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The U.S. Office of Special Counsel (OSC) today filed an amicus curiae (friend of the court) brief with the Merit Systems Protection Board (MSPB) to clarify a recent change in the law that extends protections to individuals who cooperate with or disclose information to any agency component responsible for internal investigation or review. Previously, those protections applied only to employees who contacted an agency's Inspector General (IG) or OSC.
In Mohler v. Department of Homeland Security, the appellant claimed retaliation in part for reporting a possible computer security violation to the agency's Computer Security Incident Response Center (CSIRC). In response, CSIRC reviewed the information and opened an investigation. Despite acknowledging these investigative steps, the MSPB's initial decision concluded without elaboration that CSIRC “does not investigate the agency; it investigates internal complaints and issues." Such a narrow reading of the law precluded the employee from protections against retaliation.
In its amicus curiae brief, OSC argues that the MSPB administrative judge misinterpreted the new amendment by creating an unwarranted distinction between agency components that investigate or review “the agency" and those that investigate or review “internal complaints and issues." The brief argues that Congress intended to expand this provision to include any agency component responsible for conducting internal investigations similar to those conducted by an IG or OSC.
To assist the MSPB in adjudicating these types of cases, OSC proposes a common-sense standard for identifying components of an agency with such investigation or review responsibilities. Specifically, an agency component should be covered if it has formalized procedures for reviewing or investigating potential misconduct, deficiencies, or risks. A clear, easy-to-follow standard is necessary for employees to know if they are protected when participating in an internal agency investigation or review. This approach would also serve as clear guidance to agencies that an employee's disclosure to or cooperation with an agency's investigative component is protected the same as interactions with an IG or OSC.