What Happens Next

How can OSC remedy a prohibited personnel practice?

General. Current and former federal employees and applicants for federal employment may report suspected prohibited personnel practices to the OSC. The matter will be investigated, and if there is sufficient evidence to prove a violation, OSC can seek corrective action, disciplinary action, or both. Alternatively, parties in selected cases may agree to mediate their dispute in order to reach a mutually agreeable resolution of the PPP complaint.

Corrective action. OSC may enter into discussions with an agency at any stage of a pending matter in pursuit of a resolution acceptable to all parties. OSC follows a policy of early negotiation to obtain appropriate corrective action (and/or disciplinary action) for apparent violations.

OSC is required by law to first seek voluntary corrective action from the agency involved. If the agency fails to remedy a prohibited personnel practice upon request by OSC, corrective action may also be obtained through litigation before MSPB. Such litigation begins with the filing of a petition by OSC, alleging that there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is about to occur. Corrective actions that can be ordered by MSPB include job restoration, reversal of suspensions and other adverse actions, reimbursement of attorney's fees, back pay, medical and other costs and damages.

Ref: 5 U.S.C. § 1214

Note: Pursuant to 5 U.S.C. § 1221, current or former federal employees and applicants who allege that they were subjected to any personnel action because of whistleblowing may seek corrective action in an appeal to MSPB. Such an appeal is known as an "individual right of action" (IRA). By law, the employee or applicant must 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

  • if OSC has not notified the complainant within 120 days of receiving an allegation of whistleblower reprisal that it will seek corrective action.

The Whistleblower Protection Enhancement Act of 2012 expands the IRA right to include most 2302(b)(9) reprisal claims, 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. (In considering an IRA, it should be noted that MSPB may refuse to take jurisdiction over any matters not specifically raised before the OSC.)

Disciplinary action. OSC may seek disciplinary action against any employee believed to be responsible for committing a prohibited personnel practice. OSC begins a disciplinary action case by filing a complaint with MSPB, charging an employee with the commission of a prohibited personnel practice, and seeking disciplinary action against that person. Rights of employees against whom OSC seeks disciplinary action in these cases are set forth in MSPB regulations, at 5 C.F.R. Part 1201, Subpart D. Individuals found by MSPB to have committed a prohibited personnel practice are subject to removal, reduction in grade, debarment from federal employment for up to five years, suspension, reprimand, or fine of up to $1,000. or a combination of these potential disciplinary actions.

In the alternative, at any time during its investigation of a matter, OSC may authorize the agency involved to take disciplinary action against an employee believed to be responsible for committing a prohibited personnel practice. Pursuant to 5 U.S.C. § 1214(f), during any OSC investigation under title 5, an agency may not take disciplinary action against any employee for any alleged prohibited activity under investigation, or for any related activity, without approval from OSC.

Ref: 5 U.S.C. § 1215

Intervention. The Special Counsel may intervene as a matter of right, or otherwise participate in most proceedings before MSPB. The Special Counsel may not intervene in certain proceedings (individual rights of action brought under 5 U.S.C. §1221, or matters otherwise appealable to MSPB under 5 U.S.C. § 7701 without the consent of the person initiating the proceeding.

Ref: 5 U.S.C. § 1212(c)