5 U.S.C. § 2303 — Prohibited personnel practices in the Fed-

Page 322 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 2303 equal access to the basic rights and benefits their col- leagues enjoy. This kind of systemic inequality under- mines 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 (agen- cies), in consultation with the Office of Personnel Man- agement (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 bene- fits be extended. Accordingly, I hereby direct the following: SECTION 1. Immediate Actions To Extend Benefits. Agen- cies should immediately take the following actions, consistent with existing law, in order to extend bene- fits to the same-sex domestic partners of Federal em- ployees, and, where applicable, to the children of same- sex domestic partners of Federal employees: (a) The Director of OPM should take appropriate ac- tion 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 chil- dren qualify as ‘‘family members’’; (iii) issue a proposed rule that would clarify that em- ployees’ same-sex domestic partners qualify as ‘‘family members’’ for purposes of noncompetitive appoint- ments made pursuant to Executive Order 12721 of July 30, 1990; (iv) issue a proposed rule that would add a Federal re- tiree’s same-sex domestic partner to the list of individ- uals presumed to have an insurable interest in the em- ployee pursuant to 5 U.S.C. 8339(k)(1), 8420; (v) clarify that under appropriate circumstances, em- ployees’ same-sex domestic partners and their children qualify as dependents for purposes of evacuation pay- ments made under 5 U.S.C. 5522–5523; Folio: 1632 [sic] (vi) amend its guidance on implementing President Clinton’s April 11, 1997, memorandum to heads of execu- tive departments and agencies on ‘‘Expanded Family and Medical Leave Policies’’ to specify that the 24 hours of unpaid leave made available to Federal em- ployees in connection with (i) school and early child- hood 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 part- ners qualify as dependents for purposes of calculating the extra allowance payable under 5 U.S.C. 5942a to as- sist 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 chil- dren can obtain the full benefits available under appli- cable law, including certain travel, relocation, and sub- sistence 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 en- sure 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 chil- dren. 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 em- ployees and those same-sex domestic partners’ chil- dren. This section applies to appropriated and non- appropriated 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 re- ports 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 en- sure consistent and appropriate implementation. SEC. 4. Reporting. By April 1, 2011, and annually there- after, the Director of OPM shall provide the President with a report on the progress of the agencies in imple- menting this memorandum until such time as all rec- ommendations 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 Manage- ment and Budget relating to budgetary, administra- tive, or legislative proposals. (b) This memorandum shall be implemented con- sistent with applicable law and subject to the avail- ability of appropriations. (c) This memorandum is not intended to, and does not, create any right or benefit, substantive or proce- dural, 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 au- thorized and directed to publish this memorandum in the Federal Register. BARACK OBAMA. § 2303. Prohibited personnel practices in the Fed- eral Bureau of Investigation (a) Any employee of the Federal Bureau of In- vestigation who has authority to take, direct others to take, recommend, or approve any per- sonnel action, shall not, with respect to such au- thority, take or fail to take a personnel action with respect to an employee in, or applicant for, a position in the Bureau as a reprisal for a dis- closure of information— (1) made— (A) in the case of an employee, to a super- visor 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 Responsi- bility of the Department of Justice; (D) to the Office of Professional Responsi- bility of the Federal Bureau of Investiga- tion; (E) to the Inspection Division of the Fed- eral Bureau of Investigation; (F) as described in section 7211; (G) to the Office of Special Counsel; or (H) to an employee designated by any offi- cer, employee, office, or division described in subparagraphs (A) through (G) for the pur- pose of receiving such disclosures; and Page 323 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 2303 (2) which the employee or applicant reason- ably believes evidences— (A) any violation of any law, rule, or regu- lation; or (B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substan- tial and specific danger to public health or safety. For the purpose of this subsection, ‘‘personnel action’’ means any action described in clauses (i) through (x) of section 2302(a)(2)(A) of this title with respect to an employee in, or appli- cant 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 regu- lations to ensure that such a personnel action shall not be taken against an employee of the Bureau as a reprisal for any disclosure of infor- mation described in subsection (a) of this sec- tion. (c) The President shall provide for the enforce- ment of this section in a manner consistent with applicable provisions of sections 1214 and 1221 of this title. (d)(1) An employee of the Federal Bureau of Investigation who makes an allegation of a re- prisal under regulations promulgated under this section may appeal a final determination or cor- rective 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 ac- tion order has been made or issued for an allega- tion described in paragraph (1) before the expira- tion of the 180-day period beginning on the date on which the allegation is received by the Fed- eral Bureau of Investigation, the employee de- scribed in that paragraph may seek corrective action directly from the Merit Systems Protec- tion Board pursuant to section 1221. (Added Pub. L. 95–454, title I, § 101(a), Oct. 13, 1978, 92 Stat. 1117; amended Pub. L. 101–12, § 9(a)(1), Apr. 10, 1989, 103 Stat. 34; Pub. L. 114–302, § 2, Dec. 16, 2016, 130 Stat. 1516; Pub. L. 117–263, div. E, title LIII, § 5304(a), Dec. 23, 2022, 136 Stat. 3250.) Editorial Notes AMENDMENTS 2022—Subsec. (d). Pub. L. 117–263 added subsec. (d). 2016—Subsec. (a). Pub. L. 114–302 substituted ‘‘an em- ployee 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 reason- ably 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’’. 1989—Subsec. (c). Pub. L. 101–12 substituted ‘‘applica- ble provisions of sections 1214 and 1221’’ for ‘‘the provi- sions of section 1206’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1989 AMENDMENT Amendment by Pub. L. 101–12 effective 90 days fol- lowing Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as a note under section 1201 of this title. WHISTLEBLOWER PROTECTIONS FOR FEDERAL BUREAU OF INVESTIGATION CONTRACTORS Pub. L. 115–118, title I, § 110(b), Jan. 19, 2018, 132 Stat. 16, provided that: ‘‘(1) IN GENERAL.—Any employee of a contractor, sub- contractor, grantee, subgrantee, or personal services contractor, of the Federal Bureau of Investigation who has authority to take, direct others to take, rec- ommend, or approve any personnel action, shall not, with respect to such authority, take or fail to take a personnel action with respect to a contractor employee as a reprisal for a disclosure of information— ‘‘(A) made— ‘‘(i) to a supervisor in the direct chain of com- mand of the contractor employee; ‘‘(ii) to the Inspector General; ‘‘(iii) to the Office of Professional Responsibility of the Department of Justice; ‘‘(iv) to the Office of Professional Responsibility of the Federal Bureau of Investigation; ‘‘(v) to the Inspection Division of the Federal Bu- reau of Investigation; ‘‘(vi) to the Office of Special Counsel; or ‘‘(vii) to an employee designated by any officer, employee, office, or division described in clauses (i) through (vii) for the purpose of receiving such dis- closures; and ‘‘(B) which the contractor employee reasonably be- lieves evidences— ‘‘(i) any violation of any law, rule, or regulation (including with respect to evidence of another em- ployee or contractor employee accessing or sharing classified information without authorization); or ‘‘(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. ‘‘(2) ACTIONS BY REQUEST.—A personnel action under paragraph (1) is prohibited even if the action is under- taken at the request of an official of the Federal Bu- reau of Investigation, unless the request takes the form of a nondiscretionary directive and is within the au- thority of the official making the request. ‘‘(3) REGULATIONS.—The Attorney General shall pre- scribe regulations to ensure that a personnel action de- scribed in paragraph (1) shall not be taken against a contractor employee of the Federal Bureau of Inves- tigation as a reprisal for any disclosure of information described in subparagraph (A) of such paragraph. ‘‘(4) ENFORCEMENT.—The President shall provide for the enforcement of this subsection. ‘‘(5) DEFINITIONS.—In this subsection: ‘‘(A) The term ‘contractor employee’ means an em- ployee of a contractor, subcontractor, grantee, sub- grantee, or personal services contractor, of the Fed- eral Bureau of Investigation. ‘‘(B) The term ‘personnel action’ means any action described in clauses (i) through (x) of section 2302(a)(2)(A) of title 5, United States Code, with re- spect to a contractor employee.’’ Executive Documents DELEGATION OF RESPONSIBILITIES CONCERNING FBI EM- PLOYEES UNDER THE CIVIL SERVICE REFORM ACT OF 1978 Memorandum of President of the United States, Apr. 14, 1997, 62 F.R. 23123, provided: Memorandum for the Attorney General By the authority vested in me by the Constitution and laws of the United States of America, including section 301 of title 3, United States Code, I hereby dele- gate to the Attorney General the functions concerning Page 324 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 2304 1 See References in Text note below. employees of the Federal Bureau of Investigation vest- ed in the President by section 101(a) of the Civil Service Reform Act of 1978 (Public Law 95–454), as amended by the Whistleblower Protection Act of 1989 (Public Law 101–12), and codified at section 2303(c) of title 5, United States Code, and direct the Attorney General to estab- lish appropriate processes within the Department of Justice to carry out these functions. Not later than March 1 of each year, the Attorney General shall pro- vide a report to the President stating the number of al- legations of reprisal received during the preceding cal- endar year, the disposition of each allegation resolved during the preceding calendar year, and the number of unresolved allegations pending as of the end of the cal- endar year. All of the functions vested in the President by sec- tion 2303(c) of title 5, United States Code, and delegated to the Attorney General, may be redelegated, as appro- priate, provided that such functions may not be redele- gated to the Federal Bureau of Investigation. You are authorized and directed to publish this memorandum in the Federal Register. WILLIAM J. CLINTON. § 2304. Prohibited personnel practices affecting the Transportation Security Administration (a) IN GENERAL.—Notwithstanding any other provision of law, any individual holding or ap- plying for a position within the Transportation Security Administration shall be covered by— (1) the provisions of section 2302(b)(1), (8), and (9); (2) any provision of law implementing sec- tion 2302(b)(1), (8), or (9) by providing any right or remedy available to an employee or appli- cant for employment in the civil service; and (3) any rule or regulation prescribed under any provision of law referred to in paragraph (1) or (2). (b) RULE OF CONSTRUCTION.—Nothing in this section shall be construed to affect any rights, apart from those described in subsection (a), to which an individual described in subsection (a) might otherwise be entitled under law. (Added Pub. L. 112–199, title I, § 109(a)(2), Nov. 27, 2012, 126 Stat. 1470.) Editorial Notes PRIOR PROVISIONS A prior section 2304 was renumbered section 2305 of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 112–199, title I, § 109(c), Nov. 27, 2012, 126 Stat. 1471, provided that: ‘‘The amendments made by this section [enacting this section and renumbering sec- tions 2304 and 2305 of this title as sections 2305 and 2306, respectively, of this title] shall take effect on the date of enactment of this section [Nov. 27, 2012].’’ § 2305. Responsibility of the Government Ac- countability Office If requested by either House of the Congress (or any committee thereof), or if considered nec- essary by the Comptroller General, the Govern- ment Accountability 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. (Added Pub. L. 95–454, title I, § 101(a), Oct. 13, 1978, 92 Stat. 1118, § 2304; amended Pub. L. 102–378, § 2(6), Oct. 2, 1992, 106 Stat. 1346; Pub. L. 104–66, title II, § 2181(e), Dec. 21, 1995, 109 Stat. 732; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; renumbered § 2305, Pub. L. 112–199, title I, § 109(a)(1), Nov. 27, 2012, 126 Stat. 1470.) Editorial Notes PRIOR PROVISIONS A prior section 2305 was renumbered section 2306 of this title. AMENDMENTS 2012—Pub. L. 112–199 renumbered section 2304 of this title as this section. 2004—Pub. L. 108–271 substituted ‘‘Government Ac- countability Office’’ for ‘‘General Accounting Office’’ in section catchline and text. 1995—Pub. L. 104–66 struck out subsec. (a) designation before ‘‘If requested by’’ and struck out subsec. (b) which read as follows: ‘‘The General Accounting Office shall prepare and submit an annual report to the Presi- dent 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 sys- tem principles and free from prohibited personnel practices.’’ 1992—Subsec. (b). Pub. L. 102–378 substituted ‘‘The’’ for ‘‘the’’ at beginning of first sentence. § 2306. Coordination with certain other provi- sions 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),1 the Central Intel- ligence Agency Act of 1949 (63 Stat. 208; 50 U.S.C. 403a and following),1 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),1 and the Act entitled ‘‘An Act to amend the Internal Security Act of 1950’’, ap- proved March 26, 1964 (78 Stat. 168; 50 U.S.C. 831–835). (Added Pub. L. 95–454, title I, § 101(a), Oct. 13, 1978, 92 Stat. 1118, § 2305; renumbered § 2306, Pub. L. 112–199, title I, § 109(a)(1), Nov. 27, 2012, 126 Stat. 1470.) Editorial Notes REFERENCES IN TEXT The National Security Act of 1947, referred to in text, is act July 26, 1947, ch. 343, 61 Stat. 495, which was for- merly classified principally to chapter 15 (§ 401 et seq.) of Title 50, War and National Defense, prior to editorial reclassification in chapter 44 (§ 3001 et seq.) of Title 50. Section 102 of the Act was repealed by Pub. L. 104–293, title VIII, § 805(a), Oct. 11, 1996, 110 Stat. 3477, another section 102 was repealed by Pub. L. 108–458, title I, §§ 1011(a), 1097(a), Dec. 17, 2004, 118 Stat. 3643, 3698, and subsequently another section 102, as added by Pub. L.