I 116th CONGRESS 2d Session H. R. 8481 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. Short title This Act may be cited as Appointments Clause Enforcement Act of 2020 . 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: 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.