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Once a federal employee, applicant, or former employee files a complaint with OSC alleging that a prohibited personnel practice (PPP) occurred, OSC assigns the case to an examiner. Because of the high volume of complaints, there may be some delay before a complainant hears from OSC. Currently, 80 percent of complainants hear from the examiner within 60 to 90 days. Complainants who have additional information or questions about their complaint should contact the examiner assigned to their case. Complainants who do not know the name of the examiner assigned to the case can call 1-800-872-9855 or 202-804-7001.
When OSC reviews a complaint, we review all the material provided. We look to see whether there is enough evidence to show that a PPP likely has been, or will be, committed. The determination depends on whether the facts of the case appear to satisfy all of the requirements of the law.
If the evidence does not suggest that we could prove that a PPP occurred, we send a letter informing the complainant of the reasons for our preliminary determination. In most cases, this decision is not final. If OSC has jurisdiction over the case and made a determination on its merits, the complainant will have an opportunity to respond with additional information or to point out any errors or omissions in the preliminary determination. All determinations, whether preliminary or final, are sent in writing.
If OSC determines that the complaint warrants further inquiry, we inform the complainant in writing, and one of two things will happen. The complainant and the agency may be given the option of mediation (further information on OSC’s Alternative Dispute Resolution process is available here), or OSC may begin a more in-depth investigation that could lead to prosecution, if appropriate.
Employees or applicants may request that the Special Counsel seek to delay, or "stay," an adverse personnel action pending an OSC investigation. If the Special Counsel has reasonable grounds to believe that the proposed personnel action is the result of a PPP, OSC may ask the federal agency involved to delay the personnel action. If the agency does not agree to a delay, OSC may then file a legal request for a stay with the Merit Systems Protection Board (MSPB) to delay the personnel action. (Note: OSC cannot delay a personnel action on its own authority.) OSC’s decision to seek a legal stay from the MSPB is at the discretion of the Special Counsel. Stays are generally sought to delay the most serious personnel actions, such as removals, lengthy suspensions, or geographic reassignments. For more information, see OSC's Policy Statement on Stays.
OSC can seek corrective action (meaning an action that corrects what happened to the employee or applicant), disciplinary action (meaning an action that penalizes the federal official(s) who committed the PPP), or both. Frequently, parties engage in OSC’s Alternative Dispute Resolution (ADR) process and settle the issues with the help of a mediator.
Corrective action typically means that OSC seeks to place an employee or applicant in the position he or she would have occupied if no wrongdoing occurred. For example, an employee suspended for prohibited reasons would receive his or her back pay and related benefits, with interest, and a clean record. Corrective action can also include attorneys’ fees, as well as other reasonable and foreseeable costs. The law requires that OSC give the federal agency the opportunity to correct a PPP before filing a complaint with the MSPB.
OSC also has the authority to request that the MSPB discipline federal officials who committed PPPs. The law allows the Special Counsel to decide which cases are most appropriate for disciplinary action. Penalties for committing a PPP include removal, reduction in grade (demotion), debarment from federal employment for up to five years, suspension, reprimand, a fine of up to $1,000, or some combination of these penalties. Federal officials accused of committing a PPP in a disciplinary case have certain rights which can be found at 5 C.F.R. Part 1201, Subpart D.
Occasionally, while PPP cases are under investigation, federal agencies may seek to discipline the federal official(s) believed to be responsible for the PPP. If federal officials are under OSC investigation, federal agencies may not discipline them without OSC’s approval. 5 U.S.C. § 1214(f)
Employees or applicants who allege that they experienced retaliation because of whistleblowing under 5 U.S.C. § 2302(b)(8) may seek corrective action in appeals to the MSPB. Such an appeal is known as an "individual right of action" (or IRA). By law, the employee or applicant must first seek corrective action from OSC before filing an IRA. The IRA may be filed:
after OSC closes a matter in which reprisal for whistleblowing has been alleged; or
120 days after a complaint is filed with OSC if OSC has not notified the complainant that it will seek corrective action.
The Whistleblower Protection Enhancement Act of 2012 expands the IRA right to include most reprisal claims under 5 U.S.C. § 2302(b)(9), including:
retaliation for filing a whistleblower appeal, complaint or grievance;
retaliation for assisting an individual in the exercise of an appeal, complaint or grievance right;
retaliation for cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel; or
retaliation for refusing to obey an order that would require the individual to violate a law.
Procedures for filing an IRA are set forth in MSPB regulations at 5 C.F.R. Part 1209. (Note: In considering an IRA, the MSPB may refuse to accept any matters that were not specifically presented to OSC first. Similarly, the MSPB will only consider retaliation allegations in an IRA appeal.)
For more information, please see OSC fact sheets "How Complaints are Received and Processed," "How Complaints are Investigated and Prosecuted," and "How OSC’s Mediation Program Works." Other information is also available here.