Title: Appointments Clause Enforcement Act of 2020
Policy area: Government Operations and Politics

Summary:
Appointments Clause Enforcement Act of 2020
This bill makes a series of changes with respect to the appointment, tenure, and qualifications of acting officials of executive agencies. Among other changes, the bill reduces the tenure of acting officials, requires specific designation of first assistant positions, and creates a private right of action for harm caused by improper acting officials.

[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8481 Introduced in House (IH)]

<DOC>






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 Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as ``Appointments Clause Enforcement Act of 
2020''.

SEC. 2. MODIFICATIONS TO FEDERAL VACANCIES REFORM ACT OF 1998.

    (a) Acting Officer.--
            (1) First assistants.--Section 3345(a) of title 5, United 
        States Code, is amended--
                    (A) in paragraph (1), by adding at the end before 
                the semi-colon the following: ``, but only if the 
                individual serving in the position of first assistant 
                has occupied such position for the period of 120 days 
                immediately preceding the date of the death, 
                resignation, or beginning of inability to serve (as the 
                case may be)''; and
                    (B) by adding at the end the following:
    ``(d)(1) For purposes of this section, beginning on the date that 
is 180 days after the date of enactment of the Appointments Clause 
Enforcement Act of 2020, a position shall be considered to be the first 
assistant to the office with respect to which a vacancy occurs only if 
such position has been designated by law, rule, or regulation as the 
first assistant position.
    ``(2) With respect to any office to which this section and sections 
3346, 3347, 3349, 3349a, 3349b, 3349c, and 3349d apply that is 
established after the date that is 180 days after the date of enactment 
of this subsection that does not have a first assistant position 
designated by law, the head of the Executive agency at which such 
office is located shall designate a first assistant position not later 
than the date that is 60 days after such date of establishment.''.
            (2) Presidential appointments.--Section 3345(a) of title 5, 
        United States Code, as amended by paragraph (1), is further 
        amended--
                    (A) in paragraph (2), by striking ``who serves in 
                an office'' and inserting ``who serves in an office 
                within the same agency at which the vacancy occurs for 
                the period of 120 days immediately preceding the date 
                on which such vacancy occurs''; and
                    (B) in paragraph (3),
                            (i) by striking ``and'' at the end of 
                        subparagraph (A); and
                            (ii) by striking subparagraph (B) and 
                        inserting the following:
                    ``(B) the officer or employee occupies--
                            ``(i) a career position described under 
                        subparagraph (A) with a rate of pay equal to or 
                        greater than the minimum rate of pay payable 
                        for a position at GS-15 of the General 
                        Schedule; or
                            ``(ii) a position described under 
                        subparagraph (A) that is a position in the 
                        Senior Executive Service; and
                    ``(C) possess the qualifications (if any) set forth 
                in law, rule, or regulation that are otherwise 
                applicable to an individual appointed by the President, 
                by and with the advice and consent of the Senate, to 
                occupy such office.''.
            (3) Identification of first assistant position; duties.--
        Section 3345 of title 5, United States Code, as amended by 
        paragraph (1), is further amended by adding at the end the 
        following:
    ``(e)(1) Not later than 180 days after the date of enactment of the 
Appointments Clause Enforcement Act of 2020, with respect to any office 
within such agency to which this section and sections 3345, 3346, 3347, 
3348, 3349a, 3349b, 3349c, and 3349d apply, the head of each Executive 
agency shall issue regulations listing--
            ``(A) the first assistant position to such office; and
            ``(B) the nondelegable duties of such office.
    ``(2) With respect to any office established after such date of 
enactment to which this section and sections 3345, 3346, 3347, 3348, 
3349a, 3349b, 3349c, and 3349d apply, not later than 180 days after the 
date such office is established, the head of the Executive agency at 
which such office is located shall issue regulations containing the 
information described under subparagraphs (A) and (B) of paragraph (1).
    ``(3) If the first assistant position or nondelegable duties are 
modified by law with respect to an office for which regulations have 
been issued under paragraph (1) or (2), the head of the Executive 
agency at which such office is located shall update the regulations not 
later than 180 days after the date that such modification takes 
effect.''.
            (4) Vacancy of inspector general positions.--Section 3345 
        of title 5, United States Code, as amended by paragraph (3), is 
        further amended by adding at the end the following:
    ``(f)(1) Notwithstanding subsection (a), if an Inspector General 
position that requires appointment by the President by and with the 
advice and consent of the Senate to be filled is vacant, the first 
assistant shall serve as the acting Inspector General.
    ``(2) If the first assistant position is vacant, the first 
assistant is unable or unavailable to serve as acting Inspector 
General, or there is no first assistant position, the acting Inspector 
General shall be appointed by chief judge of United States District 
Court for the District of Columbia pursuant to paragraph (3).
    ``(3) On the date an Inspector General position becomes vacant, the 
Chair of the Council of Inspectors General for Integrity and Efficiency 
shall convene a committee of three Inspectors General to recommend, to 
the chief judge, at least two candidates to serve as acting Inspector 
General. The committee shall submit its recommendation to the chief 
judge within 14 days after such date, and the chief judge shall make 
the appointment within 14 days of receipt of the recommendations.''.
    (b) Reasons for Vacancy.--Title 5, United States Code, is amended--
            (1) in section 3345--
                    (A) in subsection (a), by inserting ``separates 
                from the Federal service, placed on involuntary 
                leave,'' after ``resigns,''; and
                    (B) by inserting ``separation from the Federal 
                service, placement on involuntary leave,'' after 
                ``resignation,'' in each instance; and
            (2) in section 3348(b), by inserting ``separates from the 
        Federal service, placed on involuntary leave,'' after 
        ``resigns,''.
    (c) Time Limits.--
            (1) In general.--Section 3346(a) of title 5, United States 
        Code, is amended--
                    (A) by striking paragraph (1) and inserting the 
                following:
            ``(1) with respect to such person serving pursuant to 
        paragraph (1) of section 3345(a), for no longer than 120 days 
        beginning on the date the vacancy occurs;
            ``(2) with respect to such person serving pursuant to 
        paragraph (2) or (3) of such section, for no longer than 60 
        days beginning on the date the vacancy occurs; or''.
            (2) Presidential inaugural transition.--Section 3349a(b) of 
        title 5, United States Code, is amended--
                    (A) by striking ``210-day period'' and inserting 
                ``120-day or 60-day period (as the case may be)''; and
                    (B) by striking ``90 days'' in each instance and 
                inserting ``60 days''.
            (3) Conforming amendments.--
                    (A) Section 3346 of title 5, United States Code, is 
                amended--
                            (i) in subsection (b), by striking ``210 
                        days'' in each instance and inserting ``120 
                        days or 60 days (as the case may be)''; and
                            (ii) in subsection (c), by striking ``210-
                        day period'' and inserting ``120-day or 60-day 
                        period (as the case may be)''.
                    (B) Sections 3348(c) and 3349(b) of such title is 
                amended by striking ``210-day period'' in each instance 
                and inserting ``120-day or 60-day period (as the case 
                may be)''.
    (d) Private Right of Action.--Section 3348(d) of title 5, United 
States Code, is amended by inserting at the end the following:
            ``(3) A person harmed by such an action may bring an action 
        in an appropriate district court of the United States for 
        declaratory and injunctive relief, including the removal of 
        such person from the acting official position. Nothing in this 
        paragraph shall be construed to supersede or otherwise limit 
        any provision of law providing employment protections to such 
        person, including the provisions of chapter 75.''.
    (e) Exclusivity.--Section 3347 of title 5, United States Code, is 
amended--
            (1) by redesignating subsection (b) as subsection (c); and
            (2) by inserting after subsection (a) the following:
    ``(b) Notwithstanding subsection (a), any statutory provision 
covered under paragraph (1) of such subsection that provides a 
mandatory order or directive to designate an officer or employee to 
perform the functions and duties of a specified office temporarily in 
an acting capacity shall be the exclusive means for temporarily 
authorizing an acting official to perform the functions and duties of 
such office.''.
    (f) GAO Reports.--Section 3349 of title 5, United States Code, is 
amended--
            (1) in subsection (b), by striking paragraphs (1) and (2) 
        and inserting the following:
            ``(1) the Committee on Homeland Security and Governmental 
        Affairs of the Senate;
            ``(2) the Committee on Oversight and Reform of the House of 
        Representatives;''; and
            (2) by adding at the end the following:
    ``(c) The Comptroller General shall publish and maintain, on the 
public Internet website of the Government Accountability Office, a 
database containing--
            ``(1) a list of each office to which this section and 
        sections 3345, 3346, 3347, 3348, 3349a, 3349b, and 3349c apply; 
        and
            ``(2) with respect to any such office so listed--
                    ``(A) the name of the individual occupying, and the 
                date the individual was appointed to, the office;
                    ``(B) if the office is vacant, the date the vacancy 
                commenced, the number of days of the vacancy, and the 
                name of the individual (if any) nominated to serve in 
                the office;
                    ``(C) if the office is occupied by an acting 
                official, the name of the acting official, the date on 
                which the acting official first occupied the office, 
                and the number of days the acting official has occupied 
                the office;
                    ``(D) the position designated as a first assistant 
                position under section 3345(d);
                    ``(E) the name of the individual occupying, and the 
                date such individual was appointed to, such first 
                assistant position; and
                    ``(F) a citation to the regulations issued under 
                section 3345(e), including a hyperlink (if any) to such 
                regulations.''.
    (g) Court-Appointed Officials.--
            (1) In general.--Subchapter III of chapter 33 of title 5, 
        United States Code, is amended by inserting after section 3349d 
        the following:
``Sec. 3349e. Court-appointed officials removed by President
    ``If an officer of an Executive agency whose appointment to office 
was made by a court, including any individual appointed under section 
546(d) of title 28, is removed from such office by the President, such 
court shall have the sole authority to appoint an individual to carry 
out the duties of such office until the vacancy is filled.''.
            (2) Clerical amendment.--The table of sections for such 
        subchapter is amended by adding after the item relating to 
        section 3349d the following:

``3349e. Court-appointed officials removed by President.''.
    (h) Rule of Construction.--This Act and the amendments made by this 
Act shall apply to any office to which sections 3345, 3346, 3347, 3349, 
3349a, 3349b, 3349c, and 3349d of title 5, United States Code, apply 
established before, on, or after the date of enactment of this Act.
    (i) Severability.--If any provision of this Act or an amendment 
made by this Act, or the application of a provision or amendment to any 
person or circumstance, is held to be invalid for any reason in any 
court of competent jurisdiction, the remainder of this Act and 
amendments made by this Act, and the application of the provisions and 
amendment to any other person or circumstance, shall not be affected.
                                 <all>