§ 2303. Prohibited personnel practices in the Federal Bureau of Investigation

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. 1978

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

   Enacted · 5 U.S.C. § 2303

   Added Pub. L. 95–454, title I, § 101(a), Oct. 13, 1978, 92 Stat. 1117

   Source evidence

   Code source credit
   Added Pub. L. 95–454, title I, § 101(a), Oct. 13, 1978, 92 Stat. 1117

   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. 1989

   Whistleblower Protection Act of 1989

   Pub. L. 101–12 § 9(a)(1) · 103 Stat. 16

   Substituted · 5 U.S.C. § 2303(c)

   Pub. L. 101–12 substituted “applicable provisions of sections 1214 and 1221” for “the provisions of section 1206”

   Source evidence

   Code amendment note
   Subsec. (c). Pub. L. 101–12 substituted “applicable provisions of sections 1214 and 1221” for “the provisions of section 1206”.

   Enacted provision · exact public law section
   (1) Section 2303(c) of title 5, United States Code, is amended by striking “the provisions of section 1206” and inserting “applicable provisions of sections 1214 and 1221”.

   Effective date note
   Amendment by Pub. L. 101–12 effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as a note under section 1201 of this title.

3. 2016

   Federal Bureau of Investigation Whistleblower Protection Enhancement Act of 2016

   Pub. L. 114–302 § 2 · 130 Stat. 1516

   1. Substituted · 5 U.S.C. § 2303(a)

      Pub. L. 114–302 substituted “an employee in, or applicant for, a position in the Bureau as a reprisal for a disclosure of information—” for “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—” in introductory provisions

   2. Added · 5 U.S.C. § 2303(a)

      Pub. L. 114–302 added pars. (1) and (2)

   3. Struck · 5 U.S.C. § 2303(a)

      Pub. L. 114–302 struck out former pars. (1) and (2) which read as follows:

   Source evidence

   Code amendment note
   Subsec. (a). Pub. L. 114–302 substituted “an employee in, or applicant for, a position in the Bureau as a reprisal for a disclosure of information—” for “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—” in introductory provisions, added pars. (1) and (2), and struck out former pars. (1) and (2) which read as follows:

   “(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”.

   Enacted provision · exact public law section
   SEC. 2. PROHIBITED PERSONNEL PRACTICES IN THE FEDERAL BUREAU OF INVESTIGATION.   Section 2303(a) of title 5, United States Code, is amended by striking “any employee of the Bureau” and all that follows through “health or safety” and inserting the following: “an employee in, or applicant for, a position in the Bureau as a reprisal for a disclosure of information— “(1) made— “(A) in the case of an employee, to a supervisor in the direct chain of command of the employee, up to and including the head of the employing agency; “(B) to the Inspector General; “(C) to the Office of Professional Responsibility of the Department of Justice; “(D) to the Office of Professional Responsibility of the Federal Bureau of Investigation; “(E) to the Inspection Division of the Federal Bureau of Investigation; “(F) as described in section 7211; “(G) to the Office of Special Counsel; or “(H) to an employee designated by any officer, employee, office, or division described in subparagraphs (A) through (G) for the purpose of receiving such disclosures; and “(2) which the employee or applicant reasonably believes evidences— “(A) any violation of any law, rule, or regulation; or “(B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety” .

4. 2022

   James M. Inhofe National Defense Authorization Act for Fiscal Year 2023

   Pub. L. 117–263 div. E title LIII § 5304(a) · 136 Stat. 2395

   Added · 5 U.S.C. § 2303(d)

   Pub. L. 117–263 added subsec. (d)

   Source evidence

   Code amendment note
   Subsec. (d). Pub. L. 117–263 added subsec. (d).

   Enacted provision · exact public law section
   (a) Appeals to Mspb.— Section 2303 of title 5, United States Code, is amended by adding at the end the following: “(d) (1) An employee of the Federal Bureau of Investigation who makes an allegation of a reprisal under regulations promulgated under this section may appeal a final determination or corrective action order by the Bureau under those regulations to the Merit Systems Protection Board pursuant to section 1221. “(2) If no final determination or corrective action order has been made or issued for an allegation described in paragraph (1) before the expiration of the 180-day period beginning on the date on which the allegation is received by the Federal Bureau of Investigation, the employee described in that paragraph may seek corrective action directly from the Merit Systems Protection Board pursuant to section 1221.” .

6 of 6 references resolved to an enrolled provision