A recent report from the Government Accountability Office found that the Office of Special Counsel’s backlog of whistleblower and prohibited personnel practices cases almost doubled between 2011 and 2016, even though the OSC has been actively working to reduce it. The GAO notes that the OSC increased the number of employees reviewing the cases and established a unit focusing on hybrid cases involving both a whistleblower disclosure and alleged retaliation. Nevertheless, the approximately 66-percent increase in cases filed since 2011 was enough to overcome those efforts and cause the backlog to increase.
The report warns that a sustained backlog threatens the OSC’s ability to fulfill its mission of protecting federal employees, noting that processing delays effectively delay justice. “Without timely resolutions, whistleblowers may be discouraged from filing whistleblower disclosures,” the report adds.
Officials from the OSC and GAO have said that several factors contributed to the increase in filings. First, the Whistleblower Protection Enhancement Act of 2012 clarified what types of disclosures by whistleblowers are protected and expanded the right to bring reprisal claims. It also enhanced the remedies for federal employee whistleblowers who suffer retaliation. The changes may have encouraged more filings.
Beyond that, in 2015 and 2016 the OSC conducted outreach events that probably encouraged filings. Also, there was a large number of filings in which federal employees characterized behaviors constituting prohibited personnel practices (PPP) as whistleblower cases. Currently, PPP and whistleblower cases run on parallel tracks, requiring wrongly-filed whistleblower complaints to be closed and reopened as PPP complaints.
According to the OSC, there are 14 prohibited personnel practices the OSC is authorized to investigate and prosecute:
- Considering inappropriate recommendations
- Coercing political activity
- Obstructing competition
- Influencing withdrawal from competition
- Granting unauthorized advantage
- Whistleblower retaliation
- Other retaliation
- Other discrimination
- Violating a veterans preference requirement
- Violating rules that implement a Merit System principle
- Imposing a nondisclosure agreement that doesn’t allow whistleblowing
- Accessing medical records in furtherance of another PPP
As you can see, whistleblower retaliation is listed as one of the prohibited personnel practices, making it easy to make a mistake. This is one reason why hiring a federal employment law attorney is a good idea before you file a whistleblower or PPP complaint.
According to the report, the median number of days between the time a referral letter is sent to an agency and the receipt of the initial agency response by OSC is 169 days — over 200 days in about a third of cases. This is often because the OSC virtually always approves agencies’ requests for additional time.
The report made a number of recommendations for the OSC, including reviewing those case extensions and improving communication with whistleblowers about processing times.