In some circumstances, individuals who have experienced a prohibited personnel practice can raise the issue in one of three different places: (1) Employee appeals to the MSPB under Chapter 77 (i.e., a formal appeal of a removal, demotion, suspension greater than 14 days, and other significant personnel actions); (2) a grievance through the negotiated grievance procedure (i.e., union grievance); or (3) by filing a complaint with OSC. Individuals are limited, by law, to choosing only one of those forums.
Please note that OSC cannot provide you with legal or practical advice on deciding which remedy is best for you. You may wish to research the issues or consult with others on that matter. Be advised, however, that collective bargaining agreements and MSPB appeals generally involve deadlines in filing for relief.
Can OSC intervene or file an amicus curiae brief before the Merit Systems Protection Board (MSPB)?
Yes, under certain circumstances. OSC has the authority to formally submit its views on cases pending before the Merit Systems Protection Board (MSPB) in one of two ways: intervention or an amicus curiae (friend of the court) brief.
OSC may choose to intervene in matters it deems highly significant to the proper functioning of the merit system, including cases under the Whistleblower Protection Act. In certain types of cases, OSC must obtain the consent of the person who filed the appeal before intervening. Given our limited resources, OSC cannot intervene on most cases.
An amicus curiae brief is a legal argument provided to a court by a person or group who is not a party to the case, but who could be affected by the legal questions it raises. OSC may submit amicus curiae briefs to comment on legal issues that affect our ability to investigate and prosecute prohibited personnel practices. Pursuant to 5 C.F.R. § 1201.34(e), the MSPB has discretion to accept or reject these submissions.
If you would like OSC to consider a request to intervene or file an amicus curiae brief, send an email to amicus@osc.gov. Please include:
The case name and docket number, if they have been assigned;
Whether you are requesting intervention or an amicus curiae brief;
What, if any, action the MSPB has taken in the matter to date;
Whether any MSPB proceedings are scheduled and, if so, what they are about and when they will be held; and
Why you are seeking OSC's participation, including a description of any novel or important legal issue in the proceeding.
Are federal employees required to cooperate with OSC investigations?
Federal employees must cooperate and provide testimony, information, and documents during OSC's investigations. The same rule requires federal agencies to make employees available to testify, on official time, and to provide pertinent records. It is unlawful for agency management to retaliate against a person for providing information to OSC. If necessary, OSC may issue subpoenas for documents or the attendance and testimony of employees. During an investigation, OSC may require employees and others to testify under oath, sign written statements, or respond formally to written questions.
Generally, the information you provide to OSC will remain confidential. Information in OSC investigative files is protected from disclosure under the Freedom of Information Act. Neither the complainant nor the agency will ordinarily have access to information provided to OSC. In a limited number of cases where OSC determines that a violation has occurred, OSC may include the information gathered in an investigation in a report to your agency, the MSPB, or the Office of Personnel Management.
For more information, see Your Role in an OSC Investigation.
What if I’m the subject or witness of an OSC investigation?
Subjects
Subjects are agency officials or employees who are responsible for the personnel action(s) or other prohibited activity at issue in the investigation. OSC routinely interviews such officials to obtain information about the allegations in the complaint. If OSC finds that an agency official or employee committed a prohibited personnel practice or Hatch Act violation, that individual may be subject to disciplinary action. For this reason, some, but not all, of the persons OSC designates as subjects request legal representation during their interviews.
Witnesses
Witnesses are individuals who have or may have information about the matter under investigation. For example, they may be personnel officials, co-workers of the complainant, or other persons who have knowledge of events related to the complaint. Witnesses seldom request to have legal representation because they are not the persons responsible for the actions at issue in the complaint.
Can agency lawyers be present at OSC interviews?
OSC permits witnesses and subject officials to have personal legal counsel present at an investigative interview. Witnesses and subjects who choose to have legal representation at investigative interviews conducted by OSC investigators and attorneys complete an OSC Designation of Representation form. OSC will not permit legal counsel to be present at an OSC investigative interview without a signed form. You are responsible for arranging for your own legal representation. The representative must be an attorney. OSC will not recommend, designate or arrange for representation for any witness or subject. OSC will, however, permit a reasonable amount of time to arrange for representation.
There can be ethical implications for an attorney who is employed by an agency to act as the personal legal representative of a subject official or witness who is or was an employee of the same agency. Consequently, OSC may not always allow an agency employee to be represented by an attorney from the same agency.
Can I have an attorney present at my OSC interview?
OSC permits subjects and witnesses to have a personal legal representative at interviews. You are responsible for arranging for your own legal representation. If you decide that you want to have a personal legal representative present during your interview, you must inform OSC before the interview and provide OSC with a completed Designation of Personal Legal Representation form. Both you and your attorney must sign the form.
There can be ethical implications for agency counsel to act as the personal legal representative of a subject or witness who is or was an employee of the same agency. OSC will permit agency counsel to attend interviews only if, in their personal capacity, they represent the individual being interviewed, and not the agency, for purposes of the matter under investigation. If agency counsel is not personally representing the individual being interviewed, he/she is not permitted to attend the interview. To protect subjects and witnesses and to prevent conflicts of interest from compromising the OSC investigation, the Designation of Personal Legal Representation form contains specific language addressing those situations where individuals request to be represented by agency counsel. Agency liaisons and points of contact should not serve as the personal legal representatives of any subject or witness.
For more information, see Policy Statement on Personal Legal Representation at Interviews.
What other violations of law may OSC investigate?
OSC is authorized by law to investigate and seek appropriate corrective and disciplinary action for:
Activities prohibited by any civil service law, rule, or regulation (including any activity relating to political intrusion in personnel decision making);
Arbitrary or capricious withholding of information under the Freedom of Information Act (generally, OSC requires final agency action on a FOIA request and appeal, or a court decision finding improper withholding of information available under the FOIA before taking action on these claims); and
Involvement by any employee in any prohibited discrimination found by a court or administrative authority to have occurred in the course of any personnel action.