By John V. Berry, Esq., www.berrylegal.com
We represent and advise federal employees in the filing of Office of Special Counsel (OSC) complaints against their federal agencies and federal supervisors involved in such complaints. A number of issues can arise when an OSC complaint is contemplated that should be considered by a federal employee before proceeding. This article is a short summary of the OSC complaint process.
What Does the OSC Investigate?
The OSC principally investigates 2 types of cases brought by federal employees: (1) complaints involving prohibited personnel practices by federal agencies (including whistleblower retaliation); and (2) complaints involving Hatch Act (political activities of federal employees) violations. The OSC also maintains a disclosure unit where illegal activities can be reported to and maintains a role with respect to USERRA complaints.
From our experience, the majority of cases that we have seen involve prohibited personnel practices. These types of cases involve issues where a federal employee has previously reported wrongdoing or government waste and has suffered retaliation as a result at the hands of their federal agency or supervisors. Some examples could include:
Ex 1. A federal employee reports theft from an agency and is then transferred to an undesirable position as a result of the reporting.
Ex. 2 A federal employee reports nepotism regarding his supervisor and is disciplined (i.e. a short suspension that does not fall under the MSPB appeals process) in retaliation for the reporting of the issue.
Items to Consider Before Filing a OSC Complaint
The first step prior to filing an OSC complaint is for a federal employee to determine whether or not they should file their complaint with the OSC or perhaps a federal agency’s Office of Inspector General (OIG). An initial disclosure of illegal activity can potentially be brought to either forum. However, there can be advantages to filing an allegation of retaliation for whistleblowing with the OSC. To determine the best forum in which to file a federal employee’s whistleblower complaint, they should speak to an attorney.
Filing the OSC Complaint
The first step in filing a complaint with the OSC is to complete the appropriate forms and submit them to the OSC. The OSC’s main 3 forms are the:
OSC Form 11 – Prohibited Personnel Practices (PPP) Complaint;
OSC Form 12 – Whistleblower Disclosure Complaint; and
OSC Form 13 – Hatch Act Violations.
PPP Complaints and Whistleblower Disclosures can generally be submitted online at www.osc.gov through the OSC e-filing system or through regular mail submission. Hatch Act violations typically must be completed and submitted by mail to the OSC.
The OSC Investigation Stage
Once the OSC receives the complaint, it is reviewed by OSC staff and a letter to the complainant will generally be sent to the filer notifying them of the OSC investigation process and providing the contact name of the OSC investigator assigned to the case. The investigator will generally request a response from the Agency prior to discussing the matter further with a complainant or the Agency.
The investigator may then ask for additional information from either party during the investigations process. If it looks like the OSC is not going to make a finding on the federal employee’s complaint, the investigator will generally send out a notice indicating their tentative conclusions and providing the individual a chance to respond further before a final ruling is rendered.
There is also the potential for mediation of OSC complaints through the OSC mediation program in an attempt to resolve the complaints in an attempt to avoid the longer investigations process.
Final Action by the OSC
When the OSC completes its investigation, depending on the type of case filed, it can either take action or decline to take action. If the OSC takes action, it will first report the investigation to the federal agency head and ask for certification that corrective action is being taken in the case. If the federal agency declines to take action, the OSC can seek corrective action at the Merit Systems Protection Board (MSPB) and the office will function much like a prosecutor’s office. While criminal violations are referred by the OSC to the Department of Justice, the OSC can then attempt to seek corrective action against the federal employees involved in the prohibited personnel practices. Corrective action can include disciplinary action against the federal employees involved in the improprieties or illegal actions.
If the OSC declines to take action, which occurs in a majority of cases, then the complainant may have further appeal rights. For cases alleging whistleblower retaliation, the federal employee will be provided notice of their right to take their whistleblower case to the MSPB for litigation. In many cases, it is a requirement for a federal employee to take a reprisal complaint to the OSC first, prior to filing an Individual Right of Action (IRA) (whistleblower appeal) to the MSPB. See 5 U.S.C. § 1214 Circumstances vary, so legal counsel is important for specific legal advice. For other types of OSC complaints there is not necessarily a further right to appeal.
When a federal employee is considering filing an OSC complaint it is important to obtain legal counsel. Our law firm advises and represents federal employees in desk audit reviews. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. The firm’s Facebook page is located at Berry & Berry Facebook Page.