title 5, United States Code, is amended by in21 serting after section 3349d the following: 

22 ‘‘§ 3349e. Court-appointed officials removed by Presi23 dent 

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1 vidual appointed under section 546(d) of title 28, is re2 moved from such office by the President, such court shall 

3 have the sole authority to appoint an individual to carry 

4 out the duties of such office until the vacancy is filled.’’. 

5 (2) CLERICAL AMENDMENT.—The table of sec6 tions for such subchapter is amended by adding 

7 after the item relating to section 3349d the fol8 lowing: 

‘‘3349e. Court-appointed officials removed by President.’’. 

9 (h) RULE OF CONSTRUCTION.—This Act and the 

10 amendments made by this Act shall apply to any office 

11 to which sections 3345, 3346, 3347, 3349, 3349a, 3349b, 

12 3349c, and 3349d of title 5, United States Code, apply 

13 established before, on, or after the date of enactment of 

14 this Act. 

15 (i) SEVERABILITY.—If any provision of this Act or 

16 an amendment made by this Act, or the application of a 

17 provision or amendment to any person or circumstance, 

18 is held to be invalid for any reason in any court of com19 petent jurisdiction, the remainder of this Act and amend20 ments made by this Act, and the application of the provi21 sions and amendment to any other person or cir22 cumstance, shall not be affected. 

Æ 


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