5 U.S.C. § 2302 — Prohibited personnel practices

Page 314 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 2302 ‘‘(b) SPECIFIC REQUIREMENTS.—The data posted under this section shall, with respect to the hearings and ap- peals described in subsection (a), include summary sta- tistical data corresponding to that described in para- graphs (1) through (11) of section 301(b), and shall be subject to the same timing and other requirements as set forth in section 301(c). ‘‘(c) COORDINATION.—The data required under this sec- tion shall be in addition to the data the Commission is required to post under section 301 as an employing Fed- eral agency. ‘‘SEC. 303. RULES. ‘‘The Equal Employment Opportunity Commission shall issue any rules necessary to carry out this title. ‘‘TITLE IV—PROCESSING AND REFERRAL ‘‘SEC. 401. PROCESSING AND RESOLUTION OF COM- PLAINTS. ‘‘Each Federal agency shall— ‘‘(1) be responsible for the fair and impartial proc- essing and resolution of complaints of employment discrimination (including retaliation) prohibited by a provision of law covered by paragraph (1) or (2) of sec- tion 201(a); and ‘‘(2) establish a model Equal Employment Oppor- tunity Program that— ‘‘(A) is not under the control, either structurally or practically, of the agency’s Office of Human Cap- ital or Office of the General Counsel (or the equiva- lent); ‘‘(B) is devoid of internal conflicts of interest and ensures fairness and inclusiveness within the agen- cy; and ‘‘(C) ensures the efficient and fair resolution of complaints alleging discrimination (including re- taliation). ‘‘SEC. 402. NO LIMITATION ON ADVICE OR COUN- SEL. ‘‘Nothing in this title shall prevent a Federal agency or a subcomponent of a Federal agency, or the Depart- ment of Justice, from providing advice or counsel to employees of that agency (or subcomponent, as applica- ble) in the resolution of a complaint. ‘‘SEC. 403. HEAD OF PROGRAM SUPERVISED BY HEAD OF AGENCY. ‘‘The head of each Federal agency’s Equal Employ- ment Opportunity Program shall report directly to the head of the agency. ‘‘SEC. 404. REFERRALS OF FINDINGS OF DISCRIMI- NATION. ‘‘(a) EEOC FINDINGS OF DISCRIMINATION.— ‘‘(1) IN GENERAL.—Not later than 30 days after the date on which the Equal Employment Opportunity Commission (referred to in this section as the ‘Com- mission’) receives, or should have received, a Federal agency report required under section 203(c), the Com- mission may refer the matter to which the report re- lates to the Office of Special Counsel if the Commis- sion determines that the Federal agency did not take appropriate action with respect to the finding that is the subject of the report. ‘‘(2) NOTIFICATIONS.—The Commission shall— ‘‘(A) notify the applicable Federal agency if the Commission refers a matter to the Office of Special Counsel under paragraph (1); and ‘‘(B) with respect to a fiscal year, include in the Annual Report of the Federal Workforce of the Commission covering that fiscal year— ‘‘(i) the number of referrals made under para- graph (1) during that fiscal year; and ‘‘(ii) a brief summary of each referral described in clause (i). ‘‘(b) REFERRALS TO SPECIAL COUNSEL.—The Office of Special Counsel shall accept and review a referral from the Commission under subsection (a)(1) for purposes of pursuing disciplinary action under the authority of the Office against a Federal employee who commits an act of discrimination (including retaliation). ‘‘(c) NOTIFICATION.—The Office of Special Counsel shall notify the Commission and the applicable Federal agency in a case in which— ‘‘(1) the Office of Special Counsel pursues discipli- nary action under subsection (b); and ‘‘(2) the Federal agency imposes some form of dis- ciplinary action against a Federal employee who commits an act of discrimination (including retalia- tion). ‘‘(d) SPECIAL COUNSEL APPROVAL.—A Federal agency may not take disciplinary action against a Federal em- ployee for an alleged act of discrimination (including retaliation) referred by the Commission under this sec- tion, except in accordance with the requirements of section 1214(f) of title 5, United States Code.’’ [Pub. L. 116–283, div. A, title XI, § 1134(a)(2), Jan. 1, 2021, 134 Stat. 3901, provided that: ‘‘The amendment made by paragraph (1)(C) [amending section 203(a) of Pub. L. 107–174, set out above] shall take effect on the date that is 1 year after the date of enactment of this Act [Jan. 1, 2021].’’] [For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of Title 8, Aliens and Nationality.] [For transfer of authorities, functions, personnel, and assets of the Bureau of Alcohol, Tobacco and Firearms, including the related functions of the Secretary of the Treasury, to the Department of Justice, see section 531(c) of Title 6, Domestic Security, and section 599A(c)(1) of Title 28, Judiciary and Judicial Proce- dure.] [Pub. L. 116–283, div. A, title XI, § 1134(a)(3), Jan. 1, 2021, 134 Stat. 3901, provided that: ‘‘Notwithstanding the requirements of section 203(a) of the Notification and Federal Employee Antidiscrimination and Retalia- tion Act of 2002 [Pub. L. 107–174] (5 U.S.C. 2301 note) [set out above], the report required under such section 203(a) may be submitted in an electronic format, as pre- scribed by the Director of the Office of Personnel Man- agement, during the period beginning on the date of en- actment of this Act [Jan. 1, 2021] and ending on the ef- fective date in paragraph (2) [1 year after the date of enactment of this Act].’’] [Memorandum of President of the United States, July 8, 2003, 68 F.R. 45155, delegated to Director of Office of Personnel Management authority of President under section 204(a) of Public Law 107–174, set out above.] § 2302. Prohibited personnel practices (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, pro- motion, 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 agree- ment; and Page 315 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 2302 (xii) any other significant change in du- ties, 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 prac- tice described in subsection (b)(8), an em- ployee or applicant for employment in a Gov- ernment 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 posi- tion in the Senior Executive Service, or a posi- tion in the excepted service, but does not in- clude any position which is, prior to the per- sonnel action— (i) excepted from the competitive service because of its confidential, policy-deter- mining, policy-making, or policy-advocating character; or (ii) excluded from the coverage of this sec- tion by the President based on a determina- tion by the President that it is necessary and warranted by conditions of good admin- istration; (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 Na- tional Security Agency, the Office of the Di- rector of National Intelligence, and the Na- tional Reconnaissance Office; and (II) as determined by the President, any executive agency or unit thereof the prin- cipal function of which is the conduct of for- eign intelligence or counterintelligence ac- tivities, provided that the determination be made prior to a personnel action; or (iii) the Government Accountability Of- fice; 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 regu- lation; or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substan- tial 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 Reha- bilitation Act of 1973 (29 U.S.C. 791); or (E) on the basis of marital status or polit- ical 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 con- sideration 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 perform- ance, ability, aptitude, or general qualifica- tions 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 con- tribution or service), or take any action against any employee or applicant for employ- ment 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 (in- cluding defining the scope or manner of com- petition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employ- ment; (7) appoint, employ, promote, advance, or advocate for appointment, employment, pro- motion, or advancement, in or to a civilian po- sition any individual who is a relative (as de- fined 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 of- ficial (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 reg- ulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a sub- stantial and specific danger to public health or safety, if such disclosure is not specifically prohib- ited by law and if such information is not Page 316 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 2302 1 So in original. The period probably should be a semicolon. specifically required by Executive order to be kept secret in the interest of national de- fense 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 in- formation which the employee or applicant reasonably believes evidences— (i) any violation (other than a violation of this section) of any law, rule, or regula- tion, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a sub- stantial and specific danger to public health or safety; or (C) any disclosure to Congress (including any committee of Congress) by any em- ployee of an agency or applicant for employ- ment 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 in- telligence community (as defined by sec- tion 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 be- cause 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 as- sisting any individual in the exercise of any right referred to in subparagraph (A)(i) or (ii); (C) cooperating with or disclosing informa- tion to the Inspector General (or any other component responsible for internal inves- tigation or review) of an agency, or the Spe- cial 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 em- ployee or applicant for employment on the basis of conduct which does not adversely af- fect the performance of the employee or appli- cant or the performance of others; except that nothing in this paragraph shall prohibit an agency from taking into account in deter- mining suitability or fitness any conviction of the employee or applicant for any crime under the laws of any State, of the District of Co- lumbia, or of the United States; (11)(A) knowingly take, recommend, or ap- prove any personnel action if the taking of such action would violate a veterans’ pref- erence 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 state- ment: ‘‘These provisions are consistent with and do not supersede, conflict with, or other- wise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified in- formation, (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 mis- management, a gross waste of funds, an abuse of authority, or a substantial and spe- cific 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 agree- ment 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 inves- tigation or review any information that re- lates 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 em- ployee 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 au- thorize 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 sub- ject of a disclosure as defined under subsection (a)(2)(D) may be rebutted by substantial evi- dence, and (ii) a determination as to whether an employee or applicant reasonably believes that such employee or applicant has disclosed infor- mation 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 disin- terested observer with knowledge of the essen- tial facts known to and readily ascertainable by Page 317 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 2302 1 See References in Text note below. the employee or applicant could reasonably con- clude that the actions of the Government evi- dence such violations, mismanagement, waste, abuse, or danger. (c)(1) In this subsection— (A) the term ‘‘new employee’’ means an indi- vidual— (i) appointed to a position as an employee on or after the date of enactment of this sub- section; 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 respon- sible for— (A) preventing prohibited personnel prac- tices; (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 Spe- cial Counsel and the Inspector General of the agency, that employees of the agency are in- formed of the rights and remedies available to the employees under this chapter and chapter 12, including— (i) information with respect to whistle- blower protections available to new employ- ees during a probationary period; (ii) the role of the Office of Special Coun- sel 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 intel- ligence 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 avail- able information regarding whistleblower pro- tections applicable to employees of the agency on the public website of the agency and on any online portal that is made available only to em- ployees 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 ex- tinguish 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 na- tional origin; (2) sections 12 and 15 of the Age Discrimina- tion 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)), prohib- iting 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 regula- tion 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 In- terest Lands Conservation Act. (D) Section 301(c) of the Foreign Service Act of 1980. (E) Sections 106(f),1 7281(e), and 7802(5) 1 of title 38. (F) Section 1005(a) of title 39. (G) Any other provision of law that the Di- rector 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 sub- section (b) or (c) of section 1302 and any other regulation that implements a provision of law referred to in any of the preceding subpara- graphs. (2) Notwithstanding any other provision of this title, no authority to order corrective ac- tion shall be available in connection with a pro- hibited personnel practice described in sub- section (b)(11). Nothing in this paragraph shall be considered to affect any authority under sec- tion 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 be- lieved 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; Page 318 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 2302 (D) the disclosure was not made in writing; (E) the disclosure was made while the em- ployee was off duty; (F) the disclosure was made before the date on which the individual was appointed or ap- plied 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 dis- closing employee. (Added Pub. L. 95–454, title I, § 101(a), Oct. 13, 1978, 92 Stat. 1114; amended Pub. L. 101–12, § 4, Apr. 10, 1989, 103 Stat. 32; Pub. L. 101–474, § 5(d), Oct. 30, 1990, 104 Stat. 1099; Pub. L. 102–378, § 2(5), Oct. 2, 1992, 106 Stat. 1346; Pub. L. 103–94, § 8(c), Oct. 6, 1993, 107 Stat. 1007; Pub. L. 103–359, title V, § 501(c), Oct. 14, 1994, 108 Stat. 3429; Pub. L. 103–424, § 5, Oct. 29, 1994, 108 Stat. 4363; Pub. L. 104–197, title III, § 315(b)(2), Sept. 16, 1996, 110 Stat. 2416, Pub. L. 104–201, div. A, title XI, § 1122(a)(1), title XVI, § 1615(b), Sept. 23, 1996, 110 Stat. 2687, 2741; Pub. L. 105–339, § 6(a), (b), (c)(2), Oct. 31, 1998, 112 Stat. 3187, 3188; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 110–417, [div. A], title IX, § 931(a)(1), Oct. 14, 2008, 122 Stat. 4575; Pub. L. 112–199, title I, §§ 101(a), (b)(1)(B), (2)(B), (C), 102–104(b)(1), 105, 112, Nov. 27, 2012, 126 Stat. 1465–1468, 1472; Pub. L. 112–277, title V, § 505(a), Jan. 14, 2013, 126 Stat. 2478; Pub. L. 113–235, div. H, title I, § 1301(b), Dec. 16, 2014, 128 Stat. 2537; Pub. L. 114–113, div. J, title II, § 238, Dec. 18, 2015, 129 Stat. 2700; Pub. L. 115–40, § 2, June 14, 2017, 131 Stat. 861; Pub. L. 115–73, title I, §§ 103, 107(a)(1), Oct. 26, 2017, 131 Stat. 1236, 1238; Pub. L. 115–91, div. A, title X, § 1097(b)(1)(B), (c)(1), Dec. 12, 2017, 131 Stat. 1616, 1618; Pub. L. 116–92, div. E, title LVII, § 5721, Dec. 20, 2019, 133 Stat. 2175; Pub. L. 116–283, div. A, title XI, § 1138, Jan. 1, 2021, 134 Stat. 3905.) 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, re- ferred 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), Dec. 6, 2003, 117 Stat. 2059. AMENDMENTS 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), in- serted ‘‘(including any committee of Congress with re- spect to information that is not classified or, if classi- fied, 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 in- ternal investigation or review)’’ after ‘‘Inspector Gen- eral’’. 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 sub- sec. (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 en- forcement of applicable civil service laws, rules, and regulations, and other aspects of personnel manage- ment, and for ensuring (in consultation with the Office of Special Counsel) that agency employees are in- formed of the rights and remedies available to them under this chapter and chapter 12 of this title, includ- ing 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 disclo- sures. Any individual to whom the head of an agency delegates authority for personnel management, or for any aspect thereof, shall be similarly responsible with- in 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 fol- lows: ‘‘If a disclosure is made during the normal course of duties of an employee, the disclosure shall not be ex- cluded 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 em- ployee 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 disclo- sure.’’ 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 Na- tional 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 counterintel- ligence 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), in- serted ‘‘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: Page 319 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 2302 ‘‘the Federal Bureau of Investigation, the Central In- telligence 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 informa- tion 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), sub- stituted ‘‘any violation’’ for ‘‘a violation’’. Subsec. (b)(8)(B)(i). Pub. L. 112–199, § 101(a)(2), sub- stituted ‘‘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 regula- tion;’’. Subsec. (b)(9)(B). Pub. L. 112–199, § 101(b)(2)(B)(ii), in- serted ‘‘(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 disclo- sures’’ 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 ‘‘Na- tional Imagery and Mapping Agency’’. 2004—Subsec. (a)(2)(C)(iii). Pub. L. 108–271 substituted ‘‘Government Accountability Office’’ for ‘‘General Ac- counting 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 per- sonnel 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 redesig- nated 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 per- sonnel practice’ means any action described in sub- section (b) of this section.’’ Subsec. (a)(2)(C)(ii). Pub. L. 104–201, § 1122(a)(1), sub- stituted ‘‘National Imagery and Mapping Agency’’ for ‘‘Central Imagery Office’’. Subsec. (b)(2). Pub. L. 104–197 amended par. (2) gen- erally. Prior to amendment, par. (2) read as follows: ‘‘solicit or consider any recommendation or statement, oral or written, with respect to any individual who re- quests or is under consideration for any personnel ac- tion 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 de- fined 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 sub- par. (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 ex- cepted service, but does not include— ‘‘(i) a position which is excepted from the competi- tive service because of its confidential, policy-deter- mining, policy-making, or policy-advocating char- acter; or ‘‘(ii) any position excluded from the coverage of this section by the President based on a determina- tion by the President that it is necessary and war- ranted by conditions of good administration.’’ Subsec. (a)(2)(C)(i). Pub. L. 103–424, § 5(c), inserted be- fore semicolon ‘‘, except in the case of an alleged pro- hibited personnel practice described under subsection (b)(8)’’. Subsec. (a)(2)(C)(ii). Pub. L. 103–359 inserted ‘‘the Cen- tral Imagery Office,’’ after ‘‘Defense Intelligence Agen- cy,’’. Subsec. (c). Pub. L. 103–424, § 5(d), inserted before pe- riod at end of first sentence ‘‘, and for ensuring (in con- sultation with the Office of Special Counsel) that agen- cy 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 re- quests or is under consideration for any personnel ac- tion unless such recommendation or statement is based on the personal knowledge or records of the person fur- nishing it and consists of— ‘‘(A) an evaluation of the work performance, abil- ity, aptitude, or general qualifications of such indi- vidual; 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 introduc- tory 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 dis- closure’’ for ‘‘a disclosure’’, in subpar. (A)(ii) inserted ‘‘gross’’ before ‘‘mismanagement’’, in subpar. (B) sub- stituted ‘‘any disclosure’’ for ‘‘a disclosure’’, and in subpar. (B)(ii) inserted ‘‘gross’’ before ‘‘mismanage- ment’’. 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 Nov. 27, 2012, 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 ef- fective Oct. 1, 1996, see section 1124 of Pub. L. 104–201, Page 320 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 2302 set out as a note under section 193 of Title 10, Armed Forces. Pub. L. 104–197, title III, § 315(c), Sept. 16, 1996, 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 [Sept. 16, 1996].’’ EFFECTIVE DATE OF 1993 AMENDMENT; SAVINGS PROVISION Amendment by Pub. L. 103–94 effective 120 days after Oct. 6, 1993, but not to release or extinguish any pen- alty, forfeiture, or liability incurred under amended provision, which is to be treated as remaining in force for purpose of sustaining any proper proceeding or ac- tion for enforcement of that penalty, forfeiture, or li- ability, 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 Oct. 6, 1993, 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 fol- lowing Apr. 10, 1989, 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, Nov. 27, 2012, 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 protec- tions afforded by any other provision of law to employ- ees and applicants.’’ Pub. L. 105–339, § 6(d), Oct. 31, 1998, 112 Stat. 3188, pro- vided 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 [Oct. 31, 1998].’’ AGENCY WEBSITES Pub. L. 112–199, title I, § 104(b)(2), Nov. 27, 2012, 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 con- trolling 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), Nov. 27, 2012, 126 Stat. 1467, provided that: ‘‘With respect to a nondisclo- sure policy, form, or agreement that was in effect be- fore 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 imple- mentation or enforcement— ‘‘(A) it shall not be a prohibited personnel practice to enforce that policy, form, or agreement with re- gard 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 em- ployee 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, Nov. 27, 2012, 126 Stat. 1471, as amended by Pub. L. 115–73, title I, § 107(a)(2)(C), Oct. 26, 2017, 131 Stat. 1239; Pub. L. 115–91, div. A, title X, § 1097(b)(3)(C), Dec. 12, 2017, 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, anal- ysis, 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 tech- nical 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 be- lieves 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 prohib- ited 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 be- lieves 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 Coun- sel, 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 de- scribed under section 2302(f)(1) or (2) of title 5, United States Code. ‘‘(3) RULE OF CONSTRUCTION.—Nothing in this sec- tion 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 be- lieved to be evidence of censorship related to re- search, analysis, or technical information.’’ NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS Pub. L. 112–199, title I, § 115, Nov. 27, 2012, 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 Gov- ernment shall contain the following statement: Page 321 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 2302 ‘These provisions are consistent with and do not su- persede, conflict with, or otherwise alter the em- ployee obligations, rights, or liabilities created by ex- isting statute or Executive order relating to (1) clas- sified information, (2) communications to Congress, (3) the reporting to an Inspector General of a viola- tion of any law, rule, or regulation, or mismanage- ment, 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 Exec- utive orders and statutory provisions are incor- porated 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 provi- sions. ‘‘(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 in- consistent with that statement. ‘‘(B) NONDISCLOSURE POLICY, FORM, OR AGREEMENT IN EFFECT BEFORE THE EFFECTIVE DATE.—With re- spect 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 re- quired under paragraph (1) for implementation or enforcement— ‘‘(i) it shall not be a prohibited personnel prac- tice 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 prac- tice 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 intel- ligence-related activity, other than an employee or of- ficer 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 re- ceived 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 disclo- sures to Congress or to an authorized official of an ex- ecutive agency or the Department of Justice that are essential to reporting a substantial violation of law, consistent with the protection of sources and meth- ods.’’ Executive Documents FEDERAL BENEFITS AND NON-DISCRIMINATION Memorandum of President of the United States, June 17, 2009, 74 F.R. 29393, provided: Memorandum for the Heads of Executive Depart- ments and Agencies Millions of hard-working, dedicated, and patriotic public servants are employed by the Federal Govern- ment as part of the civilian workforce, and many of these devoted Americans have same-sex domestic part- ners. Leading companies in the private sector are free to provide to same-sex domestic partners the same ben- efits 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 au- thorized by Federal law to extend a number of available Federal benefits to the same-sex partners of Federal employees. Within existing law, however, my Adminis- tration, 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 statu- tory 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 Sec- retary of State and the Director of the Office of Per- sonnel Management shall, in consultation with the De- partment of Justice, extend the benefits they have re- spectively 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 re- sults 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 Requir- ing Federal Workplaces to be Free of Discrimination Based on Non-Merit Factors. The Office of Personnel Manage- ment shall issue guidance within 90 days to all execu- tive 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 Fed- eral employees or applicants for Federal employment on the basis of factors not related to job performance. SEC. 4. General Provisions. (a) Nothing in this memo- randum shall be construed to impair or otherwise af- fect: (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 Man- agement and Budget relating to budgetary, adminis- trative, 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. 5. Publication. The Director of the Office of Per- sonnel 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, June 2, 2010, 75 F.R. 32247, provided: Memorandum for the Heads of Executive Depart- ments and Agencies For far too long, many of our Government’s hard- working, dedicated LGBT employees have been denied 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