5 U.S.C. § 408 — Additional provisions with respect to the

Page 50 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 408 a complaint or information from an employee, disclose the identity of the employee without the consent of the employee, unless the Inspec- tor General determines the disclosure is un- avoidable during the course of the investigation. (c) PROHIBITION ON REPRISAL.—Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to that authority, take or threaten to take any action against any em- ployee as a reprisal for making a complaint or disclosing information to an Inspector General, unless the complaint was made or the informa- tion disclosed with the knowledge that it was false or with willful disregard for its truth or falsity. (Pub. L. 117–286, § 3(b), Dec. 27, 2022, 136 Stat. 4224.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 407 ............. 5 U.S.C. App. (IGA § 7) Pub. L. 95–452, § 7, Oct. 12, 1978, 92 Stat. 1105. § 408. Additional provisions with respect to the Inspector General of the Department of De- fense (a) INSPECTOR GENERAL.—A member of the Armed Forces, active or reserve, shall not be ap- pointed Inspector General of the Department of Defense. (b) AUTHORITY OF SECRETARY OF DEFENSE.— (1) IN GENERAL.—Notwithstanding the last two sentences of section 403(a) of this title, the Inspector General shall be under the au- thority, direction, and control of the Sec- retary of Defense with respect to audits or in- vestigations, or the issuance of subpoenas, which require access to information con- cerning— (A) sensitive operational plans; (B) intelligence matters; (C) counterintelligence matters; (D) ongoing criminal investigations by other administrative units of the Depart- ment of Defense related to national security; or (E) other matters the disclosure of which would constitute a serious threat to national security. (2) AUTHORITY TO PROHIBIT AUDIT OR INVES- TIGATION.—With respect to the information de- scribed in paragraph (1), the Secretary of De- fense may prohibit the Inspector General from initiating, carrying out, or completing any audit or investigation, from accessing infor- mation described in paragraph (1), or from issuing any subpoena, after the Inspector Gen- eral has decided to initiate, carry out, or com- plete such audit or investigation, access such information, or to issue such subpoena, if the Secretary determines that such prohibition is necessary to preserve the national security in- terests of the United States. (3) STATEMENT CONCERNING EXERCISE OF POWER.—If the Secretary of Defense exercises any power under paragraph (1) or (2), the In- spector General shall submit a statement con- cerning that exercise of power within 30 days to the Committee on Armed Services and the Committee on Homeland Security and Govern- mental Affairs of the Senate and the Com- mittee on Armed Services and the Committee on Oversight and Reform of the House of Rep- resentatives and to other appropriate commit- tees or subcommittees of the Congress. (4) STATEMENT OF REASONS FOR EXERCISE OF POWER.—The Secretary shall, within 30 days after submission of a statement under para- graph (3), transmit a statement of the reasons for the exercise of power under paragraph (1) or (2) to the congressional committees speci- fied in paragraph (3) and to other appropriate committees or subcommittees. (c) ADDITIONAL DUTIES AND RESPONSIBILITIES.— In addition to the other duties and responsibil- ities specified in this chapter, the Inspector General of the Department of Defense shall— (1) be the principal adviser to the Secretary of Defense for matters relating to the preven- tion and detection of fraud, waste, and abuse in the programs and operations of the Depart- ment; (2) initiate, conduct, and supervise such au- dits and investigations in the Department of Defense (including the military departments) as the Inspector General considers appro- priate; (3) provide policy direction for audits and in- vestigations relating to fraud, waste, and abuse and program effectiveness; (4) investigate fraud, waste, and abuse un- covered as a result of other contract and inter- nal audits, as the Inspector General considers appropriate; (5) develop policy, monitor and evaluate pro- gram performance, and provide guidance with respect to all Department activities relating to criminal investigation programs; (6) monitor and evaluate the adherence of Department auditors to internal audit, con- tract audit, and internal review principles, policies, and procedures; (7) develop policy, evaluate program per- formance, and monitor actions taken by all components of the Department in response to contract audits, internal audits, internal re- view reports, and audits conducted by the Comptroller General of the United States; (8) request assistance as needed from other audit, inspection, and investigative units of the Department of Defense (including military departments); (9) give particular regard to the activities of the internal audit, inspection, and investiga- tive units of the military departments with a view toward avoiding duplication and ensuring effective coordination and cooperation; and (10) conduct, or approve arrangements for the conduct of, external peer reviews of De- partment of Defense audit agencies in accord- ance with, and in such frequency as provided by, Government auditing standards as estab- lished by the Comptroller General of the United States. (d) REPORTING VIOLATIONS OF CHAPTER 47 OF TITLE 10.—Notwithstanding section 404(d) of this title, the Inspector General of the Department of Defense shall expeditiously report suspected Page 51 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 408 1 So in original. The comma probably should not appear. or alleged violations of chapter 47 of title 10 (Uniform Code of Military Justice), to the Sec- retary of the military department concerned or the Secretary of Defense. (e) MEMBER OF ARMED FORCES DEEMED TO BE EMPLOYEE.—For the purposes of section 407 of this title, a member of the Armed Forces shall be deemed to be an employee of the Department of Defense, except that, when the Coast Guard operates as a service of another department or agency of the Federal Government, a member of the Coast Guard shall be deemed to be an em- ployee of that department or agency. (f) REPORTS.— (1) REPORTS TRANSMITTED TO CONGRESSIONAL COMMITTEES.—Each semiannual report pre- pared by the Inspector General of the Depart- ment of Defense under section 405(b) of this title shall be transmitted by the Secretary of Defense to the Committees on Armed Services and on Homeland Security and Governmental Affairs of the Senate and the Committees on Armed Services and on Oversight and Reform of the House of Representatives and to other appropriate committees or subcommittees of Congress. Each report shall include— (A) information concerning the numbers and types of contract audits conducted by the Department during the reporting period; and (B) information concerning any Depart- ment of Defense audit agency that, during the reporting period, has either received a failed opinion from an external peer review or is overdue for an external peer review re- quired to be conducted in accordance with subsection (c)(10). (2) ADDITIONAL REPORTS TRANSMITTED TO CON- GRESSIONAL COMMITTEES.—Any report required to be transmitted by the Secretary of Defense to the appropriate committees or subcommit- tees of the Congress under section 405(e) of this title shall also be transmitted, within the 7-day period specified in section 405(e) of this title, to the congressional committees speci- fied in paragraph (1). (g) NON-APPLICABILITY OF SECTION 1385 OF TITLE 18.—The provisions of section 1385 of title 18,1 shall not apply to audits and investigations conducted by, under the direction of, or at the request of the Inspector General of the Depart- ment of Defense to carry out the purposes of this chapter. (h) GENERAL COUNSEL TO INSPECTOR GENERAL OF DEPARTMENT OF DEFENSE.— (1) IN GENERAL.—There is a General Counsel to the Inspector General of the Department of Defense, who shall be appointed by the Inspec- tor General of the Department of Defense. (2) DUTIES AND FUNCTIONS.— (A) Notwithstanding section 140(b) of title 10, the General Counsel is the chief legal of- ficer of the Office of the Inspector General. (B) The Inspector General is the exclusive legal client of the General Counsel. (C) The General Counsel shall perform such functions as the Inspector General may prescribe. (D) The General Counsel shall serve at the discretion of the Inspector General. (3) OFFICE OF GENERAL COUNSEL.—There is an Office of the General Counsel to the Inspector General of the Department of Defense. The In- spector General may appoint to the Office to serve as staff of the General Counsel such legal counsel as the Inspector General con- siders appropriate. (i) AUTHORITY TO REQUIRE ATTENDANCE AND TESTIMONY OF WITNESSES.— (1) SUBPOENA.—The Inspector General of the Department of Defense is authorized to re- quire by subpoena the attendance and testi- mony of witnesses as necessary in the per- formance of functions assigned to the Inspec- tor General by this chapter, except that the Inspector General shall use procedures other than subpoenas to obtain attendance and tes- timony from Federal employees. (2) ENFORCEMENT.—A subpoena issued under this subsection, in the case of contumacy or refusal to obey, shall be enforceable by order of any appropriate United States district court. (3) NOTIFICATION.—The Inspector General shall notify the Attorney General 7 days be- fore issuing any subpoena under this section. (Pub. L. 117–286, § 3(b), Dec. 27, 2022, 136 Stat. 4224.) AMENDMENTS NOT SHOWN IN TEXT This section was derived from section 8 of the Inspector General Act of 1978, Pub. L. 95–452, which was set out in the former Appendix to this title, and as it existed as of Oct. 19, 2021. Section 8 of Pub. L. 95–452 was amended by Pub. L. 117–263, div. E, title LII, § 5272(3), Dec. 23, 2022, 136 Stat. 3239, prior to being repealed and reenacted as this section by Pub. L. 117–286, §§ 3(b), 7, Dec. 27, 2022, 136 Stat. 4224, 4361. For applicability of those amendments to this section, see section 5(b) of Pub. L. 117–286, set out in a Transitional and Savings Provisions note preceding section 101 of this title. Section 8 of Pub. L. 95–452 was amended as follows: (1) in subsection (b)— (A) in paragraph (3), by striking ‘‘the Com- mittees on Armed Services and Governmental Affairs of the Senate and the Committee on Armed Services and the Committee on Govern- ment Reform and Oversight of the House of Representatives and to other appropriate com- mittees or subcommittees of the Congress’’ and inserting ‘‘the appropriate congressional com- mittees, including the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representa- tives’’; and (B) in paragraph (4), by striking ‘‘and to other appropriate committees or subcommit- tees’’; and (2) in subsection (f)— (A) in paragraph (1), by striking ‘‘the Com- mittees on Armed Services and on Homeland Se- curity and Governmental Affairs of the Senate and the Committees on Armed Services and on Oversight and Government Reform of the House of Representatives and to other appropriate committees or subcommittees of Congress’’ and Page 52 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 409 inserting ‘‘the appropriate congressional com- mittees, including the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representa- tives’’; and (B) in paragraph (2), by striking ‘‘committees or subcommittees of the Congress’’ and inserting ‘‘congressional committees’’. The text directed to be stricken in subsections (b)(3) and (f)(1) did not appear exactly as quoted in the text enacted by Pub. L. 117–286. See Historical and Revision notes below. For definition of ‘‘appropriate congressional committees’’ as seen in the above amendments by Pub. L. 117–263, see Amendments Not Shown in Text note set out under section 401 of this title. HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 408 ............. 5 U.S.C. App. (IGA § 8) Pub. L. 95–452, § 8, Oct. 12, 1978, 92 Stat. 1105; Pub. L. 97–252, title XI, § 1117(b), Sept. 8, 1982, 96 Stat. 751; Pub. L. 100–504, title I, § 110(b), Oct. 18, 1988, 102 Stat. 2529; Pub. L. 104–106, div. A, title XV, § 1502(f)(6), Feb. 10, 1996, 110 Stat. 510; Pub. L. 106–65, div. A, title X, § 1067(17), Oct. 5, 1999, 113 Stat. 775; Pub. L. 110–417, [div. A], title IX, § 907, Oct. 14, 2008, 122 Stat. 4569; Pub. L. 111–84, div. A, title X, § 1042, Oct. 28, 2009, 123 Stat. 2455; Pub. L. 112–239, div. A, title XVI, § 1614, Jan. 2, 2013, 126 Stat. 2066; Pub. L. 114–317, § 6(1), Dec. 16, 2016, 130 Stat. 1604. In subsection (b)(3), the words ‘‘Committee on Home- land Security and Governmental Affairs of the Senate’’ are substituted for ‘‘[Committee on] Governmental Af- fairs of the Senate’’ on authority of Senate Resolution No. 445, 108th Congress, October 9, 2004 (effective Janu- ary 4, 2005). In subsection (b)(3), the words ‘‘Committee on Over- sight and Reform’’ are substituted for ‘‘Committee on Government Reform and Oversight’’ on authority of House Resolution No. 5 (106th Congress, January 6, 1999), House Resolution No. 6 (110th Congress, January 5, 2007), and rule X(1)(n) of the Rules of the House of Representatives, adopted by House Resolution No. 6 (116th Congress, January 9, 2019). In subsection (c)(9), the word ‘‘ensuring’’ is sub- stituted for ‘‘insuring’’ for clarity. In subsection (f)(1) (matter before subparagraph (A)), the words ‘‘[Committee on] Oversight and Reform’’ are substituted for ‘‘[Committee on] Oversight and Govern- ment Reform’’ on authority of rule X(1)(n) of the Rules of the House of Representatives, adopted by House Res- olution No. 6 (116th Congress, January 9, 2019). Statutory Notes and Related Subsidiaries CHANGE OF NAME Committee on Oversight and Reform of House of Rep- resentatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023. § 409. Special provisions concerning the Agency for International Development (a) DEFINITION OF AGENCY FOR INTERNATIONAL DEVELOPMENT.—As used in this chapter, the term ‘‘Agency for International Development’’ includes any successor agency primarily respon- sible for administering part I of the Foreign As- sistance Act of 1961 (22 U.S.C. 2151 et seq.). (b) MEMBERS OF FOREIGN SERVICE.—In addition to the officers and employees provided for in section 406(a)(7) of this title, members of the Foreign Service may, at the request of the In- spector General of the Agency for International Development, be assigned as employees of the Inspector General. Members of the Foreign Serv- ice so assigned shall be responsible solely to the Inspector General, and the Inspector General (or the Inspector General’s designee) shall prepare the performance evaluation reports for the members assigned as employees of the Inspector General. (c) FIELD OFFICES.—In establishing and staff- ing field offices pursuant to section 406(d) of this title, the Administrator of the Agency for Inter- national Development shall not be bound by overseas personnel ceilings. (d) ADDITIONAL OFFICER.—The Inspector Gen- eral of the Agency for International Develop- ment shall be in addition to the officers pro- vided for in section 624(a) of the Foreign Assist- ance Act of 1961 (22 U.S.C. 2384(a)). (Pub. L. 117–286, § 3(b), Dec. 27, 2022, 136 Stat. 4227.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 409(a) ......... 5 U.S.C. App. (IGA § 8A(f)) Pub. L. 95–452, § 8A(f), for- merly (h), as added Pub. L. 97–113, title VII, § 705(a)(3), Dec. 29, 1981, 95 Stat. 1545; redesignated (f), Pub. L. 105–277, div. G, subdiv. A, title XIV, § 1422(b)(2)(C), Oct. 21, 1998, 112 Stat. 2681–792. 409(b) ......... 5 U.S.C. App. (IGA § 8A(c)) Pub. L. 95–452, § 8A(c), for- merly (d), as added Pub. L. 97–113, title VII, § 705(a)(3), Dec. 29, 1981, 95 Stat. 1545; redesignated (c), Pub. L. 105–277, div. G, subdiv. A, title XIV, § 1422(b)(2)(C), Oct. 21, 1998, 112 Stat. 2681–792. 409(c) ......... 5 U.S.C. App. (IGA § 8A(d)) Pub. L. 95–452, § 8A(d), for- merly (e), as added Pub. L. 97–113, title VII, § 705(a)(3), Dec. 29, 1981, 95 Stat. 1545; redesignated (d), Pub. L. 105–277, div. G, subdiv. A, title XIV, § 1422(b)(2)(C), Oct. 21, 1998, 112 Stat. 2681–792; Pub. L. 114–317, § 7(d)(2)(E), Dec. 16, 2016, 130 Stat. 1606. 409(d) ......... 5 U.S.C. App. (IGA § 8A(e)) Pub. L. 95–452, § 8A(e), for- merly (g), as added Pub. L. 97–113, title VII, § 705(a)(3), Dec. 29, 1981, 95 Stat. 1545; redesignated (e), Pub. L. 105–277, div. G, subdiv. A, title XIV, § 1422(b)(2)(C), Oct. 21, 1998, 112 Stat. 2681–792. In subsection (b), the reference to ‘‘section 406(a)(7) of this title’’ is substituted for ‘‘section 6(a)(6) of this Act’’ for clarity and to correct an error in the law. In the source law (section 8A(c) of the Inspector General Act of 1978), the reference to ‘‘section 6(a)(6) of this Act’’ is incorrect. Section 6(a)(6) of the Inspector Gen- eral Act of 1978 was redesignated as section 6(a)(7) of that Act by section 107(1) of the Inspector General Act Amendments of 1988 (Public Law 100–504, 102 Stat. 2528). In subsection (c), the words ‘‘overseas personnel ceil- ings’’ are substituted for ‘‘overseas personnel ceilings established under the Monitoring Overseas Direct Em- ployment policy’’ to eliminate obsolete language. The