The U.S. Office of Special Counsel (OSC) is the independent federal agency charged with protecting federal employees from prohibited employment actions by federal agencies. Specifically, OSC investigates allegations of prohibited personnel practices (PPP) which is defined under 5 U.S.C. § 2302(b)(9) and includes whistleblower retaliation, discrimination, and violations of merit systems principles. OSC processes thousands of complaints each year; in fiscal year 2022, OSC received more than 2,200 new PPP complaints (OSC FY 2022 Annual Report to Congress at 17).
What Can Federal Employees Expect After Filing a Complaint with OSC?
Complaints filed with OSC are screened to determine whether the allegations are within OSC’s jurisdiction and, if so, whether further investigation is warranted. In some cases, OSC will decide not to pursue the complaint and the case will be closed. If OSC determines that a complaint is within OSC’s jurisdiction and is supported by evidence, the complainant should be prepared for several possibilities.
Settlement. In some cases, the OSC attorney or investigator assigned to the case may attempt to resolve the complaint through a negotiated settlement. This can be done through informal settlement discussions or, with the agreement of both of the parties, OSC may choose to conduct a mediation session with an OSC mediator. Any settlement reached must be approved by both the complainant and the federal agency.
Corrective Action. For cases where informal settlement is improbable or unsuccessful, OSC will conduct a further review and investigation of the complaint to determine whether there is enough evidence to warrant corrective and/or disciplinary action. While OSC does not have the authority to force an agency to resolve a complaint, OSC may make a formal request for the agency to take corrective or disciplinary action. In some cases, OSC may draft a formal report setting forth OSC’s findings and recommendations. If the agency still refuses to comply with OSC’s recommendations, OSC may bring an enforcement action on behalf of the federal employee before the MSPB.
MSPB Appeals. If OSC decides not to further investigate a complaint, or if efforts to resolve the complaint are unsuccessful, an employee may independently pursue an individual right of action (IRA) appeal seeking corrective and/or disciplinary action from the MSPB. An IRA appeal filed with the MSPB will be assigned to an administrative judge who will preside over the administrative hearing process and issue a decision on the merits of the appeal.
How Can an Attorney Help?
While a federal employee is not required to retain an attorney to bring an OSC complaint, an experienced attorney can be an effective and valuable advocate in cases before OSC. In addition to assisting with preparation of the initial complaint, an attorney can provide advice and guidance during each phase of the OSC complaints process. Complainants can expect to be contacted by OSC throughout its investigation to discuss relevant facts and events; an attorney can assist with identifying and collecting the most important evidence to present to OSC in support of the allegations. Additionally, when an agency agrees to engage in settlement discussions or participate in mediation, an attorney can assist with negotiating settlements and reviewing settlement proposals to ensure that any informal resolution is in the best interest of the complainant.
It is important to remember that, throughout the OSC complaint process, the agency will be represented by an attorney. By seeking the advice of an experienced attorney, a federal employee can be well-prepared to navigate the OSC process at every stage.