50 USC 3234 - Prohibited personnel practices in the intelligence community

View all text of Subchapter IX [§ 3231 - § 3244]

§ 3234. Prohibited personnel practices in the intelligence community

(a) DefinitionsIn this section:

(1) Agency

(2) Covered intelligence community elementThe term “covered intelligence community element”—

(A) means—

(i) the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office; and

(ii) any executive agency or unit thereof determined by the President under section 2302(a)(2)(C)(ii) of title 5 to have as its principal function the conduct of foreign intelligence or counterintelligence activities; and

(B) does not include the Federal Bureau of Investigation.

(3) Personnel actionThe term “personnel action” means, with respect to an employee in a position in a covered intelligence community element (other than a position excepted from the competitive service due to its confidential, policy-determining, policymaking, or policy-advocating character) or a contractor employee—

(A) an appointment;

(B) a promotion;

(D) a detail, transfer, or reassignment;

(E) a demotion, suspension, or termination;

(F) a reinstatement or restoration;

(G) a performance evaluation;

(H) a decision concerning pay, benefits, or awards;

(I) a decision concerning education or training if such education or training may reasonably be expected to lead to an appointment, promotion, or performance evaluation; or

(J) any other significant change in duties, responsibilities, or working conditions.

(4) Contractor employee

(b) Agency employeesAny employee of a covered intelligence community element or an agency 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, or threaten to take or fail to take, a personnel action with respect to any employee of a covered intelligence community element as a reprisal for—

(1) any lawful disclosure of information by the employee to the Director of National Intelligence (or an employee designated by the Director of National Intelligence for such purpose), the Inspector General of the Intelligence Community, a supervisor in the employee’s direct chain of command, or a supervisor of the employing agency with responsibility for the subject matter of the disclosure, up to and including the head of the employing agency (or an employee designated by the head of that agency for such purpose), the appropriate inspector general of the employing agency, a congressional intelligence committee, or a member of a congressional intelligence committee, which the employee reasonably believes evidences—

(A) a violation of any Federal law, rule, or regulation; or

(B) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;

(2) any lawful disclosure that complies with—

(A) subsections (a)(1), (d), and (g) of section 8H of the Inspector General Act of 1978 (5 U.S.C. App.); 1

1 See References in Text note below.

(B) subparagraphs (A), (D), and (H) of section 3517(d)(5) of this title; or

(3) if the actions do not result in the employee unlawfully disclosing information specifically required by Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs, any lawful disclosure in conjunction with—

(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;

(B) testimony for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A); or

(C) cooperation with or disclosing information to the Inspector General of an agency, in accordance with applicable provisions of law in connection with an audit, inspection, or investigation conducted by the Inspector General.

(1) Any employee of an agency or of a contractor, subcontractor, grantee, subgrantee, or personal services contractor, of a covered intelligence community element 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, or threaten to take or fail to take, a personnel action with respect to any contractor employee as a reprisal for—

(A) any lawful disclosure of information by the contractor employee to the Director of National Intelligence (or an employee designated by the Director of National Intelligence for such purpose), the Inspector General of the Intelligence Community, a supervisor in the contractor employee’s direct chain of command, or a supervisor of the employing or contracting agency or employing contractor with responsibility for the subject matter of the disclosure, up to and including the head of the employing or contracting agency (or an employee designated by the head of that agency for that purpose) or employing contractor, the appropriate inspector general of the employing or contracting agency, a congressional intelligence committee, or a member of a congressional intelligence committee, which the contractor employee reasonably believes evidences—

(i) a violation of any Federal law, rule, or regulation (including with respect to evidence of another employee or contractor employee accessing or sharing classified information without authorization); or

(ii) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.2

2 So in original. The period probably should be a semicolon.

(B) any lawful disclosure that complies with—

(i) subsections (a)(1), (d), and (g) of section 8H of the Inspector General Act of 1978 (5 U.S.C. App.); 1

(ii) subparagraphs (A), (D), and (H) of section 3517(d)(5) of this title; or

(iii) subparagraphs (A), (D), and (I) of section 3033(k)(5) of this title; or

(C) if the actions do not result in the contractor employee unlawfully disclosing information specifically required by Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs, any lawful disclosure in conjunction with—

(i) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;

(ii) testimony for or otherwise lawfully assisting any individual in the exercise of any right referred to in clause (i); or

(iii) cooperation with or disclosing information to the Inspector General of an agency, in accordance with applicable provisions of law in connection with an audit, inspection, or investigation conducted by the Inspector General.

(2) A personnel action under paragraph (1) is prohibited even if the action is undertaken at the request of an agency official, unless the request takes the form of a nondiscretionary directive and is within the authority of the agency official making the request.

(d) Rule of constructionConsistent with the protection of intelligence sources and methods, nothing in subsection (b) or (c) shall be construed to authorize—

(1) the withholding of information from Congress; or

(2) the taking of any personnel action against an employee who lawfully discloses information to Congress.

(e) DisclosuresA disclosure shall not be excluded from this section because—

(1) the disclosure was made to an individual, including a supervisor, who participated in an activity that the employee reasonably believed to be covered under subsection (b)(1)(B) or the contractor employee reasonably believed to be covered under subsection (c)(1)(A)(ii);

(2) the disclosure revealed information that had been previously disclosed;

(3) the disclosure was not made in writing;

(4) the disclosure was made while the employee was off duty;

(5) of the amount of time which has passed since the occurrence of the events described in the disclosure; or

(6) the disclosure was made during the normal course of duties of an employee or contractor employee.

(f) Enforcement

(g) Existing rights preservedNothing in this section shall be construed to—

(1) preempt or preclude any employee, contractor employee, or applicant for employment, at the Federal Bureau of Investigation from exercising rights provided under any other law, rule, or regulation, including section 2303 of title 5; or

(2) repeal section 2303 of title 5.

(July 26, 1947, ch. 343, title XI, § 1104, as added Pub. L. 113–126, title VI, § 601(a), July 7, 2014, 128 Stat. 1414; amended Pub. L. 115–118, title I, § 110(a), Jan. 19, 2018, 132 Stat. 15; Pub. L. 117–103, div. X, title V, § 501(a), (d)(2), (e)(1), (f), (g), Mar. 15, 2022, 136 Stat. 981–984; Pub. L. 117–263, div. F, title LXVI, § 6608, title LXVIII, § 6824(a)(8), Dec. 23, 2022, 136 Stat. 3559, 3615.)