Developments at the OSC: On September 10, 2013, the U.S. Office of Special Counsel (OSC) issued its annual report to Congress for Fiscal Year 2012. This report demonstrated greatly increasing enforcement activity by OSC, but also increased hurdles for cases reaching the investigation stage and increased case backlogs.
OSC reported an overall 19% increase in overall new matters for processing (to almost 4800) over the prior fiscal year. Total favorable actions on prohibited personnel practice (PPP) complaints nearly doubled over the same period, to 159 (the figure was only 29 as recently as FY 2007). Mediations on PPP complaints at OSC more than quadrupled over the prior fiscal year, going from 31 to 129. While activity on OSC’s Hatch Act cases also increased, that increase is likely to drop off in the future due to the effects of last year’s Hatch Act amendments, which were previously analyzed in this blog. OSC also completed processing on 92 USERRA cases on a 36-month demonstration program, 24 of which (26%) with corrective action obtained.
However, given flat staffing resources for OSC, this increase in cases also has led to backlogs. Processing of PPP complaints within 240 calendar days decreased 4% over the prior fiscal year, and the backlog of pending matters increased 31%. Perhaps most notably, selectivity by the OSC Complaints Examining Unit (CEU) has also increased. Before any employee’s PPP complaint is investigated or mediated by OSC, the complaint has to first be approved by the CEU. If a complaint is not approved by the CEU, then OSC concludes processing. For most categories of PPPs, the employee has no Independent Right of Action to then take the case directly to the Merit Systems Protection Board, and so a rejection by CEU ends the case. While overall new PPP complaints increased 15% over FY 2011 and overall PPP complaint closures by OSC increased almost 10%, PPP case referrals by the CEU decreased over 6% in FY 2012. When compared against the overall case volume of PPP complaints, CEU’s acceptance rate for PPP cases went down over 14% compared to FY 2011, although still up 73% over the CEU’s FY 2007 PPP acceptance rates.
If you believe that you have been the subject of whistleblower reprisal or any other Prohibited Personnel Practice, please contact Passman & Kaplan to request an initial consultation.