II
115th CONGRESS
2d Session
S. 3199
IN THE SENATE OF THE UNITED STATES
July 12, 2018
Mr. Burr (for himself, Mr. Grassley, Mr. Heller, Mr. Isakson, Mr. Scott, and Mr. Enzi) introduced the following bill; which was read twice and referred to the Committee on Finance
A BILL
To establish an expedited process for removal of senior executives of the Internal Revenue Service based on performance or misconduct.
Short title
This Act may be cited as the IRS Accountability Act of 2018
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Authority to remove or transfer senior IRS executives who fail in their performance or engage in serious misconduct
In general
Section 1203 of the Internal Revenue Service Restructuring and Reform Act of 1998 (26 U.S.C. 7804 note) is amended by adding at the end the following new subsection:
Removal of senior executives based on performance or misconduct
Removal or transfer
In general
The Commissioner of Internal Revenue (referred to in this subsection as the Commissioner) may remove an individual employed in a senior executive position at the Internal Revenue Service from the senior executive position if the Commissioner determines the performance or misconduct of the individual warrants such removal. If the Commissioner so removes such an individual, the Commissioner may—
remove the individual from the civil service (as defined in section 2101 of title 5, United States Code); or
in the case of an individual described in subparagraph (B), transfer the individual from the senior executive position to a General Schedule position at any grade of the General Schedule for which the individual is qualified and that the Commissioner determines is appropriate.
Individuals eligible for transfer
An individual described in this subparagraph is an individual who—
previously occupied a permanent position within the competitive service (as that term is defined in section 2102 of title 5, United States Code);
previously occupied a permanent position within the excepted service (as that term is defined in section 2103 of title 5, United States Code); or
prior to employment in a senior executive position at the Internal Revenue Service, did not occupy any position within the Federal Government.
Pay of transferred individuals
In general
Notwithstanding any other provision of law, including the requirements of section 3594 of title 5, United States Code, any individual transferred to a General Schedule position under paragraph (1)(A)(ii) shall, beginning on the date of such transfer, receive the annual rate of pay applicable to such position.
Paid leave during appeal
An individual so transferred may not be placed on administrative leave or any other category of paid leave during the period during which an appeal (if any) under this section is ongoing, and may only receive pay if the individual reports for duty. If an individual so transferred does not report for duty, such individual shall not receive pay or other benefits pursuant to paragraph (5)(E).
Notice to Congress
Not later than 30 days after removing or transferring an individual from a senior executive position under paragraph (1), the Commissioner shall submit written notice of such removal or transfer and the reason for such removal or transfer to—
the Committee on Finance of the Senate;
the Committee on Homeland Security and Governmental Affairs of the Senate;
the Committee on Ways and Means of the House of Representatives; and
the Committee on Oversight and Government Reform of the House of Representatives.
Procedure
In general
The procedures under section 7543(b) of title 5, United States Code, shall not apply to a removal or transfer under this section.
Appeal to Merit System Protection Board
In general
Subject to clause (ii) and paragraph (5), any removal or transfer under paragraph (1) may be appealed to the Merit Systems Protection Board under section 7701 of title 5, United States Code.
Deadline for appeal
An appeal under clause (i) of a removal or transfer may only be made if such appeal is made not later than 7 days after the date of such removal or transfer.
Expedited review by administrative law judge
In general
Upon receipt of an appeal under paragraph (4)(B)(i), the Merit Systems Protection Board shall refer such appeal to an administrative law judge pursuant to section 7701(b)(1) of title 5, United States Code. The administrative law judge shall expedite any such appeal under such section and, in any such case, shall issue a decision not later than 21 days after the date of the appeal.
Finality of decision
Notwithstanding any other provision of law, including section 7703 of title 5, United States Code, the decision of an administrative law judge under subparagraph (A) shall be final and shall not be subject to any further appeal.
Failure to reach decision
In any case in which the administrative law judge cannot issue a decision in accordance with the 21-day requirement under subparagraph (A), the removal or transfer is final. In such a case, the Merit Systems Protection Board shall, within 14 days after the date that such removal or transfer is final, submit to Congress and the Committees described in paragraph (3) a report that explains the reasons why a decision was not issued in accordance with such requirement.
Prohibition on stay of removal or transfer
The Merit Systems Protection Board or administrative law judge may not stay any removal or transfer under this subsection.
Period of review
During the period beginning on the date on which an individual appeals a removal from the civil service under paragraph (4) and ending on the date that the administrative law judge issues a final decision on such appeal, such individual may not receive any pay, awards, bonuses, incentives, allowances, differentials, student loan repayments, special payments, or benefits.
Relevant information to be provided
To the maximum extent practicable, the Commissioner shall provide to the Merit Systems Protection Board, and to any administrative law judge to whom an appeal under this section is referred, such information and assistance as may be necessary to ensure an appeal under this paragraph is expedited.
Relation to other provisions of law
In general
The authority provided by this subsection is in addition to, and shall not be construed to limit or diminish, the authority provided by—
subsections (a) and (c); and
section 3592 or subchapter V of chapter 75 of title 5, United States Code.
Removal from Senior Executive Service
Section 3592(b)(1) of title 5, United States Code, does not apply to an action to remove or transfer an individual under this subsection.
Definitions
For purposes of this subsection:
Individual
The term individual means a career appointee (as that term is defined in section 3132(a)(4) of title 5, United States Code).
Misconduct
In general
Subject to clause (ii), the term misconduct includes neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function.
Exception
The term misconduct shall not include any act or omission described in subsection (b).
Senior executive position
The term senior executive position means a Senior Executive Service position (as such term is defined in section 3132(a)(2) of title 5, United States Code).
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Establishment of expedited review process
In general
Not later than 60 days after the date of the enactment of this Act, the Merit Systems Protection Board shall establish and put into effect a process to conduct expedited reviews in accordance with subsection (f) of section 1203 of the Internal Revenue Service Restructuring and Reform Act of 1998, as added by this Act.
Inapplicability of certain regulations
Section 1201.22 of title 5, Code of Federal Regulations, as in effect on the day before the date of the enactment of this Act, shall not apply to expedited reviews carried out under such section 1203(f).
Waiver
The Merit Systems Protection Board may waive any other regulation in order to provide for the expedited review required under such section 1203(f).
Review by Merit Systems Protection Board
Not later than 30 days after the date of the enactment of this Act, the Merit Systems Protection Board shall submit to the committees described in paragraph (3) of such section 1203(f) a report on the actions the Board plans to take to conduct expedited reviews under such section. Such report shall include a description of the resources the Board determines will be necessary to conduct such reviews and a description of whether any resources will be necessary to conduct such reviews that were not available to the Board on the day before the date of the enactment of this Act.
Temporary exemption from certain limitation on initiation of removal from senior executive service
During the 120-day period beginning on the date of the enactment of this Act, an action to remove an individual from the Senior Executive Service at the Internal Revenue Service pursuant to section 7543 of title 5, United States Code, may be initiated, notwithstanding section 3592(b) of such title, or any other provision of law.
Construction
Nothing in this section or section 1203(f) of the Internal Revenue Service Restructuring and Reform Act of 1998, as added by this Act, shall be construed to apply to an appeal of a removal, transfer, or other personnel action that was pending before the date of the enactment of this Act.