Prohibited personnel practices in the Federal Bureau of Investigation

5 U.S.C. § 2303

• Title: 5 — Government Organization and Employees
• Chapter: 23 — MERIT SYSTEM PRINCIPLES

Text

(a) Any employee of the Federal Bureau of Investigation who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority, take or fail to take a personnel action with respect to an employee in, or applicant for, a position in the Bureau as a reprisal for a disclosure of information—
(1) made—
(A) in the case of an employee, to a supervisor in the direct chain of command of the employee, up to and including the head of the employing agency;
(B) to the Inspector General;
(C) to the Office of Professional Responsibility of the Department of Justice;
(D) to the Office of Professional Responsibility of the Federal Bureau of Investigation;
(E) to the Inspection Division of the Federal Bureau of Investigation;
(F) as described in section 7211;
(G) to the Office of Special Counsel; or
(H) to an employee designated by any officer, employee, office, or division described in subparagraphs (A) through (G) for the purpose of receiving such disclosures; and
(2) which the employee or applicant reasonably believes evidences—
(A) any violation of any law, rule, or regulation; or
(B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
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 applicant for, a position in the Bureau (other than a position of a confidential, policy-determining, policymaking, or policy-advocating character).
(b) The Attorney General shall prescribe regulations to ensure that such a personnel action shall not be taken against an employee of the Bureau as a reprisal for any disclosure of information described in subsection (a) of this section.
(c) The President shall provide for the enforcement of this section 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 reprisal under regulations promulgated under this section may appeal a final determination or corrective action order by the Bureau under those regulations to the Merit Systems Protection Board pursuant to section 1221.
(2) If no final determination or corrective action order has been made or issued for an allegation described in paragraph (1) before the expiration of the 180-day period beginning on the date on which the allegation is received by the Federal Bureau of Investigation, the employee described in that paragraph may seek corrective action directly from the Merit Systems Protection Board pursuant to section 1221.

History

(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

Editorial Notes

Amendments
2022—Subsec. (d). Pub. L. 117–263 added subsec. (d).
2016—Subsec. (a). Pub. L. 114–302 substituted "an employee in, or applicant for, a position in the Bureau as a reprisal for a disclosure of information—" for "any employee of the Bureau as a reprisal for a disclosure of information by the employee to the Attorney General (or an employee designated by the Attorney General for such purpose) which the employee or applicant reasonably believes evidences—" in introductory provisions, added pars. (1) and (2), and struck out former pars. (1) and (2) which read as follows:
"(1) a violation of any law, rule, or regulation, or
"(2) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety".
1989—Subsec. (c). Pub. L. 101–12 substituted "applicable provisions of sections 1214 and 1221" for "the provisions of section 1206".

Statutory Notes and Related Subsidiaries

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

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, subcontractor, grantee, subgrantee, or personal services contractor, of the Federal Bureau of Investigation who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority, take or fail to take a personnel action with respect to a contractor employee as a reprisal for a disclosure of information—
"(A) made—
"(i) to a supervisor in the direct chain of command 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 Bureau 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 disclosures; and
"(B) which the contractor employee reasonably believes evidences—
"(i) any violation of any law, rule, or regulation (including with respect to evidence of another employee 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 undertaken at the request of an official of the Federal Bureau of Investigation, unless the request takes the form of a nondiscretionary directive and is within the authority of the official making the request.
"(3) Regulations.—The Attorney General shall prescribe regulations to ensure that a personnel action described in paragraph (1) shall not be taken against a contractor employee of the Federal Bureau of Investigation 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 employee of a contractor, subcontractor, grantee, subgrantee, or personal services contractor, of the Federal 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 respect to a contractor employee."

Executive Documents

Delegation of Responsibilities Concerning FBI Employees 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 delegate to the Attorney General the functions concerning employees of the Federal Bureau of Investigation vested 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 establish appropriate processes within the Department of Justice to carry out these functions. Not later than March 1 of each year, the Attorney General shall provide a report to the President stating the number of allegations of reprisal received during the preceding calendar 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 calendar year.
All of the functions vested in the President by section 2303(c) of title 5, United States Code, and delegated to the Attorney General, may be redelegated, as appropriate, provided that such functions may not be redelegated to the Federal Bureau of Investigation.
You are authorized and directed to publish this memorandum in the Federal Register.