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119th Congress

Title 5 — Government Organization and Employees

Part III · Chapter 23 — Merit System Principles

§ 2302. Prohibited personnel practices

Statutory text

(a)
(1)

For the purpose of this title, “prohibited personnel practice” means any action described in subsection (b).

(2)

For the purpose of this section—

(A)

“personnel action” means—

(i)

an appointment;

(ii)

a promotion;

(iii)

an action under chapter 75 of this title or other disciplinary or corrective action;

(iv)

a detail, transfer, or reassignment;

(v)

a reinstatement;

(vi)

a restoration;

(vii)

a reemployment;

(viii)

a performance evaluation under chapter 43 of this title or under title 38;

(ix)

a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subparagraph;

(x)

a decision to order psychiatric testing or examination;

(xi)

the implementation or enforcement of any nondisclosure policy, form, or agreement; and

(xii)

any other significant change in duties, responsibilities, or working conditions;

with respect to an employee in, or applicant for, a covered position in an agency, and in the case of an alleged prohibited personnel practice described in subsection (b)(8), an employee or applicant for employment in a Government corporation as defined in section 9101 of title 31;

(B)

“covered position” means, with respect to any personnel action, any position in the competitive service, a career appointee position in the Senior Executive Service, or a position in the excepted service, but does not include any position which is, prior to the personnel action—

(i)

excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character; or

(ii)

excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good administration;

(C)

“agency” means an Executive agency and the Government Publishing Office, but does not include—

(i)

a Government corporation, except in the case of an alleged prohibited personnel practice described under subsection (b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D);

(ii)
(I)

the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office; and

(II)

as determined by the President, any executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities, provided that the determination be made prior to a personnel action; or

(iii)

the Government Accountability Office; and

(D)

“disclosure” means a formal or informal communication or transmission, but does not include a communication concerning policy decisions that lawfully exercise discretionary authority unless the employee or applicant providing the disclosure reasonably believes that the disclosure evidences—

(i)

any violation of any law, rule, or regulation; or

(ii)

gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

(b)

Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority—

(1)

discriminate for or against any employee or applicant for employment—

(A)

on the basis of race, color, religion, sex, or national origin, as prohibited under section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16);

(B)

on the basis of age, as prohibited under sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a);

(C)

on the basis of sex, as prohibited under section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d));

(D)

on the basis of handicapping condition, as prohibited under section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791); or

(E)

on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation;

(2)

solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action unless such recommendation or statement is based on the personal knowledge or records of the person furnishing it and consists of—

(A)

an evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or

(B)

an evaluation of the character, loyalty, or suitability of such individual;

(3)

coerce the political activity of any person (including the providing of any political contribution or service), or take any action against any employee or applicant for employment as a reprisal for the refusal of any person to engage in such political activity;

(4)

deceive or willfully obstruct any person with respect to such person’s right to compete for employment;

(5)

influence any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment;

(6)

grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment;

(7)

appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position any individual who is a relative (as defined in section 3110(a)(3) of this title) of such employee if such position is in the agency in which such employee is serving as a public official (as defined in section 3110(a)(2) of this title) or over which such employee exercises jurisdiction or control as such an official;

(8)

take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of—

(A)

any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences—

(i)

any violation of any law, rule, or regulation, or

(ii)

gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,

if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs;

(B)

any disclosure to the Special Counsel, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee or applicant reasonably believes evidences—

(i)

any violation (other than a violation of this section) of any law, rule, or regulation, or

(ii)

gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; or

(C)

any disclosure to Congress (including any committee of Congress) by any employee of an agency or applicant for employment at an agency of information described in subparagraph (B) that is—

(i)

not classified; or

(ii)

if classified—

(I)

has been classified by the head of an agency that is not an element of the intelligence community (as defined by section 3 of the National Security Act of 1947 (50 U.S.C. 3003)); and

(II)

does not reveal intelligence sources and methods.1

(9)

take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of—

(A)

the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation—

(i)

with regard to remedying a violation of paragraph (8); or

(ii)

other than with regard to remedying a violation of paragraph (8);

(B)

testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A)(i) or (ii);

(C)

cooperating with or disclosing information to the Inspector General (or any other component responsible for internal investigation or review) of an agency, or the Special Counsel, in accordance with applicable provisions of law; or

(D)

refusing to obey an order that would require the individual to violate a law, rule, or regulation;

(10)

discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others; except that nothing in this paragraph shall prohibit an agency from taking into account in determining suitability or fitness any conviction of the employee or applicant for any crime under the laws of any State, of the District of Columbia, or of the United States;

(11)
(A)

knowingly take, recommend, or approve any personnel action if the taking of such action would violate a veterans’ preference requirement; or

(B)

knowingly fail to take, recommend, or approve any personnel action if the failure to take such action would violate a veterans’ preference requirement;

(12)

take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title;

(13)

implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement—

(A)

does not contain the following statement: “These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General or the Office of Special Counsel of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.”; or

(B)

prohibits or restricts an employee or applicant for employment from disclosing to Congress, the Special Counsel, the Inspector General of an agency, or any other agency component responsible for internal investigation or review any information that relates to any violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or any other whistleblower protection; or

(14)

access the medical record of another employee or an applicant for employment as a part of, or otherwise in furtherance of, any conduct described in paragraphs (1) through (13).

This subsection shall not be construed to authorize the withholding of information from Congress or the taking of any personnel action against an employee who discloses information to Congress. For purposes of paragraph (8), (i) any presumption relating to the performance of a duty by an employee whose conduct is the subject of a disclosure as defined under subsection (a)(2)(D) may be rebutted by substantial evidence, and (ii) a determination as to whether an employee or applicant reasonably believes that such employee or applicant has disclosed information that evidences any violation of law, rule, regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety shall be made by determining whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee or applicant could reasonably conclude that the actions of the Government evidence such violations, mismanagement, waste, abuse, or danger.

(c)
(1)

In this subsection—

(A)

the term “new employee” means an individual—

(i)

appointed to a position as an employee on or after the date of enactment of this subsection; and

(ii)

who has not previously served as an employee; and

(B)

the term “whistleblower protections” means the protections against and remedies for a prohibited personnel practice described in paragraph (8) or subparagraph (A)(i), (B), (C), or (D) of paragraph (9) of subsection (b).

(2)

The head of each agency shall be responsible for—

(A)

preventing prohibited personnel practices;

(B)

complying with and enforcing applicable civil service laws, rules, and regulations and other aspects of personnel management; and

(C)

ensuring, in consultation with the Special Counsel and the Inspector General of the agency, that employees of the agency are informed of the rights and remedies available to the employees under this chapter and chapter 12, including—

(i)

information with respect to whistleblower protections available to new employees during a probationary period;

(ii)

the role of the Office of Special Counsel and the Merit Systems Protection Board with respect to whistleblower protections; and

(iii)

the means by which, with respect to information that is otherwise required by law or Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs, an employee may make a lawful disclosure of the information to—

(I)

the Special Counsel;

(II)

the Inspector General of an agency;

(III)

Congress (including any committee of Congress with respect to information that is not classified or, if classified, has been classified by the head of an agency that is not an element of the intelligence community and does not reveal intelligence sources and methods); or

(IV)

another employee of the agency who is designated to receive such a disclosure.

(3)

The head of each agency shall ensure that the information described in paragraph (2) is provided to each new employee of the agency not later than 180 days after the date on which the new employee is appointed.

(4)

The head of each agency shall make available information regarding whistleblower protections applicable to employees of the agency on the public website of the agency and on any online portal that is made available only to employees of the agency, if such portal exists.

(5)

Any employee to whom the head of an agency delegates authority for any aspect of personnel management shall, within the limits of the scope of the delegation, be responsible for the activities described in paragraph (2).

(d)

This section shall not be construed to extinguish or lessen any effort to achieve equal employment opportunity through affirmative action or any right or remedy available to any employee or applicant for employment in the civil service under—

(1)

section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16), prohibiting discrimination on the basis of race, color, religion, sex, or national origin;

(2)

sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a), prohibiting discrimination on the basis of age;

(3)

under section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)), prohibiting discrimination on the basis of sex;

(4)

section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), prohibiting discrimination on the basis of handicapping condition; or

(5)

the provisions of any law, rule, or regulation prohibiting discrimination on the basis of marital status or political affiliation.

(e)
(1)

For the purpose of this section, the term “veterans’ preference requirement” means any of the following provisions of law:

(A)

Sections 2108, 3305(b), 3309, 3310, 3311, 3312, 3313, 3314, 3315, 3316, 3317(b), 3318, 3320, 3351, 3352, 3363, 3501, 3502(b), 3504, and 4303(e) and (with respect to a preference eligible referred to in section 7511(a)(1)(B)) subchapter II of chapter 75 and section 7701.

(B)

Sections 943(c)(2) and 1784(c) of title 10.

(C)

Section 1308(b) of the Alaska National Interest Lands Conservation Act.

(D)

Section 301(c) of the Foreign Service Act of 1980.

(E)

Sections 106(f),2 7281(e), and 7802(5) 2 of title 38.

(F)

Section 1005(a) of title 39.

(G)

Any other provision of law that the Director of the Office of Personnel Management designates in regulations as being a veterans’ preference requirement for the purposes of this subsection.

(H)

Any regulation prescribed under subsection (b) or (c) of section 1302 and any other regulation that implements a provision of law referred to in any of the preceding subparagraphs.

(2)

Notwithstanding any other provision of this title, no authority to order corrective action shall be available in connection with a prohibited personnel practice described in subsection (b)(11). Nothing in this paragraph shall be considered to affect any authority under section 1215 (relating to disciplinary action).

(f)
(1)

A disclosure shall not be excluded from subsection (b)(8) because—

(A)

the disclosure was made to a supervisor or to a person who participated in an activity that the employee or applicant reasonably believed to be covered by subsection (b)(8)(A)(i) and (ii);

(B)

the disclosure revealed information that had been previously disclosed;

(C)

of the employee’s or applicant’s motive for making the disclosure;

(D)

the disclosure was not made in writing;

(E)

the disclosure was made while the employee was off duty;

(F)

the disclosure was made before the date on which the individual was appointed or applied for appointment to a position; or

(G)

of the amount of time which has passed since the occurrence of the events described in the disclosure.

(2)

If a disclosure is made during the normal course of duties of an employee, the principal job function of whom is to regularly investigate and disclose wrongdoing (referred to in this paragraph as the “disclosing employee”), the disclosure shall not be excluded from subsection (b)(8) if the disclosing employee demonstrates that an employee who has the authority to take, direct other individuals to take, recommend, or approve any personnel action with respect to the disclosing employee took, failed to take, or threatened to take or fail to take a personnel action with respect to the disclosing employee in reprisal for the disclosure made by the disclosing employee.

Footnotes

  1. 1 So in original. The period probably should be a semicolon.
  2. 2 See References in Text note below.

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

  1. Pub. L. 95–454 title I § 101(a) · 92 Stat. 1111

    Enacted · 5 U.S.C. § 2302

    Added Pub. L. 95–454, title I, § 101(a), Oct. 13, 1978, 92 Stat. 1114

    Source evidence

    Code source credit
    Added Pub. L. 95–454, title I, § 101(a), Oct. 13, 1978, 92 Stat. 1114

    Enacted provision · exact public law section
    (a) Title 5, United States Code, is amended by inserting after chapter 21 the following new chapter: “CHAPTER 23— MERIT SYSTEM PRINCIPLES “Sec. “2301. Merit system principles. “2302. Prohibited personnel practices. “2303. Prohibited personnel practices in the Federal Bureau of Investigation. “2304. Responsibility of the General Accounting Office. “2305. Coordination with certain other provisions of law. “§2301. Merit system principles “(a) This section shall apply to— “(1) an Executive agency; “(2) the Administrative Office of the United States Courts; and “(3) the Government Printing Office. “(b) Federal personnel management should be implemented consistent with the following merit system principles: “(1) Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity. “(2) All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights. “(3) Equal pay should be provided for work of equal value, with appropriate consideration of both national and local rates paid by employers in the private sector, and appropriate incentives and recognition should be provided for excellence in performance. “(4) All employees should maintain high standards of integrity, conduct, and concern for the public interest. “(5) The Federal work force should be used efficiently and effectively. “(6) Employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards. “(7) Employees should be provided effective education and training in cases in which such education and training would result in better organizational and individual performance. “(8) Employees should be— “(A) protected against arbitrary action, personal favoritism, or coercion for partisan political purposes, and “(B) prohibited from using their official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for election. “(9) Employees should be protected against reprisal for the lawful disclosure of information which the employees reasonably believe evidences— “(A) a violation of any law, rule, or regulation, or “(B) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. “(c) In administering the provisions of this chapter— “(1) with respect to any agency (as defined in section 2302(a) Infra. (2) (C) of this title), the President shall, pursuant to the authority otherwise available under this title, take any action, including the issuance of rules, regulations, or directives; and “(2) with respect to any entity in the executive branch which is not such an agency or part of such an agency, the head of such entity shall, pursuant to authority otherwise available, take any action, including the issuance of rules, regulations, or directives; which is consistent with the provisions of this title and which the President or the head, as the case may be, determines is necessary to ensure that personnel management is based on and embodies the merit system principles. “§2302. Prohibited personnel practices “(a) (1) For the purpose of this title, ‘prohibited personnel practice’ Definitions. means any action described in subsection (b) of this section. “(2) For the purpose of this section— “(A) ‘personnel action’ means— “(i) an appointment; “(ii) a promotion; “(iii) an action under chapter 75 of this title or other disciplinary or corrective action; “(iv) a detail, transfer, or reassignment; “(v) a reinstatement; “(vi) a restoration; “(vii) a reemployment; “(viii) a performance evaluation under chapter 43 of this title; “(ix) a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subparagraph; and “(x) any other significant change in duties or responsibilities which is inconsistent with the employee’s salary or grade level; with respect to an employee in, or applicant for, a covered position in an agency; “(B) ‘covered position’ means any position in the competitive service, a career appointee position in the Senior Executive Service, or a position in the excepted service, but does not include— “(i) a position which is excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character; or “(ii) any position excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good administration. “(C) ‘agency’ means an Executive agency, the Administrative Office of the United States Courts, and the Government Printing Office, but does not include— “(i) a Government corporation; “(ii) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Security Agency, and, as determined by the President, any Executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities; or “(iii) the General Accounting Office. “(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority— “(1) discriminate for or against any employee or applicant for employment— “(A) on the basis of race, color, religion, sex, or national origin, as prohibited under section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16); “(B) on the basis of age, as prohibited under sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a); “(C) on the basis of sex, as prohibited under section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)); “(D) on the basis of handicapping condition, as prohibited under section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791); or “(E) on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation; “(2) solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action unless such recommendation or statement is based on the personal knowledge or records of the person furnishing it and consists of— “(A) an evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or “(B) an evaluation of the character, loyalty, or suitability of such individual; “(3) coerce the political activity of any person (including the providing of any political contribution or service), or take any action against any employee or applicant for employment as a reprisal for the refusal of any person to engage in such political activity; “(4) deceive or willfully obstruct any person with respect to such person’s right to compete for employment; “(5) influence any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment; “(6) grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment; “(7) appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position any individual who is a relative (as defined in section 3110(a) (3) of this title) of such employee if such position 5 USC 3110. is in the agency in which such employee is serving as a public official (as defined in section 3110(a)(2) of this title) or over which such employee exercises jurisdiction or control as such an official; “(8) take or fail to take a personnel action with respect to any employee or applicant for employment as a reprisal for— “(A) a disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences— “(i) a violation of any law, rule, or regulation, or “(ii) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs; or “(B) a disclosure to the Special Counsel of the Merit Systems Protection Board, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee or applicant reasonably believes evidences— “(i) a violation of any law, rule, or regulation, or “(ii) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; “(9) take or fail to take any personnel action against any employee or applicant for employment as a reprisal for the exercise of any appeal right granted by any law, rule, or regulation; “(10) discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others; except that nothing in this paragraph shall prohibit an agency from taking into account in determining suitability or fitness any conviction of the employee or applicant for any crime under the laws of any State, of the District of Columbia, or of the United States; or “(11) take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title. This subsection shall not be construed to authorize the withholding of information from the Congress or the taking of any personnel action against an employee who discloses information to the Congress. “(c) The head of each agency shall be responsible for the prevention of prohibited personnel practices, for the compliance with and enforcement of applicable civil service laws, rules, and regulations, and other aspects of personnel management. Any individual to whom the head of an agency delegates authority for personnel management, or for any aspect thereof, shall be similarly responsible within the limits of the delegation. “(d) This section shall not be construed to extinguish or lessen any effort to achieve equal employment opportunity through affirmative action or any right or remedy available to any employee or applicant for employment in the civil service under— “(1) section 7l7 of the Civil Eights Act of 1964 (42 U.S.C. 2000e–16), prohibiting discrimination on the basis of race, color, religion, sex, or national origin; “(2) sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a), prohibiting discrimination on the basis of age; “(3) under section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206 (d)) , prohibiting discrimination on the basis of sex; “(4) section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), prohibiting discrimination on the basis of handicapping condition; or “(5) the provisions of any law, rule, or regulation prohibiting discrimination on the basis of marital status or political affiliation. “2303. Prohibited personnel practices in the Federal Bureau of Investigation “(a) Any employee of the Federal Bureau of Investigation who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority, take or fail to take a personnel action with respect to any employee of the Bureau as a reprisal for a disclosure of information by the employee to the Attorney General (or an employee designated by the Attorney General for such purpose) which the employee or applicant reasonably believes evidences— “(1) a violation of any law, rule, or regulation, or “(2) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. For the purpose of this subsection, ‘personnel action’ means any action “Personnel action.” described in clauses (i) through (x) of section 2302(a) (2) (A) of this title with respect to an employee in, or applicant for, a position in the Bureau (other than a position of a confidential, policy-determining, policymaking, or policy-advocating character). “(b) The Attorney General shall prescribe regulations to ensure that Regulations. such a personnel action shall not be taken against an employee of the Bureau as a reprisal for any disclosure of information described in subsection (a) of this section. “(c) The President shall provide for the enforcement of this section Presidential enforcement. Post, p. 1125. in a manner consistent with the provisions of section 1206 of this title. “§2304. Responsibility of the General Accounting Office “(a) If requested by either House of the Congress (or any committee thereof), or if considered necessary by the Comptroller General, the General Accounting Office shall conduct audits and reviews to assure compliance with the laws, rules, and regulations governing employment in the executive branch and in the competitive service and to assess the effectiveness and soundness of Federal personnel management. “(b) the General Accounting Office shall prepare and submit an Report to President and Congress. annual report to the President and the Congress on the activities of the Merit Systems Protection Board and the Office of Personnel Management. The report shall include a description of— “(1) significant actions taken by the Board to carry out its functions under this title; and “(2) significant actions of the Office of Personnel Management, including an analysis of whether or not the actions of the Office are in accord with merit system principles and free from prohibited personnel practices. “§2305. Coordination with certain other provisions of law “No provision of this chapter, or action taken under this chapter, shall be construed to impair the authorities and responsibilities set forth in section 102 of the National Security Act of 1947 (61 Stat, 495; 50 U.S.C. 403), the Central Intelligence Agency Act of 1949 (63 Stat. 208; 50 U.S.C. 403a and following), the Act entitled ‘An Act to provide certain administrative authorities for the National Security Agency, and for other purposes’, approved May 29, 1959 (73 Stat. 63; 50 U.S.C. 402 note), and the Act entitled ‘An Act to amend the Internal Security Act of 1950’, approved March 26, 1964 (78 Stat. 168; 50 U.S.C. 831–835).”.

  2. Whistleblower Protection Act of 1989

    Pub. L. 101–12 § 4(a) · 103 Stat. 16

    1. Inserted · 5 U.S.C. § 2302(b)(8)

      Pub. L. 101–12, § 4(a), in introductory provision inserted “, or threaten to take or fail to take,” after “fail to”

    2. Substituted · 5 U.S.C. § 2302(b)(8)

      Pub. L. 101–12, § 4(a), in introductory provision substituted “because of” for “as a reprisal for” in subpar. (B)(ii) inserted “gross” before “mismanagement”

    3. Substituted · 5 U.S.C. § 2302(b)(8)

      Pub. L. 101–12, § 4(a), in introductory provision substituted “any disclosure” for “a disclosure” in subpar. (B)(ii) inserted “gross” before “mismanagement”

    Source evidence

    Code amendment note
    Subsec. (b)(8). Pub. L. 101–12, § 4(a), in introductory provision inserted “, or threaten to take or fail to take,” after “fail to” and substituted “because of” for “as a reprisal for”, in subpar. (A) substituted “any disclosure” for “a disclosure”, in subpar. (A)(ii) inserted “gross” before “mismanagement”, in subpar. (B) substituted “any disclosure” for “a disclosure”, and in subpar. (B)(ii) inserted “gross” before “mismanagement”.

    Enacted provision · exact public law section
    (a) Amendments to Section 2302(b)(8).— Section 2302(b)(8) of title 5,United States Code, is amended— (1) by inserting “, or threaten to take or fail to take,” after “take or fail to take”; (2) by striking out “as a reprisal for” and inserting in lieu thereof “because of”; (3) in subparagraph (A) by striking out “a disclosure” and inserting in lieu thereof “any disclosure”; (4) in subparagraph (A)(ii) by inserting “gross” before “mismanagement”; (5) in subparagraph (B) by striking out “a disclosure” and inserting in lieu thereof “any disclosure”; and (6) in subparagraph (B)(ii) by inserting “gross“ before “mismanagement”.

  3. Whistleblower Protection Act of 1989

    Pub. L. 101–12 § 4(b) · 103 Stat. 16

    Amended · 5 U.S.C. § 2302(b)(9)

    Pub. L. 101–12, § 4(b), amended par. (9) generally. Prior to amendment, par. (9) read as follows: “take or fail to take any personnel action against any employee or applicant for employment as a reprisal for the exercise of any appeal right granted by any law, rule, or regulation;”

    Source evidence

    Code amendment note
    Subsec. (b)(9). Pub. L. 101–12, § 4(b), amended par. (9) generally. Prior to amendment, par. (9) read as follows: “take or fail to take any personnel action against any employee or applicant for employment as a reprisal for the exercise of any appeal right granted by any law, rule, or regulation;”.

    Enacted provision · exact public law section
    (b) Amendment to Section 2302(b)(9).— Section 2302(b)(9) of title 5, United States Code, is amended to read as follows: “(9) take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of— “(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation; “(B) testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A); “(C) cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law; or “(D) for refusing to obey an order that would require the individual to violate a law;”.

  4. Administrative Office of the United States Courts Personnel Act of 1990

    Pub. L. 101–474 § 5(d) · 104 Stat. 1097

    Struck · 5 U.S.C. § 2302(a)(2)(C)

    Pub. L. 101–474 struck out “, the Administrative Office of the United States Courts,” after “means an Executive agency”

    Source evidence

    Code amendment note
    Subsec. (a)(2)(C). Pub. L. 101–474 struck out “, the Administrative Office of the United States Courts,” after “means an Executive agency”.

    Enacted provision · exact public law section
    (d) Section 2302(a)(2)(C) of title 5, United States Code, is amended by striking “, the Administrative Office of the United States Courts,”.

  5. Technical and Miscellaneous Civil Service Amendments Act of 1992

    Pub. L. 102–378 § 2(5) · 106 Stat. 1346

    Substituted · 5 U.S.C. § 2302(b)(8)(B)

    Pub. L. 102–378 substituted “Special Counsel” for “Special Counsel of the Merit Systems Protection Board”

    Source evidence

    Code amendment note
    Subsec. (b)(8)(B). Pub. L. 102–378 substituted “Special Counsel” for “Special Counsel of the Merit Systems Protection Board”.

    Enacted provision · exact public law section
    (5) in section 2302(b)(8)(B) by striking “Special Counsel of the Merit Systems Protection Board,” and inserting “Special Counsel,”;

  6. Pub. L. 103–94 § 8(c) · 107 Stat. 1001

    Amended · 5 U.S.C. § 2302(b)(2)

    Pub. L. 103–94 amended par. (2) generally. Prior to amendment, par. (2) read as follows: “solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action unless such recommendation or statement is based on the personal knowledge or records of the person furnishing it and consists of—

    Source evidence

    Code amendment note
    Subsec. (b)(2). Pub. L. 103–94 amended par. (2) generally. Prior to amendment, par. (2) read as follows: “solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action unless such recommendation or statement is based on the personal knowledge or records of the person furnishing it and consists of—

    “(A) an evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or “(B) an evaluation of the character, loyalty, or suitability of such individual;”.

    Enacted provision · exact public law section
    SEC. 8. POLITICAL RECOMMENDATIONS. (a) Section 3303 of title 5, United States Code, is amended to read as follows:

  7. Intelligence Authorization Act for Fiscal Year 1995

    Pub. L. 103–359 title V § 501(c) · 108 Stat. 3423

    Inserted · 5 U.S.C. § 2302(a)(2)(C)(ii)

    Pub. L. 103–359 inserted “the Central Imagery Office,” after “Defense Intelligence Agency,”

    Source evidence

    Code amendment note
    Subsec. (a)(2)(C)(ii). Pub. L. 103–359 inserted “the Central Imagery Office,” after “Defense Intelligence Agency,”.

    Enacted provision · exact public law section
    (c) Chapter 23 OF Title 5.— Section 2302(a)(2)(C)(ii) of title 5, United States Code, is amended by inserting “the Central Imagery Office,” after “Defense Intelligence Agency,”.

  8. Pub. L. 103–424 § 5(a)(3) · 108 Stat. 4361

    Inserted · 5 U.S.C. § 2302(a)(2)(A)

    Pub. L. 103–424, § 5(a)(3), in concluding provisions, inserted before semicolon “, and in the case of an alleged prohibited personnel practice described in subsection (b)(8), an employee or applicant for employment in a Government corporation as defined in section 9101 of title 31”

    Source evidence

    Code amendment note
    Subsec. (a)(2)(A). Pub. L. 103–424, § 5(a)(3), in concluding provisions, inserted before semicolon “, and in the case of an alleged prohibited personnel practice described in subsection (b)(8), an employee or applicant for employment in a Government corporation as defined in section 9101 of title 31”.

    Enacted provision · exact public law section
    (3) in the matter following designated clause (xi) (as added by paragraph (2) of this subsection) by inserting before the semicolon the following: “, and in the case of an alleged prohibited personnel practice described in subsection (b)(8), an employee or applicant for employment in a Government corporation as defined in section 9101 of title 31”.

  9. Pub. L. 103–424 § 5(a)(1) · 108 Stat. 4361

    1. Added · 5 U.S.C. § 2302(a)(2)(A)(x); 5 U.S.C. § 2302(a)(2)(A)(xi)

      Pub. L. 103–424, § 5(a)(1), (2), added cls. (x) and (xi)

    2. Struck · 5 U.S.C. § 2302(a)(2)(A)(x); 5 U.S.C. § 2302(a)(2)(A)(xi)

      Pub. L. 103–424, § 5(a)(1), (2), struck out former cl. (x) which read as follows: “any other significant change in duties or responsibilities which is inconsistent with the employee’s salary or grade level;”

    Source evidence

    Code amendment note
    Subsec. (a)(2)(A)(x), (xi). Pub. L. 103–424, § 5(a)(1), (2), added cls. (x) and (xi) and struck out former cl. (x) which read as follows: “any other significant change in duties or responsibilities which is inconsistent with the employee’s salary or grade level;”.

    Enacted provision · exact public law section
    (1) in clause (ix) by striking out “and” after the semicolon;

  10. Pub. L. 103–424 § 5(b) · 108 Stat. 4361

    Amended · 5 U.S.C. § 2302(a)(2)(B)

    Pub. L. 103–424, § 5(b), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: “ ‘covered position’ means any position in the competitive service, a career appointee position in the Senior Executive Service, or a position in the excepted service, but does not include—

    Source evidence

    Code amendment note
    Subsec. (a)(2)(B). Pub. L. 103–424, § 5(b), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: “ ‘covered position’ means any position in the competitive service, a career appointee position in the Senior Executive Service, or a position in the excepted service, but does not include—

    “(i) a position which is excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character; or “(ii) any position excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good administration.”

    Enacted provision · exact public law section
    (b) Covered Positions.— Section 2302(a)(2)(B) of title 5, United States Code, is amended to read as follows: “(B) ‘covered position’ means, with respect to any personnel action, any position in the competitive service, a career appointee position in the Senior Executive Service, or a position in the excepted service, but does not include any position which is, prior to the personnel action— “(i) excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character; or “(ii) excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good administration; and”.

  11. Pub. L. 103–424 § 5(c) · 108 Stat. 4361

    Inserted · 5 U.S.C. § 2302(a)(2)(C)(i)

    Pub. L. 103–424, § 5(c), inserted before semicolon “, except in the case of an alleged prohibited personnel practice described under subsection (b)(8)”

    Source evidence

    Code amendment note
    Subsec. (a)(2)(C)(i). Pub. L. 103–424, § 5(c), inserted before semicolon “, except in the case of an alleged prohibited personnel practice described under subsection (b)(8)”.

    Enacted provision · exact public law section
    (c) Agencies.— Section 2302(a)(2)(C) of title 5, United States Code, is amended in clause (i) by inserting before the semicolon: “, except in the case of an alleged prohibited personnel practice described under subsection (b)(8)”.

  12. Pub. L. 103–424 § 5(d) · 108 Stat. 4361

    Inserted · 5 U.S.C. § 2302(c)

    Pub. L. 103–424, § 5(d), inserted before period at end of first sentence “, and for ensuring (in consultation with the Office of Special Counsel) that agency employees are informed of the rights and remedies available to them under this chapter and chapter 12 of this title”

    Source evidence

    Code amendment note
    Subsec. (c). Pub. L. 103–424, § 5(d), inserted before period at end of first sentence “, and for ensuring (in consultation with the Office of Special Counsel) that agency employees are informed of the rights and remedies available to them under this chapter and chapter 12 of this title”.

    Enacted provision · exact public law section
    (d) Informational Program.— Section 2302(c) of title 5, United States Code, is amended in the first sentence by inserting before the period “, and for ensuring (in consultation with the Office of Special Counsel) that agency employees are informed of the rights and remedies available to them under this chapter and chapter 12 of this title”.

  13. National Defense Authorization Act for Fiscal Year 1997

    Pub. L. 104–201 § 1615(b) · 110 Stat. 2422

    Amended · 5 U.S.C. § 2302(a)(1)

    Pub. L. 104–201, § 1615(b), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “For the purpose of this title, ‘prohibited personnel practice’ means any action described in subsection (b) of this section.”

    Source evidence

    Code amendment note
    Subsec. (a)(1). Pub. L. 104–201, § 1615(b), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “For the purpose of this title, ‘prohibited personnel practice’ means any action described in subsection (b) of this section.”

    Enacted provision · exact public law section
    (b) Applicability of Title 5 Procedures and Sanctions.— Paragraph (1) of section 2302(a) of title 5, United States Code, is amended to read as follows: “(1) For purposes of this title, ‘prohibited personnel practice’ means the following: “(A) Any action described in subsection (b) of this section. “(B) Any action or failure to act that is designated as a prohibited personnel action under section 1599c(a) of title 10.”.

  14. National Imagery and Mapping Agency Act of 1996

    Pub. L. 104–201 § 1122(a)(1) · 110 Stat. 2422

    Substituted · 5 U.S.C. § 2302(a)(2)(C)(ii)

    Pub. L. 104–201, § 1122(a)(1), substituted “National Imagery and Mapping Agency” for “Central Imagery Office”

    Source evidence

    Code amendment note
    Subsec. (a)(2)(C)(ii). Pub. L. 104–201, § 1122(a)(1), substituted “National Imagery and Mapping Agency” for “Central Imagery Office”.

    Enacted provision · exact public law section
    (1) Central imagery office.— Sections 2302(a)(2)(C)(ii), 3132(a)(1)(B), 4301(1) (in clause (ii)), 4701(a)(1)(B), 5102(a)(1) (in clause (xi)), 5342(a)(1)(L), 6339(a)(1)(E), and 7323(b)(2)(B)(i)(XIII) are amended by striking out “Central Imagery Office” and inserting in lieu thereof “National Imagery and Mapping Agency”.

  15. Legislative Branch Appropriations Act, 1997

    Pub. L. 104–197 title III § 315(b)(2) · 110 Stat. 2394

    Amended · 5 U.S.C. § 2302(b)(2)

    Pub. L. 104–197 amended par. (2) generally. Prior to amendment, par. (2) read as follows: “solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action except as provided under section 3303(f);”

    Source evidence

    Code amendment note
    Subsec. (b)(2). Pub. L. 104–197 amended par. (2) generally. Prior to amendment, par. (2) read as follows: “solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action except as provided under section 3303(f);”.

    Enacted provision · exact public law section
    (2) Section 2302(b)(2) of title 5, United States Code, is amended to read as follows: “(2) solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action unless such recommendation or statement is based on the personal knowledge or records of the person furnishing it and consists of— “(A) an evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or “(B) an evaluation of the character, loyally, or suitability of such individual;”.

  16. Veterans Employment Opportunities Act of 1998”

    Pub. L. 105–339 § 6(c)(2) · 112 Stat. 3182

    Amended · 5 U.S.C. § 2302(a)(1)

    Pub. L. 105–339, § 6(c)(2), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “For purposes of this title, ‘prohibited personnel practice’ means the following:

    Source evidence

    Code amendment note
    Subsec. (a)(1). Pub. L. 105–339, § 6(c)(2), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “For purposes of this title, ‘prohibited personnel practice’ means the following:

    “(A) Any action described in subsection (b) of this section. “(B) Any action or failure to act that is designated as a prohibited personnel action under section 1599c(a) of title 10.”

    Enacted provision · exact public law section
    (2) Section 2302(a)(1) of title 5, united states code.— Subsection (a)(1) of section 2302 of title 5, United States Code, is amended to read as follows: “(a) (1) For the purpose of this title, ‘prohibited personnel practice’ means any action described in subsection (b).”.

  17. Veterans Employment Opportunities Act of 1998”

    Pub. L. 105–339 § 6(a) · 112 Stat. 3182

    1. Struck · 5 U.S.C. § 2302(b)(10)(12)

      Pub. L. 105–339, § 6(a), struck out “or” at end of par. (10)

    2. Added · 5 U.S.C. § 2302(b)(10)(12)

      Pub. L. 105–339, § 6(a), added par. (11)

    3. Redesignated · 5 U.S.C. § 2302(b)(10)(12)

      Pub. L. 105–339, § 6(a), redesignated former par. (11) as (12)

    Source evidence

    Code amendment note
    Subsec. (b)(10) to (12). Pub. L. 105–339, § 6(a), struck out “or” at end of par. (10), added par. (11), and redesignated former par. (11) as (12).

    Enacted provision · exact public law section
    (a) In General.— subsection (b) of section 2302 of title 5, United States Code, is amended— (1) by striking “or” at the end of paragraph (10); (2) by redesignating paragraph (11) as paragraph (12); and (3) by inserting after paragraph (10) the following: “(11) (A) knowingly take, recommend, or approve any personnel action if the taking of such action would violate a veterans’ preference requirement; or “(B) knowingly fail to take, recommend, or approve any personnel action if the failure to take such action would violate a veterans’ preference requirement; or”.

  18. Veterans Employment Opportunities Act of 1998”

    Pub. L. 105–339 § 6(b) · 112 Stat. 3182

    Added · 5 U.S.C. § 2302(e)

    Pub. L. 105–339, § 6(b), added subsec. (e)

    Source evidence

    Code amendment note
    Subsec. (e). Pub. L. 105–339, § 6(b), added subsec. (e).

    Enacted provision · exact public law section
    (b) Definition; Limitation.— Section 2302 of title 5, United States Code, is amended by adding at the end the following: “(e) (1) For the purpose of this section, the term ‘veterans’ preference requirement’ means any of the following provisions of law: “(A) Sections 2108, 3305(b), 3309, 3310, 3311, 3312, 3313, 3314, 3315, 3316, 3317(b), 3318, 3320, 3351, 3352, 3363, 3501, 3502(b), 3504, and 4303(e) and (with respect to a preference eligible referred to in section 7511(a)(1)(B)) subchapter II of chapter 75 and section 7701. “(B) Sections 943(c)(2) and 1784(c) of title 10. “(C) Section 1308(b) of the Alaska National Interest Lands Conservation Act. “(D) Section 301(c) of the Foreign Service Act of 1980. “(E) Sections 106(f), 7281(e), and 7802(5) of title 38. “(F) Section 1005(a) of title 39. “(G) Any other provision of law that the Director of the Office of Personnel Management designates in regulations as being a veterans’ preference requirement for the purposes of this subsection. “(H) Any regulation prescribed under subsection (b) or (c) of section 1302 and any other regulation that implements a provision of law referred to in any of the preceding subparagraphs. “(2) Notwithstanding any other provision of this title, no authority to order corrective action shall be available in connection with a prohibited personnel practice described in subsection (b)(11). Nothing in this paragraph shall be considered to affect any authority under section 1215 (relating to disciplinary action).”.

  19. GAO Human Capital Reform Act of 2004

    Pub. L. 108–271 § 8(b) · 118 Stat. 811

    Substituted · 5 U.S.C. § 2302(a)(2)(C)(iii)

    Pub. L. 108–271 substituted “Government Accountability Office” for “General Accounting Office”

    Source evidence

    Code amendment note
    Subsec. (a)(2)(C)(iii). Pub. L. 108–271 substituted “Government Accountability Office” for “General Accounting Office”.

    Enacted provision · exact public law section
    (b) References.— Any reference to the General Accounting Office in any law, rule, regulation, certificate, directive, instruction, or other official paper in force on the date of enactment of this Act shall be considered to refer and apply to the Government Accountability Office.

  20. Duncan Hunter National Defense Authorization Act for Fiscal Year 2009

    Pub. L. 110–417 · 122 Stat. 4356

    Substituted · 5 U.S.C. § 2302(a)(2)(C)(ii)

    Pub. L. 110–417 substituted “National Geospatial-Intelligence Agency” for “National Imagery and Mapping Agency”

    Source evidence

    Code amendment note
    Subsec. (a)(2)(C)(ii). Pub. L. 110–417 substituted “National Geospatial-Intelligence Agency” for “National Imagery and Mapping Agency”.

  21. Whistleblower Protection Enhancement Act of 2012

    Pub. L. 112–199 § 104(a) · 126 Stat. 1465

    1. Added · 5 U.S.C. § 2302(a)(2)(A)(xi); 5 U.S.C. § 2302(a)(2)(A)(xii)

      Pub. L. 112–199, § 104(a), added cl. (xi)

    2. Redesignated · 5 U.S.C. § 2302(a)(2)(A)(xi); 5 U.S.C. § 2302(a)(2)(A)(xii)

      Pub. L. 112–199, § 104(a), redesignated former cl. (xi) as (xii)

    Source evidence

    Code amendment note
    Subsec. (a)(2)(A)(xi), (xii). Pub. L. 112–199, § 104(a), added cl. (xi) and redesignated former cl. (xi) as (xii).

    Enacted provision · exact public law section
    (a) Personnel Action.— Section 2302(a)(2)(A) of title 5, United States Code, is amended— (1) in clause (x), by striking “and” after the semicolon; and (2) by redesignating clause (xi) as clause (xii) and inserting after clause (x) the following: “(xi) the implementation or enforcement of any nondisclosure policy, form, or agreement; and” .

    Effective date note
    Amendment by Pub. L. 112–199 effective 30 days after Nov. 27, 2012, see section 202 of Pub. L. 112–199, set out as a note under section 1204 of this title.

  22. Whistleblower Protection Enhancement Act of 2012

    Pub. L. 112–199 § 101(b)(1)(B) · 126 Stat. 1465

    Inserted · 5 U.S.C. § 2302(a)(2)(C)(i)

    Pub. L. 112–199, § 101(b)(1)(B), inserted “or section 2302(b)(9)(A)(i), (B), (C), or (D)” after “(b)(8)”

    Source evidence

    Code amendment note
    Subsec. (a)(2)(C)(i). Pub. L. 112–199, § 101(b)(1)(B), inserted “or section 2302(b)(9)(A)(i), (B), (C), or (D)” after “(b)(8)”.

    Enacted provision · exact public law section
    (B) in section 2302(a)(2)(C)(i), by inserting “or section 2302(b)(9) (A)(i), (B), (C), or (D)” after “(b)(8)”.

    Effective date note
    Amendment by Pub. L. 112–199 effective 30 days after Nov. 27, 2012, see section 202 of Pub. L. 112–199, set out as a note under section 1204 of this title.

  23. Whistleblower Protection Enhancement Act of 2012

    Pub. L. 112–199 § 105 · 126 Stat. 1465

    1. Added · 5 U.S.C. § 2302(a)(2)(C)(ii)

      Pub. L. 112–199, § 105, added cl. (ii)

    2. Struck · 5 U.S.C. § 2302(a)(2)(C)(ii)

      Pub. L. 112–199, § 105, struck out former cl. (ii) which read as follows: “the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, and, as determined by the President, any Executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities; or”

    Source evidence

    Code amendment note
    Subsec. (a)(2)(C)(ii). Pub. L. 112–199, § 105, added cl. (ii) and struck out former cl. (ii) which read as follows: “the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, and, as determined by the President, any Executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities; or”.

    Enacted provision · exact public law section
    SEC. 105. EXCLUSION OF AGENCIES BY THE PRESIDENT.   Section 2302(a)(2)(C) of title 5, United States Code, is amended by striking clause (ii) and inserting the following: “(ii) (I) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office; and “(II) as determined by the President, any Executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities, provided that the determination be made prior to a personnel action; or” .

    Effective date note
    Amendment by Pub. L. 112–199 effective 30 days after Nov. 27, 2012, see section 202 of Pub. L. 112–199, set out as a note under section 1204 of this title.

  24. Whistleblower Protection Enhancement Act of 2012

    Pub. L. 112–199 § 102 · 126 Stat. 1465

    Added · 5 U.S.C. § 2302(a)(2)(D)

    Pub. L. 112–199, § 102, added subpar. (D)

    Source evidence

    Code amendment note
    Subsec. (a)(2)(D). Pub. L. 112–199, § 102, added subpar. (D).

    Enacted provision · exact public law section
    SEC. 102. DEFINITIONAL AMENDMENTS.   Section 2302(a)(2) of title 5, United States Code, is amended— (1) in subparagraph (B)(ii), by striking “and” at the end; (2) in subparagraph (C)(iii), by striking the period at the end and inserting “; and”; and (3) by adding at the end the following: “(D) ‘disclosure’ means a formal or informal communication or transmission, but does not include a communication concerning policy decisions that lawfully exercise discretionary authority unless the employee or applicant providing the disclosure reasonably believes that the disclosure evidences— “(i) any violation of any law, rule, or regulation; or “(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” .

    Effective date note
    Amendment by Pub. L. 112–199 effective 30 days after Nov. 27, 2012, see section 202 of Pub. L. 112–199, set out as a note under section 1204 of this title.

  25. Whistleblower Protection Enhancement Act of 2012

    Pub. L. 112–199 § 103 · 126 Stat. 1465

    Amended · 5 U.S.C. § 2302(b)

    Pub. L. 112–199, § 103, amended concluding provisions generally. Prior to amendment, concluding provisions read as follows: “This subsection shall not be construed to authorize the withholding of information from the Congress or the taking of any personnel action against an employee who discloses information to the Congress.”

    Source evidence

    Code amendment note
    Subsec. (b). Pub. L. 112–199, § 103, amended concluding provisions generally. Prior to amendment, concluding provisions read as follows: “This subsection shall not be construed to authorize the withholding of information from the Congress or the taking of any personnel action against an employee who discloses information to the Congress.”

    Enacted provision · exact public law section
    SEC. 103. REBUTTABLE PRESUMPTION.   Section 2302(b) of title 5, United States Code, is amended by amending the matter following paragraph (12) to read as follows: “This subsection shall not be construed to authorize the withholding of information from Congress or the taking of any personnel action against an employee who discloses Determination. information to Congress. For purposes of paragraph (8), (i) any presumption relating to the performance of a duty by an employee whose conduct is the subject of a disclosure as defined under subsection (a)(2)(D) may be rebutted by substantial evidence, and (ii) a determination as to whether an employee or applicant reasonably believes that such employee or applicant has disclosed information that evidences any violation of law, rule, regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety shall be made by determining whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee or applicant could reasonably conclude that the actions of the Government evidence such violations, mismanagement, waste, abuse, or danger.” .

    Effective date note
    Amendment by Pub. L. 112–199 effective 30 days after Nov. 27, 2012, see section 202 of Pub. L. 112–199, set out as a note under section 1204 of this title.

  26. Whistleblower Protection Enhancement Act of 2012

    Pub. L. 112–199 § 101(a)(1) · 126 Stat. 1465

    Substituted · 5 U.S.C. § 2302(b)(8)(A)(i)

    Pub. L. 112–199, § 101(a)(1), substituted “any violation” for “a violation”

    Source evidence

    Code amendment note
    Subsec. (b)(8)(A)(i). Pub. L. 112–199, § 101(a)(1), substituted “any violation” for “a violation”.

    Enacted provision · exact public law section
    (1) in subparagraph (A)(i), by striking “a violation” and inserting “any violation”; and

    Effective date note
    Amendment by Pub. L. 112–199 effective 30 days after Nov. 27, 2012, see section 202 of Pub. L. 112–199, set out as a note under section 1204 of this title.

  27. Whistleblower Protection Enhancement Act of 2012

    Pub. L. 112–199 § 101(a)(2) · 126 Stat. 1465

    Substituted · 5 U.S.C. § 2302(b)(8)(B)(i)

    Pub. L. 112–199, § 101(a)(2), substituted “any violation (other than a violation of this section)” for “a violation”

    Source evidence

    Code amendment note
    Subsec. (b)(8)(B)(i). Pub. L. 112–199, § 101(a)(2), substituted “any violation (other than a violation of this section)” for “a violation”.

    Enacted provision · exact public law section
    (2) in subparagraph (B)(i), by striking “a violation” and inserting “any violation (other than a violation of this section)”.

    Effective date note
    Amendment by Pub. L. 112–199 effective 30 days after Nov. 27, 2012, see section 202 of Pub. L. 112–199, set out as a note under section 1204 of this title.

  28. Whistleblower Protection Enhancement Act of 2012

    Pub. L. 112–199 § 101(b)(2)(B)(i) · 126 Stat. 1465

    1. Added · 5 U.S.C. § 2302(b)(9)(A)

      Pub. L. 112–199, § 101(b)(2)(B)(i), added subpar. (A)

    2. Struck · 5 U.S.C. § 2302(b)(9)(A)

      Pub. L. 112–199, § 101(b)(2)(B)(i), struck out former subpar. (A) read as follows: “the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;”

    Source evidence

    Code amendment note
    Subsec. (b)(9)(A). Pub. L. 112–199, § 101(b)(2)(B)(i), added subpar. (A) and struck out former subpar. (A) read as follows: “the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;”.

    Enacted provision · exact public law section
    (i) by striking subparagraph (A) and inserting the following: “(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation— “(i) with regard to remedying a violation of paragraph (8); or “(ii) other than with regard to remedying a violation of paragraph (8);” ; and

    Effective date note
    Amendment by Pub. L. 112–199 effective 30 days after Nov. 27, 2012, see section 202 of Pub. L. 112–199, set out as a note under section 1204 of this title.

  29. Whistleblower Protection Enhancement Act of 2012

    Pub. L. 112–199 § 101(b)(2)(B)(ii) · 126 Stat. 1465

    Inserted · 5 U.S.C. § 2302(b)(9)(B)

    Pub. L. 112–199, § 101(b)(2)(B)(ii), inserted “(i) or (ii)” after “subparagraph (A)”

    Source evidence

    Code amendment note
    Subsec. (b)(9)(B). Pub. L. 112–199, § 101(b)(2)(B)(ii), inserted “(i) or (ii)” after “subparagraph (A)”.

    Enacted provision · exact public law section
    (ii) in subparagraph (B), by inserting “(i) or (ii)” after “subparagraph (A)”.

    Effective date note
    Amendment by Pub. L. 112–199 effective 30 days after Nov. 27, 2012, see section 202 of Pub. L. 112–199, set out as a note under section 1204 of this title.

  30. Whistleblower Protection Enhancement Act of 2012

    Pub. L. 112–199 § 104(b)(1) · 126 Stat. 1465

    Added · 5 U.S.C. § 2302(b)(13)

    Pub. L. 112–199, § 104(b)(1), added par. (13)

    Source evidence

    Code amendment note
    Subsec. (b)(13). Pub. L. 112–199, § 104(b)(1), added par. (13).

    Enacted provision · exact public law section
    (1) In general.— Section 2302(b) of title 5, United States Code, is amended— (A) in paragraph (11), by striking “or” at the end; (B) in paragraph (12), by striking the period and inserting “; or”; and (C) by inserting after paragraph (12) the following: “(13) implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement does not contain the following statement: ‘These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.’.” .

    Effective date note
    Amendment by Pub. L. 112–199 effective 30 days after Nov. 27, 2012, see section 202 of Pub. L. 112–199, set out as a note under section 1204 of this title.

  31. Whistleblower Protection Enhancement Act of 2012

    Pub. L. 112–199 § 112 · 126 Stat. 1465

    Inserted · 5 U.S.C. § 2302(c)

    Pub. L. 112–199, § 112, inserted “, including how to make a lawful disclosure of information that is specifically required by law or Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs to the Special Counsel, the Inspector General of an agency, Congress, or other agency employee designated to receive such disclosures” after “chapter 12 of this title”

    Source evidence

    Code amendment note
    Subsec. (c). Pub. L. 112–199, § 112, inserted “, including how to make a lawful disclosure of information that is specifically required by law or Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs to the Special Counsel, the Inspector General of an agency, Congress, or other agency employee designated to receive such disclosures” after “chapter 12 of this title”.

    Enacted provision · exact public law section
    SEC. 112. ADVISING EMPLOYEES OF RIGHTS.   Section 2302(c) of title 5, United States Code, is amended by inserting “, including how to make a lawful disclosure of information that is specifically required by law or Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs to the Special Counsel, the Inspector General of an agency, Congress, or other agency employee designated to receive such disclosures” after “chapter 12 of this title”.

    Effective date note
    Amendment by Pub. L. 112–199 effective 30 days after Nov. 27, 2012, see section 202 of Pub. L. 112–199, set out as a note under section 1204 of this title.

  32. Whistleblower Protection Enhancement Act of 2012

    Pub. L. 112–199 § 101(b)(2)(C) · 126 Stat. 1465

    Added · 5 U.S.C. § 2302(f)

    Pub. L. 112–199, § 101(b)(2)(C), added subsec. (f)

    Source evidence

    Code amendment note
    Subsec. (f). Pub. L. 112–199, § 101(b)(2)(C), added subsec. (f).

    Enacted provision · exact public law section
    (C) Section 2302 of title 5, United States Code, is amended by adding at the end the following: “(f) (1) A disclosure shall not be excluded from subsection (b)(8) because— “(A) the disclosure was made to a supervisor or to a person who participated in an activity that the employee or applicant reasonably believed to be covered by subsection (b)(8)(A)(i) and (ii); “(B) the disclosure revealed information that had been previously disclosed; “(C) of the employee’s or applicant’s motive for making the disclosure; “(D) the disclosure was not made in writing; “(E) the disclosure was made while the employee was off duty; or “(F) of the amount of time which has passed since the occurrence of the events described in the disclosure. “(2) If a disclosure is made during the normal course of duties of an employee, the disclosure shall not be excluded from subsection (b)(8) if any employee who has authority to take, direct others to take, recommend, or approve any personnel action with respect to the employee making the disclosure, took, failed to take, or threatened to take or fail to take a personnel action with respect to that employee in reprisal for the disclosure.” .

    Effective date note
    Amendment by Pub. L. 112–199 effective 30 days after Nov. 27, 2012, see section 202 of Pub. L. 112–199, set out as a note under section 1204 of this title.

  33. Intelligence Authorization Act for Fiscal Year 2013

    Pub. L. 112–277 title V § 505(a) · 126 Stat. 2468

    1. Added · 5 U.S.C. § 2302(a)(2)(C)(ii)

      Pub. L. 112–277 added cl. (ii)

    2. Struck · 5 U.S.C. § 2302(a)(2)(C)(ii)

      Pub. L. 112–277 struck out former cl. (ii) which read as follows:

    Source evidence

    Code amendment note
    Subsec. (a)(2)(C)(ii). Pub. L. 112–277 added cl. (ii) and struck out former cl. (ii) which read as follows:

    “(I) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office; and “(II) as determined by the President, any Executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities, provided that the determination be made prior to a personnel action; or”.

    Enacted provision · exact public law section
    (a) Personnel Practices.— Section 2302(a)(2)(C) of title 5, United States Code, is amended by striking clause (ii) and inserting the following: “(ii) (I) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office; and “(II) as determined by the President, any executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities, provided that the determination be made prior to a personnel action; or” .

  34. Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2016

    Pub. L. 114–113 div. J title II § 238 · 129 Stat. 2242

    Inserted · 5 U.S.C. § 2302(a)(2)(A)(viii)

    Pub. L. 114–113 inserted “or under title 38” after “chapter 43 of this title”

    Source evidence

    Code amendment note
    Subsec. (a)(2)(A)(viii). Pub. L. 114–113 inserted “or under title 38” after “chapter 43 of this title”.

    Enacted provision · exact public law section
    Sec. 238. Section 2302(a)(2)(A)(viii) of title 5, United States Code, is amended by inserting “or under title 38” after “of this title”.

  35. Follow the Rules Act

    Pub. L. 115–40 § 2 · 131 Stat. 861

    Struck and inserted · 5 U.S.C. § 2302(b)(9)(D)

    Pub. L. 115–40 struck out “for” after “(D)” and inserted “, rule, or regulation” after “a law”

    Source evidence

    Code amendment note
    Subsec. (b)(9)(D). Pub. L. 115–40 struck out “for” after “(D)” and inserted “, rule, or regulation” after “a law”.

    Enacted provision · exact public law section
    SEC. 2. PROHIBITED PERSONNEL ACTION BASED ON ORDERING INDIVIDUAL TO VIOLATE RULE OR REGULATION. (a) In General.— Subparagraph (D) of section 2302(b)(9) of title 5, United States Code, is amended by inserting “, rule, or regulation” after “law”. (b) Technical Correction.— Such subparagraph is further amended by striking “for”.

  36. Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017

    Pub. L. 115–73 § 103 · 131 Stat. 1235

    Added · 5 U.S.C. § 2302(b)(14)

    Pub. L. 115–73, § 103, added par. (14)

    Source evidence

    Code amendment note
    Subsec. (b)(14). Pub. L. 115–73, § 103, added par. (14).

    Enacted provision · exact public law section
    SEC. 103. PROHIBITED PERSONNEL PRACTICES.   Section 2302(b) of title 5, United States Code, is amended— (1) in paragraph (12), by striking “or” at the end; (2) in paragraph (13), by striking the period at the end and inserting “; or”; and (3) by inserting after paragraph (13) the following: “(14) access the medical record of another employee or an applicant for employment as a part of, or otherwise in furtherance of, any conduct described in paragraphs (1) through (13).” .

  37. Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017

    Pub. L. 115–73 § 107(a)(1) · 131 Stat. 1235

    1. Redesignated · 5 U.S.C. § 2302(c)(f)

      Pub. L. 115–73, § 107(a)(1), redesignated subsecs. (d) to (f) as (c) to (e), respectively

    2. Struck · 5 U.S.C. § 2302(c)(f)

      Pub. L. 115–73, § 107(a)(1), struck out former subsec. (c) which read as follows: “The head of each agency shall be responsible for the prevention of prohibited personnel practices, for the compliance with and enforcement of applicable civil service laws, rules, and regulations, and other aspects of personnel management, and for ensuring (in consultation with the Office of Special Counsel) that agency employees are informed of the rights and remedies available to them under this chapter and chapter 12 of this title, including how to make a lawful disclosure of information that is specifically required by law or Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs to the Special Counsel, the Inspector General of an agency, Congress, or other agency employee designated to receive such disclosures. Any individual to whom the head of an agency delegates authority for personnel management, or for any aspect thereof, shall be similarly responsible within the limits of the delegation.”

    Target inherited from the preceding amendment note.

    Source evidence

    Code amendment note
    Pub. L. 115–73, § 107(a)(1), redesignated subsecs. (d) to (f) as (c) to (e), respectively, and struck out former subsec. (c) which read as follows: “The head of each agency shall be responsible for the prevention of prohibited personnel practices, for the compliance with and enforcement of applicable civil service laws, rules, and regulations, and other aspects of personnel management, and for ensuring (in consultation with the Office of Special Counsel) that agency employees are informed of the rights and remedies available to them under this chapter and chapter 12 of this title, including how to make a lawful disclosure of information that is specifically required by law or Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs to the Special Counsel, the Inspector General of an agency, Congress, or other agency employee designated to receive such disclosures. Any individual to whom the head of an agency delegates authority for personnel management, or for any aspect thereof, shall be similarly responsible within the limits of the delegation.”

    Enacted provision · exact public law section
    (1) In general.— Section 2302 of title 5, United States Code, is amended— (A) by striking subsection (c); and (B) by redesignating subsections (d), (e), and (f) as subsections (c), (d), and (e), respectively.

  38. National Defense Authorization Act for Fiscal Year 2018

    Pub. L. 115–91 § 1097(c)(1)(A) · 131 Stat. 1283

    Inserted · 5 U.S.C. § 2302(b)(9)(C)

    Pub. L. 115–91, § 1097(c)(1)(A), inserted “(or any other component responsible for internal investigation or review)” after “Inspector General”

    Source evidence

    Code amendment note
    Subsec. (b)(9)(C). Pub. L. 115–91, § 1097(c)(1)(A), inserted “(or any other component responsible for internal investigation or review)” after “Inspector General”.

    Enacted provision · exact public law section
    (A) in subsection (b)(9)(C), by inserting “(or any other component responsible for internal investigation or review)” after “Inspector General”; and

  39. National Defense Authorization Act for Fiscal Year 2018

    Pub. L. 115–91 § 1097(b)(1)(B) · 131 Stat. 1283

    1. Added · 5 U.S.C. § 2302(c)(f)

      Pub. L. 115–91, § 1097(b)(1)(B), added subsec. (c)

    2. Redesignated · 5 U.S.C. § 2302(c)(f)

      Pub. L. 115–91, § 1097(b)(1)(B), redesignated former subsecs. (c) to (e) as (d) to (f), respectively

    Source evidence

    Code amendment note
    Subsecs. (c) to (f). Pub. L. 115–91, § 1097(b)(1)(B), added subsec. (c) and redesignated former subsecs. (c) to (e) as (d) to (f), respectively.

    Enacted provision · exact public law section
    (B) Information on whistleblower protections.— Section 2302 of title 5, United States Code, is amended by— (i) redesignating subsections (c), (d), and (e) as subsections (d), (e), and (f), respectively; and (ii) by inserting after subsection (b) the following: “(c) (1) In this subsection— “(A) the term ‘new employee’ means an individual— “(i) appointed to a position as an employee on or after the date of enactment of this subsection; and “(ii) who has not previously served as an employee; and “(B) the term ‘whistleblower protections’ means the protections against and remedies for a prohibited personnel practice described in paragraph (8) or subparagraph (A)(i), (B), (C), or (D) of paragraph (9) of subsection (b). “(2) The head of each agency shall be responsible for— “(A) preventing prohibited personnel practices; “(B) complying with and enforcing applicable civil service laws, rules, and regulations and other aspects of personnel management; and “(C) ensuring, in consultation with the Special Counsel and the Inspector General of the agency, that employees of the agency are informed of the rights and remedies available to the employees under this chapter and chapter 12, including— “(i) information with respect to whistleblower protections available to new employees during a probationary period; “(ii) the role of the Office of Special Counsel and the Merit Systems Protection Board with respect to whistleblower protections; and “(iii) the means by which, with respect to information that is otherwise required by law or Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs, an employee may make a lawful disclosure of the information to— “(I) the Special Counsel; “(II) the Inspector General of an agency; “(III) Congress; or “(IV) another employee of the agency who is designated to receive such a disclosure. “(3) The head of each agency shall ensure that the information described in paragraph (2) is provided to each new employee of the agency not later than 180 days after the date on which the new employee is appointed. “(4) The head of each agency shall make available information regarding whistleblower protections applicable to employees of the agency on the public website of the agency and on any online portal that is made available only to employees of the agency, if such portal exists. “(5) Any employee to whom the head of an agency delegates authority for any aspect of personnel management shall, within the limits of the scope of the delegation, be responsible for the activities described in paragraph (2).” .

  40. National Defense Authorization Act for Fiscal Year 2018

    Pub. L. 115–91 § 1097(c)(1)(B)(i) · 131 Stat. 1283

    1. Added · 5 U.S.C. § 2302(f)(1)(F); 5 U.S.C. § 2302(f)(1)(G)

      Pub. L. 115–91, § 1097(c)(1)(B)(i), added subpar. (F)

    2. Redesignated · 5 U.S.C. § 2302(f)(1)(F); 5 U.S.C. § 2302(f)(1)(G)

      Pub. L. 115–91, § 1097(c)(1)(B)(i), redesignated former subpar. (F) as (G)

    Source evidence

    Code amendment note
    Subsec. (f)(1)(F), (G). Pub. L. 115–91, § 1097(c)(1)(B)(i), added subpar. (F) and redesignated former subpar. (F) as (G).

    Enacted provision · exact public law section
    (i) in paragraph (1)— (I) in subparagraph (E), by striking “or” at the end; (II) by redesignating subparagraph (F) as subparagraph (G); and (III) by inserting after subparagraph (E) the following: “(F) the disclosure was made before the date on which the individual was appointed or applied for appointment to a position; or” ; and

  41. National Defense Authorization Act for Fiscal Year 2018

    Pub. L. 115–91 § 1097(c)(1)(B)(ii) · 131 Stat. 1283

    1. Added · 5 U.S.C. § 2302(f)(2)

      Pub. L. 115–91, § 1097(c)(1)(B)(ii), added par. (2)

    2. Struck · 5 U.S.C. § 2302(f)(2)

      Pub. L. 115–91, § 1097(c)(1)(B)(ii), struck out former par. (2) which read as follows: “If a disclosure is made during the normal course of duties of an employee, the disclosure shall not be excluded from subsection (b)(8) if any employee who has authority to take, direct others to take, recommend, or approve any personnel action with respect to the employee making the disclosure, took, failed to take, or threatened to take or fail to take a personnel action with respect to that employee in reprisal for the disclosure.”

    Source evidence

    Code amendment note
    Subsec. (f)(2). Pub. L. 115–91, § 1097(c)(1)(B)(ii), added par. (2) and struck out former par. (2) which read as follows: “If a disclosure is made during the normal course of duties of an employee, the disclosure shall not be excluded from subsection (b)(8) if any employee who has authority to take, direct others to take, recommend, or approve any personnel action with respect to the employee making the disclosure, took, failed to take, or threatened to take or fail to take a personnel action with respect to that employee in reprisal for the disclosure.”

    Enacted provision · exact public law section
    (ii) by striking paragraph (2) and inserting the following: “(2) If a disclosure is made during the normal course of duties of an employee, the principal job function of whom is to regularly investigate and disclose wrongdoing (referred to in this paragraph as the ‘disclosing employee’), the disclosure shall not be excluded from subsection (b)(8) if the disclosing employee demonstrates that an employee who has the authority to take, direct other individuals to take, recommend, or approve any personnel action with respect to the disclosing employee took, failed to take, or threatened to take or fail to take a personnel action with respect to the disclosing employee in reprisal for the disclosure made by the disclosing employee.” .

  42. National Defense Authorization Act for Fiscal Year 2020

    Pub. L. 116–92 § 5721(1) · 133 Stat. 1198

    Added · 5 U.S.C. § 2302(b)(8)(C)

    Pub. L. 116–92, § 5721(1), added subpar. (C)

    Source evidence

    Code amendment note
    Subsec. (b)(8)(C). Pub. L. 116–92, § 5721(1), added subpar. (C).

  43. National Defense Authorization Act for Fiscal Year 2020

    Pub. L. 116–92 § 5721(2) · 133 Stat. 1198

    Inserted · 5 U.S.C. § 2302(c)(2)(C)(iii)(III)

    Pub. L. 116–92, § 5721(2), inserted “(including any committee of Congress with respect to information that is not classified or, if classified, has been classified by the head of an agency that is not an element of the intelligence community and does not reveal intelligence sources and methods)” after “Congress”

    Source evidence

    Code amendment note
    Subsec. (c)(2)(C)(iii)(III). Pub. L. 116–92, § 5721(2), inserted “(including any committee of Congress with respect to information that is not classified or, if classified, has been classified by the head of an agency that is not an element of the intelligence community and does not reveal intelligence sources and methods)” after “Congress”.

  44. Elijah E. Cummings Federal Employee Antidiscrimination Act of 2020

    Pub. L. 116–283 div. A title XI § 1138 · 134 Stat. 3388

    1. Substituted · 5 U.S.C. § 2302(b)(13)

      Pub. L. 116–283 substituted “agreement—” for “agreement”

    2. Amended · 5 U.S.C. § 2302(b)(13)

      Pub. L. 116–283 designated remainder of existing provisions as subpar. (A)

    3. Inserted · 5 U.S.C. § 2302(b)(13)

      Pub. L. 116–283 inserted “or the Office of Special Counsel” after “Inspector General”

    4. Added · 5 U.S.C. § 2302(b)(13)

      Pub. L. 116–283 added subpar. (B)

    Source evidence

    Code amendment note
    Subsec. (b)(13). Pub. L. 116–283 substituted “agreement—” for “agreement”, designated remainder of existing provisions as subpar. (A), inserted “or the Office of Special Counsel” after “Inspector General”, and added subpar. (B).

    Enacted provision · exact public law section
    SEC. 1138. NONDISCLOSURE AGREEMENT LIMITATION.   Section 2302(b)(13) of title 5, United States Code, is amended— (1) by striking “agreement does not” and inserting the following: “agreement— “(A) does not” ; (2) in subparagraph (A), as so designated, by inserting “or the Office of Special Counsel” after “Inspector General”; and (3) by adding at the end the following: “(B) prohibits or restricts an employee or applicant for employment from disclosing to Congress, the Special Counsel, the Inspector General of an agency, or any other agency component responsible for internal investigation or review any information that relates to any violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or any other whistleblower protection; or” .

57 of 60 references resolved to an enrolled provision · 3 partial

Editorial Notes

References in Text

Section 1308(b) of the Alaska National Interest Lands Conservation Act, referred to in subsec. (e)(1)(C), is classified to section 3198(b) of Title 16, Conservation.

Section 301(c) of the Foreign Service Act of 1980, referred to in subsec. (e)(1)(D), is classified to section 3941(c) of Title 22, Foreign Relations and Intercourse.

Section 106(f) of title 38, referred to in subsec. (e)(1)(E), was enacted subsequent to the enactment of subsec. (e) of this section.

Section 7802(5) of title 38, referred to in subsec. (e)(1)(E), was redesignated section 7802(e) of title 38 by Pub. L. 108–170, title III, § 304(b)(3), , 117 Stat. 2059.

Amendments1989–2021 · 15 rounds

2021

Subsec. (b)(13). Pub. L. 116–283 substituted “agreement—” for “agreement”, designated remainder of existing provisions as subpar. (A), inserted “or the Office of Special Counsel” after “Inspector General”, and added subpar. (B).

2019

Subsec. (b)(8)(C). Pub. L. 116–92, § 5721(1), added subpar. (C).

Subsec. (c)(2)(C)(iii)(III). Pub. L. 116–92, § 5721(2), inserted “(including any committee of Congress with respect to information that is not classified or, if classified, has been classified by the head of an agency that is not an element of the intelligence community and does not reveal intelligence sources and methods)” after “Congress”.

2017

Subsec. (b)(9)(C). Pub. L. 115–91, § 1097(c)(1)(A), inserted “(or any other component responsible for internal investigation or review)” after “Inspector General”.

Subsec. (b)(9)(D). Pub. L. 115–40 struck out “for” after “(D)” and inserted “, rule, or regulation” after “a law”.

Subsec. (b)(14). Pub. L. 115–73, § 103, added par. (14).

Subsecs. (c) to (f). Pub. L. 115–91, § 1097(b)(1)(B), added subsec. (c) and redesignated former subsecs. (c) to (e) as (d) to (f), respectively.

Pub. L. 115–73, § 107(a)(1), redesignated subsecs. (d) to (f) as (c) to (e), respectively, and struck out former subsec. (c) which read as follows: “The head of each agency shall be responsible for the prevention of prohibited personnel practices, for the compliance with and enforcement of applicable civil service laws, rules, and regulations, and other aspects of personnel management, and for ensuring (in consultation with the Office of Special Counsel) that agency employees are informed of the rights and remedies available to them under this chapter and chapter 12 of this title, including how to make a lawful disclosure of information that is specifically required by law or Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs to the Special Counsel, the Inspector General of an agency, Congress, or other agency employee designated to receive such disclosures. Any individual to whom the head of an agency delegates authority for personnel management, or for any aspect thereof, shall be similarly responsible within the limits of the delegation.”

Subsec. (f)(1)(F), (G). Pub. L. 115–91, § 1097(c)(1)(B)(i), added subpar. (F) and redesignated former subpar. (F) as (G).

Subsec. (f)(2). Pub. L. 115–91, § 1097(c)(1)(B)(ii), added par. (2) and struck out former par. (2) which read as follows: “If a disclosure is made during the normal course of duties of an employee, the disclosure shall not be excluded from subsection (b)(8) if any employee who has authority to take, direct others to take, recommend, or approve any personnel action with respect to the employee making the disclosure, took, failed to take, or threatened to take or fail to take a personnel action with respect to that employee in reprisal for the disclosure.”

2015

Subsec. (a)(2)(A)(viii). Pub. L. 114–113 inserted “or under title 38” after “chapter 43 of this title”.

2013

Subsec. (a)(2)(C)(ii). Pub. L. 112–277 added cl. (ii) and struck out former cl. (ii) which read as follows:

“(I) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office; and

“(II) as determined by the President, any Executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities, provided that the determination be made prior to a personnel action; or”.

2012

Subsec. (a)(2)(A)(xi), (xii). Pub. L. 112–199, § 104(a), added cl. (xi) and redesignated former cl. (xi) as (xii).

Subsec. (a)(2)(C)(i). Pub. L. 112–199, § 101(b)(1)(B), inserted “or section 2302(b)(9)(A)(i), (B), (C), or (D)” after “(b)(8)”.

Subsec. (a)(2)(C)(ii). Pub. L. 112–199, § 105, added cl. (ii) and struck out former cl. (ii) which read as follows: “the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, and, as determined by the President, any Executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities; or”.

Subsec. (a)(2)(D). Pub. L. 112–199, § 102, added subpar. (D).

Subsec. (b). Pub. L. 112–199, § 103, amended concluding provisions generally. Prior to amendment, concluding provisions read as follows: “This subsection shall not be construed to authorize the withholding of information from the Congress or the taking of any personnel action against an employee who discloses information to the Congress.”

Subsec. (b)(8)(A)(i). Pub. L. 112–199, § 101(a)(1), substituted “any violation” for “a violation”.

Subsec. (b)(8)(B)(i). Pub. L. 112–199, § 101(a)(2), substituted “any violation (other than a violation of this section)” for “a violation”.

Subsec. (b)(9)(A). Pub. L. 112–199, § 101(b)(2)(B)(i), added subpar. (A) and struck out former subpar. (A) read as follows: “the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;”.

Subsec. (b)(9)(B). Pub. L. 112–199, § 101(b)(2)(B)(ii), inserted “(i) or (ii)” after “subparagraph (A)”.

Subsec. (b)(13). Pub. L. 112–199, § 104(b)(1), added par. (13).

Subsec. (c). Pub. L. 112–199, § 112, inserted “, including how to make a lawful disclosure of information that is specifically required by law or Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs to the Special Counsel, the Inspector General of an agency, Congress, or other agency employee designated to receive such disclosures” after “chapter 12 of this title”.

Subsec. (f). Pub. L. 112–199, § 101(b)(2)(C), added subsec. (f).

2008

Subsec. (a)(2)(C)(ii). Pub. L. 110–417 substituted “National Geospatial-Intelligence Agency” for “National Imagery and Mapping Agency”.

2004

Subsec. (a)(2)(C)(iii). Pub. L. 108–271 substituted “Government Accountability Office” for “General Accounting Office”.

1998

Subsec. (a)(1). Pub. L. 105–339, § 6(c)(2), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “For purposes of this title, ‘prohibited personnel practice’ means the following:

“(A) Any action described in subsection (b) of this section.

“(B) Any action or failure to act that is designated as a prohibited personnel action under section 1599c(a) of title 10.”

Subsec. (b)(10) to (12). Pub. L. 105–339, § 6(a), struck out “or” at end of par. (10), added par. (11), and redesignated former par. (11) as (12).

Subsec. (e). Pub. L. 105–339, § 6(b), added subsec. (e).

1996

Subsec. (a)(1). Pub. L. 104–201, § 1615(b), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “For the purpose of this title, ‘prohibited personnel practice’ means any action described in subsection (b) of this section.”

Subsec. (a)(2)(C)(ii). Pub. L. 104–201, § 1122(a)(1), substituted “National Imagery and Mapping Agency” for “Central Imagery Office”.

Subsec. (b)(2). Pub. L. 104–197 amended par. (2) generally. Prior to amendment, par. (2) read as follows: “solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action except as provided under section 3303(f);”.

1994

Subsec. (a)(2)(A). Pub. L. 103–424, § 5(a)(3), in concluding provisions, inserted before semicolon “, and in the case of an alleged prohibited personnel practice described in subsection (b)(8), an employee or applicant for employment in a Government corporation as defined in section 9101 of title 31”.

Subsec. (a)(2)(A)(x), (xi). Pub. L. 103–424, § 5(a)(1), (2), added cls. (x) and (xi) and struck out former cl. (x) which read as follows: “any other significant change in duties or responsibilities which is inconsistent with the employee’s salary or grade level;”.

Subsec. (a)(2)(B). Pub. L. 103–424, § 5(b), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: “ ‘covered position’ means any position in the competitive service, a career appointee position in the Senior Executive Service, or a position in the excepted service, but does not include—

“(i) a position which is excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character; or

“(ii) any position excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good administration.”

Subsec. (a)(2)(C)(i). Pub. L. 103–424, § 5(c), inserted before semicolon “, except in the case of an alleged prohibited personnel practice described under subsection (b)(8)”.

Subsec. (a)(2)(C)(ii). Pub. L. 103–359 inserted “the Central Imagery Office,” after “Defense Intelligence Agency,”.

Subsec. (c). Pub. L. 103–424, § 5(d), inserted before period at end of first sentence “, and for ensuring (in consultation with the Office of Special Counsel) that agency employees are informed of the rights and remedies available to them under this chapter and chapter 12 of this title”.

1993

Subsec. (b)(2). Pub. L. 103–94 amended par. (2) generally. Prior to amendment, par. (2) read as follows: “solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action unless such recommendation or statement is based on the personal knowledge or records of the person furnishing it and consists of—

“(A) an evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or

“(B) an evaluation of the character, loyalty, or suitability of such individual;”.

1992

Subsec. (b)(8)(B). Pub. L. 102–378 substituted “Special Counsel” for “Special Counsel of the Merit Systems Protection Board”.

1990

Subsec. (a)(2)(C). Pub. L. 101–474 struck out “, the Administrative Office of the United States Courts,” after “means an Executive agency”.

1989

Subsec. (b)(8). Pub. L. 101–12, § 4(a), in introductory provision inserted “, or threaten to take or fail to take,” after “fail to” and substituted “because of” for “as a reprisal for”, in subpar. (A) substituted “any disclosure” for “a disclosure”, in subpar. (A)(ii) inserted “gross” before “mismanagement”, in subpar. (B) substituted “any disclosure” for “a disclosure”, and in subpar. (B)(ii) inserted “gross” before “mismanagement”.

Subsec. (b)(9). Pub. L. 101–12, § 4(b), amended par. (9) generally. Prior to amendment, par. (9) read as follows: “take or fail to take any personnel action against any employee or applicant for employment as a reprisal for the exercise of any appeal right granted by any law, rule, or regulation;”.

Statutory Notes and Related Subsidiaries

Change of Name

“Government Publishing Office” substituted for “Government Printing Office” in subsec. (a)(2)(C) on authority of section 1301(b) of Pub. L. 113–235, set out as a note preceding section 301 of Title 44, Public Printing and Documents.

Effective Date of 2012 Amendment

Amendment by Pub. L. 112–199 effective 30 days after , see section 202 of Pub. L. 112–199, set out as a note under section 1204 of this title.

Effective Date of 1996 Amendment

Amendment by section 1122(a)(1) of Pub. L. 104–201 effective , see section 1124 of Pub. L. 104–201, set out as a note under section 193 of Title 10, Armed Forces.

Pub. L. 104–197, title III, § 315(c), , 110 Stat. 2416, provided that: “This section [amending this section and section 3303 of this title] shall take effect 30 days after the date of the enactment of this Act [].”

Effective Date of 1993 Amendment; Savings Provision

Amendment by Pub. L. 103–94 effective 120 days after , but not to release or extinguish any penalty, forfeiture, or liability incurred under amended provision, which is to be treated as remaining in force for purpose of sustaining any proper proceeding or action for enforcement of that penalty, forfeiture, or liability, and no provision of Pub. L. 103–94 to affect any proceedings with respect to which charges were filed on or before 120 days after , with orders to be issued in such proceedings and appeals taken therefrom as if Pub. L. 103–94 had not been enacted, see section 12 of Pub. L. 103–94, set out as an Effective Date; Savings Provision note under section 7321 of this title.

Effective Date of 1989 Amendment

Amendment by Pub. L. 101–12 effective 90 days following , see section 11 of Pub. L. 101–12, set out as a note under section 1201 of this title.

Savings Provision

Pub. L. 112–199, title II, § 201, , 126 Stat. 1475, provided that: “Nothing in this Act [see section 1 of Pub. L. 112–199, set out as a Short Title of 2012 Amendment note under section 101 of this title] shall be construed to imply any limitation on any protections afforded by any other provision of law to employees and applicants.”

Pub. L. 105–339, § 6(d), , 112 Stat. 3188, provided that: “This section [amending this section and repealing section 1599c of Title 10, Armed Forces] shall be treated as if it had never been enacted for purposes of any personnel action (within the meaning of section 2302 of title 5, United States Code) preceding the date of enactment of this Act [].”

Agency Websites

Pub. L. 112–199, title I, § 104(b)(2), , 126 Stat. 1467, provided that: “Agencies making use of any nondisclosure policy, form, or agreement shall also post the statement required under section 2302(b)(13) of title 5, United States Code (as added by this Act) on the agency website, accompanied by the specific list of controlling Executive orders and statutory provisions.”

Nondisclosure Policy, Form, or Agreement in Effect Before the Effective Date

Pub. L. 112–199, title I, § 104(b)(3), , 126 Stat. 1467, provided that:

“With respect to a nondisclosure policy, form, or agreement that was in effect before the effective date of this Act [see Effective Date of 2012 Amendment note above], but that does not contain the statement required under section 2302(b)(13) of title 5, United States Code (as added by this Act) for implementation or enforcement—

“(A)

it shall not be a prohibited personnel practice to enforce that policy, form, or agreement with regard to a current employee if the agency gives such employee notice of the statement; and

“(B)

it shall not be a prohibited personnel practice to enforce that policy, form, or agreement after the effective date of this Act with regard to a former employee if the agency complies with paragraph (2) of this subsection [set out as a note above].”

Disclosure of Censorship Related to Research, Analysis, or Technical Information

Pub. L. 112–199, title I, § 110, , 126 Stat. 1471, as amended by Pub. L. 115–73, title I, § 107(a)(2)(C), , 131 Stat. 1239; Pub. L. 115–91, div. A, title X, § 1097(b)(3)(C), , 131 Stat. 1618, provided that:

“(a)

Definitions.—

In this subsection—

“(1)

the term ‘agency’ has the meaning given under section 2302(a)(2)(C) of title 5, United States Code;

“(2)

the term ‘applicant’ means an applicant for a covered position;

“(3)

the term ‘censorship related to research, analysis, or technical information’ means any effort to distort, misrepresent, or suppress research, analysis, or technical information;

“(4)

the term ‘covered position’ has the meaning given under section 2302(a)(2)(B) of title 5, United States Code;

“(5)

the term ‘employee’ means an employee in a covered position in an agency; and

“(6)

the term ‘disclosure’ has the meaning given under section 2302(a)(2)(D) of title 5, United States Code.

“(b)

Protected Disclosure.—

“(1)

In general.—

Any disclosure of information by an employee or applicant for employment that the employee or applicant reasonably believes is evidence of censorship related to research, analysis, or technical information—

“(A)

shall come within the protections of section 2302(b)(8)(A) of title 5, United States Code, if—

“(i)

the employee or applicant reasonably believes that the censorship related to research, analysis, or technical information is or will cause—

“(I)

any violation of law, rule, or regulation; or

“(II)

gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; and

“(ii)

such disclosure is not specifically prohibited by law or such information is not specifically required by Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs; and

“(B)

shall come within the protections of section 2302(b)(8)(B) of title 5, United States Code, if—

“(i)

the employee or applicant reasonably believes that the censorship related to research, analysis, or technical information is or will cause—

“(I)

any violation of law, rule, or regulation; or

“(II)

gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; and

“(ii)

the disclosure is made to the Special Counsel, or to the Inspector General of an agency or another person designated by the head of the agency to receive such disclosures, consistent with the protection of sources and methods.

“(2)

Disclosures not excluded.—

A disclosure shall not be excluded from paragraph (1) for any reason described under section 2302(f)(1) or (2) of title 5, United States Code.

“(3)

Rule of construction.—

Nothing in this section shall be construed to imply any limitation on the protections of employees and applicants afforded by any other provision of law, including protections with respect to any disclosure of information believed to be evidence of censorship related to research, analysis, or technical information.”

Nondisclosure Policies, Forms, and Agreements

Pub. L. 112–199, title I, § 115, , 126 Stat. 1472, provided that:

“(a)

In General.—

“(1)

Requirement.—

Each agreement in Standard Forms 312 and 4414 of the Government and any other nondisclosure policy, form, or agreement of the Government shall contain the following statement: ‘These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.’.

“(2)

Agency websites.—

Agencies making use of any nondisclosure policy, form, or agreement shall also post the statement required under paragraph (1) on the agency website, accompanied by the specific list of controlling Executive orders and statutory provisions.

“(3)

Enforceability.—

“(A)

In general.—

Any nondisclosure policy, form, or agreement described under paragraph (1) that does not contain the statement required under paragraph (1) may not be implemented or enforced to the extent such policy, form, or agreement is inconsistent with that statement.

“(B)

Nondisclosure policy, form, or agreement in effect before the effective date.—

With respect to a nondisclosure policy, form, or agreement that was in effect before the effective date of this Act [see Effective Date of 2012 Amendment note above], but that does not contain the statement required under paragraph (1) for implementation or enforcement—

“(i)

it shall not be a prohibited personnel practice to enforce that policy, form, or agreement with regard to a current employee if the agency gives such employee notice of the statement; and

“(ii)

it shall not be a prohibited personnel practice to enforce that policy, form, or agreement after the effective date of this Act with regard to a former employee if the agency complies with paragraph (2).

“(b)

Persons Other Than Government Employees.—

Notwithstanding subsection (a), a nondisclosure policy, form, or agreement that is to be executed by a person connected with the conduct of an intelligence or intelligence-related activity, other than an employee or officer of the United States Government, may contain provisions appropriate to the particular activity for which such document is to be used. Such policy, form, or agreement shall, at a minimum, require that the person will not disclose any classified information received in the course of such activity unless specifically authorized to do so by the United States Government. Such nondisclosure policy, form, or agreement shall also make it clear that such forms do not bar disclosures to Congress or to an authorized official of an executive agency or the Department of Justice that are essential to reporting a substantial violation of law, consistent with the protection of sources and methods.”

Executive Documents

Federal Benefits and Non-Discrimination

Memorandum of President of the United States, , 74 F.R. 29393, provided:

Memorandum for the Heads of Executive Departments and Agencies

Millions of hard-working, dedicated, and patriotic public servants are employed by the Federal Government as part of the civilian workforce, and many of these devoted Americans have same-sex domestic partners. Leading companies in the private sector are free to provide to same-sex domestic partners the same benefits they provide to married people of the opposite sex. Executive departments and agencies, however, may only provide benefits on that basis if they have legal authorization to do so. My Administration is not authorized by Federal law to extend a number of available Federal benefits to the same-sex partners of Federal employees. Within existing law, however, my Administration, in consultation with the Secretary of State, who oversees our Foreign Service employees, and the Director of the Office of Personnel Management, who oversees human resource management for our civil service employees, has identified areas in which statutory authority exists to achieve greater equality for the Federal workforce through extension to same-sex domestic partners of benefits currently available to married people of the opposite sex. Extending available benefits will help the Federal Government compete with the private sector to recruit and retain the best and the brightest employees.

I hereby request the following:

Section 1. Extension of Identified Benefits. The Secretary of State and the Director of the Office of Personnel Management shall, in consultation with the Department of Justice, extend the benefits they have respectively identified to qualified same-sex domestic partners of Federal employees where doing so can be achieved and is consistent with Federal law.

Sec. 2. Review of Governmentwide Benefits. The heads of all other executive departments and agencies, in consultation with the Office of Personnel Management, shall conduct a review of the benefits provided by their respective departments and agencies to determine what authority they have to extend such benefits to same-sex domestic partners of Federal employees. The results of this review shall be reported within 90 days to the Director of the Office of Personnel Management, who, in consultation with the Department of Justice, shall recommend to me any additional measures that can be taken, consistent with existing law, to provide benefits to the same-sex domestic partners of Federal Government employees.

Sec. 3. Promoting Compliance with Existing Law Requiring Federal Workplaces to be Free of Discrimination Based on Non-Merit Factors. The Office of Personnel Management shall issue guidance within 90 days to all executive departments and agencies regarding compliance with, and implementation of, the civil service laws, rules, and regulations, including 5 U.S.C. 2302(b)(10), which make it unlawful to discriminate against Federal employees or applicants for Federal employment on the basis of factors not related to job performance.

Sec. 4. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:

(i) Authority granted by law or Executive Order to an agency, or the head thereof; or

(ii) Functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Sec. 5. Publication. The Director of the Office of Personnel Management is hereby authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.

Extension of Benefits to Same-Sex Domestic Partners of Federal Employees

Memorandum of President of the United States, , 75 F.R. 32247, provided:

Memorandum for the Heads of Executive Departments and Agencies

For far too long, many of our Government’s hard-working, dedicated LGBT employees have been denied equal access to the basic rights and benefits their colleagues enjoy. This kind of systemic inequality undermines the health, well-being, and security not just of our Federal workforce, but also of their families and communities. That is why, last June, I directed the heads of executive departments and agencies (agencies), in consultation with the Office of Personnel Management (OPM), to conduct a thorough review of the benefits they provide and to identify any that could be extended to LGBT employees and their partners and families. Although legislative action is necessary to provide full equality to LGBT Federal employees, the agencies have identified a number of benefits that can be extended under existing law. OPM, in consultation with the Department of Justice, has provided me with a report recommending that all of the identified benefits be extended.

Accordingly, I hereby direct the following:

Section 1. Immediate Actions To Extend Benefits. Agencies should immediately take the following actions, consistent with existing law, in order to extend benefits to the same-sex domestic partners of Federal employees, and, where applicable, to the children of same-sex domestic partners of Federal employees:

(a) The Director of OPM should take appropriate action to:

(i) clarify that the children of employees’ same-sex domestic partners fall within the definition of “child” for purposes of Federal child-care subsidies, and, where appropriate, for child-care services;

(ii) clarify that, for purposes of employee assistance programs, same-sex domestic partners and their children qualify as “family members”;

(iii) issue a proposed rule that would clarify that employees’ same-sex domestic partners qualify as “family members” for purposes of noncompetitive appointments made pursuant to Executive Order 12721 of ;

(iv) issue a proposed rule that would add a Federal retiree’s same-sex domestic partner to the list of individuals presumed to have an insurable interest in the employee pursuant to 5 U.S.C. 8339(k)(1), 8420;

(v) clarify that under appropriate circumstances, employees’ same-sex domestic partners and their children qualify as dependents for purposes of evacuation payments made under 5 U.S.C. 5522–5523; Folio: 1632 [sic]

(vi) amend its guidance on implementing President Clinton’s , memorandum to heads of executive departments and agencies on “Expanded Family and Medical Leave Policies” to specify that the 24 hours of unpaid leave made available to Federal employees in connection with (i) school and early childhood educational activities; (ii) routine family medical purposes; and (iii) elderly relatives’ health or care needs, may be used to meet the needs of an employee’s same-sex domestic partner or the same-sex domestic partner’s children; and

(vii) clarify that employees’ same-sex domestic partners qualify as dependents for purposes of calculating the extra allowance payable under 5 U.S.C. 5942a to assist employees stationed on Johnston Island, subject to any limitations applicable to spouses.

(b) The Administrator of General Services should take appropriate action to amend the definitions of “immediate family” and “dependent” appearing in the Federal Travel Regulations, 41 C.F.R. Chs. 300–304, to include same-sex domestic partners and their children, so that employees and their domestic partners and children can obtain the full benefits available under applicable law, including certain travel, relocation, and subsistence payments.

(c) All agencies offering any of the benefits specified by OPM in implementing guidance under section 3 of this memorandum, including credit union membership, access to fitness facilities, and access to planning and counseling services, should take all appropriate action to provide the same level of benefits that is provided to employees’ spouses and their children to employees’ same-sex domestic partners and their children.

(d) All agencies with authority to provide benefits to employees outside of the context of title 5, United States Code should take all appropriate actions to ensure that the benefits being provided to employees’ spouses and their children are also being provided, at an equivalent level wherever permitted by law, to their employees’ same-sex domestic partners and their children.

Sec. 2. Continuing Obligation To Provide New Benefits. In the future, all agencies that provide new benefits to the spouses of Federal employees and their children should, to the extent permitted by law, also provide them to the same-sex domestic partners of their employees and those same-sex domestic partners’ children. This section applies to appropriated and nonappropriated fund instrumentalities of such agencies.

Sec. 3. Monitoring and Guidance. The Director of OPM shall monitor compliance with this memorandum, and may instruct agencies to provide the Director with reports on the status of their compliance, and prescribe the form Folio: 1633 [sic] and manner of such reports. The Director of OPM shall also issue guidance to ensure consistent and appropriate implementation.

Sec. 4. Reporting. By , and annually thereafter, the Director of OPM shall provide the President with a report on the progress of the agencies in implementing this memorandum until such time as all recommendations have been appropriately implemented.

Sec. 5. General Provisions. (a) Except as expressly stated herein, nothing in this memorandum shall be construed to impair or otherwise affect:

(i) authority granted by law or Executive Order to an agency, or the head thereof; or

(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Sec. 6. Publication. The Director of OPM is hereby authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.

Credits

1978–2021 · 20 acts
  1. 1978Added Pub. L. 95–454, title I, § 101(a), , 92 Stat. 1114
  2. 1989amended Pub. L. 101–12, § 4, , 103 Stat. 32
  3. 1990Pub. L. 101–474, § 5(d), , 104 Stat. 1099
  4. 1992Pub. L. 102–378, § 2(5), , 106 Stat. 1346
  5. 1993Pub. L. 103–94, § 8(c), , 107 Stat. 1007
  6. 1994Pub. L. 103–359, title V, § 501(c), , 108 Stat. 3429
  7. 1994Pub. L. 103–424, § 5, , 108 Stat. 4363
  8. 1996Pub. L. 104–197, title III, § 315(b)(2), , 110 Stat. 2416, Pub. L. 104–201, div. A, title XI, § 1122(a)(1), title XVI, § 1615(b), , 110 Stat. 2687, 2741
  9. 1998Pub. L. 105–339, § 6(a), (b), (c)(2), , 112 Stat. 3187, 3188
  10. 2004Pub. L. 108–271, § 8(b), , 118 Stat. 814
  11. 2008Pub. L. 110–417, [div. A], title IX, § 931(a)(1), , 122 Stat. 4575
  12. 2012Pub. L. 112–199, title I, §§ 101(a), (b)(1)(B), (2)(B), (C), 102–104(b)(1), 105, 112, , 126 Stat. 1465–1468, 1472
  13. 2013Pub. L. 112–277, title V, § 505(a), , 126 Stat. 2478
  14. 2014Pub. L. 113–235, div. H, title I, § 1301(b), , 128 Stat. 2537
  15. 2015Pub. L. 114–113, div. J, title II, § 238, , 129 Stat. 2700
  16. 2017Pub. L. 115–40, § 2, , 131 Stat. 861
  17. 2017Pub. L. 115–73, title I, §§ 103, 107(a)(1), , 131 Stat. 1236, 1238
  18. 2017Pub. L. 115–91, div. A, title X, § 1097(b)(1)(B), (c)(1), , 131 Stat. 1616, 1618
  19. 2019Pub. L. 116–92, div. E, title LVII, § 5721, , 133 Stat. 2175
  20. 2021Pub. L. 116–283, div. A, title XI, § 1138, , 134 Stat. 3905.
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(Added Pub. L. 95–454, title I, § 101(a), , 92 Stat. 1114; amended Pub. L. 101–12, § 4, , 103 Stat. 32; Pub. L. 101–474, § 5(d), , 104 Stat. 1099; Pub. L. 102–378, § 2(5), , 106 Stat. 1346; Pub. L. 103–94, § 8(c), , 107 Stat. 1007; Pub. L. 103–359, title V, § 501(c), , 108 Stat. 3429; Pub. L. 103–424, § 5, , 108 Stat. 4363; Pub. L. 104–197, title III, § 315(b)(2), , 110 Stat. 2416, Pub. L. 104–201, div. A, title XI, § 1122(a)(1), title XVI, § 1615(b), , 110 Stat. 2687, 2741; Pub. L. 105–339, § 6(a), (b), (c)(2), , 112 Stat. 3187, 3188; Pub. L. 108–271, § 8(b), , 118 Stat. 814; Pub. L. 110–417, [div. A], title IX, § 931(a)(1), , 122 Stat. 4575; Pub. L. 112–199, title I, §§ 101(a), (b)(1)(B), (2)(B), (C), 102–104(b)(1), 105, 112, , 126 Stat. 1465–1468, 1472; Pub. L. 112–277, title V, § 505(a), , 126 Stat. 2478; Pub. L. 113–235, div. H, title I, § 1301(b), , 128 Stat. 2537; Pub. L. 114–113, div. J, title II, § 238, , 129 Stat. 2700; Pub. L. 115–40, § 2, , 131 Stat. 861; Pub. L. 115–73, title I, §§ 103, 107(a)(1), , 131 Stat. 1236, 1238; Pub. L. 115–91, div. A, title X, § 1097(b)(1)(B), (c)(1), , 131 Stat. 1616, 1618; Pub. L. 116–92, div. E, title LVII, § 5721, , 133 Stat. 2175; Pub. L. 116–283, div. A, title XI, § 1138, , 134 Stat. 3905.)

Parsed from the official OLRC USLM XML in data/usc_all/usc05.xml · release point 119-108 · OLRC build 2026-09-09

USLM identifier /us/usc/t5/s2302