FY2007 Performance and Accountability Report 

November 15, 2007 

U.S. OFFICE OF SPECIAL COUNSEL

 1730 M Street, N.W., Suite 300 

 Washington, D.C. 20036-4505 

(www.osc.gov) 
FY 2007 Performance and Accountability Report 2

TABLE OF CONTENTS 

WWW.OSC.GOV 

 Page 

Message from the Special Counsel 3 

Part 1: Management Discussion and Analysis 4 

I. Agency at a Glance 4 

II. Statutory Background 4 

III. The Mission of the U.S. Office of Special Counsel 5 

IV. Organizational Structure of OSC 6 

V. Performance Goals and Results 8 

VI. OSC’s Systems, Controls, and Legal Compliance 10 

VII. Future Effects of Known Demands, Risks, Uncertainties, Events, Conditions and Trends 12 

VIII. Comments on Final FY 2007 Financial Statements 13 

Part 2: Performance 16 

Goals: Prohibited Personnel Practices ..................................................................................................... 17 

Goals: Hatch Act...................................................................................................................................... 22 

Goals: Whistleblower Disclosures........................................................................................................... 25 

Goals: USERRA ....................................................................................................................................... 33 

Part 3: Financial Section 37

CFO Letter .............................................................................................................................................. 38 

Independent Auditor’s Report................................................................................................................. 39 
FY 2007 Performance and Accountability Report 3

 

 A Message from the 

 Special Counsel 

It is my pleasure to present the Office of Special Counsel’s Performance and Accountability 

Report for Fiscal Year 2007. 

This agency has a proud history of serving the federal workforce and the public through its 

tenacious defense of the merit system principles that continue to safeguard the integrity of the 

executive branch agencies of the United States. 

Fiscal Year 2007 marks only the fourth year the Office of Special Counsel was required to have a 

financial audit. I am happy to report once again the agency’s strong results, which include no 

reportable conditions and no material weaknesses. 

To all of those who rely on our counsel, our service, and our protection, be assured that we will 

continue striving for excellence. Thank you for your continued trust and confidence. 

 Sincerely, 

 Scott J. Bloch 

 Special Counsel 
FY 2007 Performance and Accountability Report 4

Part 1: Management Discussion and Analysis 

I. Agency at a Glance 

The U.S. Office of Special Counsel (OSC) is an independent federal investigative and 

prosecutorial agency. Its primary mission is to safeguard the merit system in federal employment, 

by protecting employees and applicants from prohibited personnel practices (PPPs), especially 

reprisal for whistleblowing. In addition, the agency operates a secure channel for federal 

whistleblower disclosures of violations of law, rule or regulation; gross mismanagement; gross 

waste of funds; abuse of authority; and substantial and specific danger to public health and safety. 

OSC also has jurisdiction under the Hatch Act to enforce restrictions on political activity by 

government employees. Finally, OSC enforces federal employment rights secured by the 

Uniformed Services Employment and Reemployment Rights Act (USERRA). 

OSC currently has approximately 110 FTE. 

II. Statutory Background 

OSC was first established on January 1, 1979.1 From then until 1989, it operated as an 

autonomous investigative and prosecutorial arm of the Merit Systems Protection Board (“the 

Board”). By law, OSC received and investigated complaints from current and former federal 

employees, and applicants for federal employment, alleging prohibited personnel practices by 

federal agencies; provided advice on restrictions imposed by the Hatch Act on political activity by 

covered federal, state, and local government employees; and received disclosures from federal 

whistleblowers (current and former employees, and applicants for employment) about wrongdoing 

in government agencies. The office also enforced restrictions against prohibited personnel 

practices and political activity by filing, where appropriate, petitions for corrective and/ or 

disciplinary action with the Board. 

In 1989, Congress enacted the Whistleblower Protection Act. The law made OSC an 

independent agency within the Executive Branch, with continued responsibility for the functions 

described above. It also enhanced protections against reprisal for employees who disclose 

wrongdoing in the federal government, and strengthened OSC’s ability to enforce those 

protections. 2

The Congress passed legislation in 1993 that significantly amended Hatch Act provisions 

applicable to federal and District of Columbia (D.C.) government employees, and enforced by 

OSC.3 Provisions of the act enforced by OSC with respect to certain state and local government 

employees were unaffected by the 1993 amendments. 
FY 2007 Performance and Accountability Report 5

In 1994, the Uniformed Services Employment and Reemployment Rights Act became law. 

It defined employment-related rights of persons in connection with military service, prohibited 

discrimination against them because of that service, and gave OSC new authority to pursue 

remedies for violations by federal agencies.4

OSC’s 1994 reauthorization act expanded protections for federal employees, and defined 

new responsibilities for OSC and other federal agencies. It provided that within 240 days after 

receiving a prohibited personnel practice complaint, OSC should determine whether there are 

reasonable grounds to believe that such a violation occurred, exists, or is to be taken. The act 

extended the protections of certain legal provisions enforced by OSC to approximately 60,000 

employees of what was then known as the Veterans Administration (now the Department of 

Veterans Affairs), and to employees of certain government corporations. It also broadened the 

scope of personnel actions covered under these provisions. Finally, the act made federal agencies 

responsible for informing their employees of available rights and remedies under the 

Whistleblower Protection Act, and directed agencies to consult with OSC in that process. 5

In November of 2001, Congress enacted the Aviation and Transportation Security Act,6

which created the Transportation Security Administration (TSA). Under the act, non-security 

screener employees of TSA could file allegations of reprisal for whistleblowing with OSC and the 

MSPB. The approximately 45,000 security screeners in TSA, however, could not pursue such 

complaints at OSC or the MSPB. 

OSC efforts led to the signing of a memorandum of understanding (MOU) with TSA in 

May 2002, under which OSC would review whistleblower retaliation complaints from security 

screeners, and recommend corrective or disciplinary action to TSA when warranted. The MOU 

did not (and could not), however, provide for OSC enforcement action before the MSPB, or for 

individual right of action (IRA) appeals by security screeners to the MSPB. 

III. The Mission of the U.S. Office of Special Counsel 

OSC’s mission is to protect current and former federal employees, and applicants for 

federal employment, especially whistleblowers, from prohibited employment practices; promote 

and enforce compliance by government employees with legal restrictions on political activity, and 

facilitate disclosures by federal whistleblowers about government wrongdoing. OSC carries out 

this mission by: 

• investigating complaints of prohibited personnel practices, especially reprisal for 

whistleblowing, and pursuing remedies for violations; 

• providing advisory opinions on, and enforcing Hatch Act restrictions on political 

activity; 

• operating an independent and secure channel for disclosures of wrongdoing in federal 

agencies; 

• protecting reemployment and antidiscrimination rights of veterans under the USERRA; 

and 
FY 2007 Performance and Accountability Report 6

• promoting greater understanding of the rights and responsibilities of federal employees 

under the laws enforced by OSC. 

IV. Organizational Structure of OSC 

OSC maintains its headquarters office in Washington, D.C. Four field offices are located 

in Dallas, Oakland, Detroit, and Washington, D.C. 

Agency components during FY2007 include the Immediate Office of the Special Counsel 

(IOSC), five operating units/divisions and several supporting offices explained in detail below. 

Immediate Office of the Special Counsel. The Special Counsel and staff in IOSC are 

responsible for policymaking and overall management of OSC. They also manage the agency’s 

congressional liaison and public affairs activities, and its outreach program, which includes 

promotion of compliance by other federal agencies with the employee information requirement at 

5 U.S.C. § 2302(c). 

Complaints Examining Unit. This unit is the intake point for all complaints alleging 

prohibited personnel practices and other violations of civil service law, rule, or regulation within 

OSC’s jurisdiction.7 This unit is responsible for screening approximately 1,700 prohibited 

personnel practice cases per year. Attorneys and personnel management specialists conduct an 

initial review of complaints to determine if they are within OSC’s jurisdiction, and if so, whether 

further investigation is warranted. The unit refers all matters stating a potentially valid claim to 

the Investigation and Prosecution Division for further investigation.8 

Disclosure Unit. This unit is responsible for receiving and reviewing disclosures received 

from federal whistleblowers. It advises the Special Counsel on the appropriate disposition of the 

information disclosed (including possible referral to the head of the agency involved for an 

investigation and report to OSC; referral to an agency Inspector General; or closure). The unit 

also reviews agency reports of investigation, to determine whether they appear to be reasonable 

and in compliance with statutory requirements before the Special Counsel sends them to the 

President and appropriate congressional oversight committees. 

Investigation and Prosecution Division. The Investigation and Prosecution Division 

(IPD) is comprised of four field offices. The IPD conducts field investigations of matters referred 

after preliminary inquiry by the Complaints Examining Unit. Division attorneys conduct a legal 

analysis after investigations are completed to determine whether the evidence is sufficient to 

establish that a prohibited personnel practice (or other violation within OSC’s jurisdiction) has 

occurred. Investigators work with attorneys in evaluating whether a matter warrants corrective 

action, disciplinary action, or both. 

If meritorious cases cannot be resolved through negotiation with the agency involved, 

division attorneys represent the Special Counsel in litigation before the Merit Systems Protection 

Board. They also represent the Special Counsel when OSC intervenes, or otherwise participates, 

in other proceedings before the Board. Finally, division investigators and attorneys also 
FY 2007 Performance and Accountability Report 7

sometimes investigate alleged violations of the Hatch Act and the Uniformed Services 

Employment and Reemployment Rights Act, though most Hatch Act and USERRA work is 

handled by the Hatch Act Unit and the USERRA Unit, respectively. 

Hatch Act Unit. This unit issues advisory opinions to individuals seeking information 

about Hatch Act restrictions on political activity by federal, and certain state and local, 

government employees. The unit is also responsible for enforcing the act. It reviews complaints 

alleging a Hatch Act violation and, when warranted, investigates and prosecutes the matter (or 

refers the matter to the Investigation and Prosecution Division for further action). It will also 

oversee Hatch Act matters farmed out to the IPD. 

USERRA Unit. This unit handles USERRA cases that are referred to OSC for 

prosecution by the Department of Labor. In addition, this unit handles the new special project 

assigned by P.L. 108-454 that requires OSC to investigate the re-employment rights of military 

service members under USERRA, which involves new functions, increased caseload, and new 

personnel. 

SUPPORTING UNITS: 

Alternative Dispute Resolution Program. In selected cases referred by the Complaints 

Examining Unit for further investigation, the agency contacts the complainant and the agency 

involved, and invites them to participate in OSC’s voluntary Mediation Program. If mediation 

resolves the complaint, the parties execute a written and binding settlement agreement; if not, the 

complaint is referred for further investigation. 

The mediation program for Alternative Dispute Resolution has been reorganized. Rather 

than have a single ADR specialist under the leadership of an SES employee, the agency has 

expanded the program through cross-training multiple individuals from each of OSC’s operating 

units. As a result the agency now has a broad pool of trained mediators with different legal areas 

of expertise. 

Legal Counsel and Policy Division. This division provides general counsel and policy 

services to OSC, including legal advice and support on management and administrative matters; 

legal defense of OSC in litigation filed against the agency; policy planning and development; and 

management of the agency ethics program. 

Management and Budget Division. This division provides administrative and 

management support services to OSC, in furtherance of program, human capital, and budget 

decisions. This division also includes the Information Technology Branch, Human Resources 

Branch, Document Control Branch and Budget and Procurement branch. The purpose of this 

division is to put the administrative support functions under one authority. 

Training Office. A training office has been created to train all new employees, cross train 

existing employees, and develop specialized training in areas such as litigation skills. 
FY 2007 Performance and Accountability Report 8

Specifically, the Training Office will cross train attorneys and investigators to enable them to 

traverse organizational boundaries within the agency. They will develop sufficient expertise in 

several areas of the law, giving management the ability to detail employees to address any 

potential backlogs that could form in the various units. 

IV. Performance Goals and Results 

A high priority item in recent Performance and Accountability Reports has been the status 

of backlogs at OSC. The chronic backlogs of Prohibited Personnel Practice (PPP) cases, Hatch 

Act cases and Disclosure Unit cases were essentially eliminated two years ago through 

tremendous effort by the entire agency. The good news to report in this year’s request is that the 

agency, again through hard work and diligence, has been successful in avoiding a recurrence of 

any of the three types of backlog. The streamlined processes and logically reorganized 

organizational structure put into place with the agency reorganization during FY 2005 continue to 

contribute to the agency’s ability to defy resurgent backlogs. 

OSC’S SUCCESSES IN FY 2007

1) OSC recommends disciplinary action against the head of the General Services 

Administration. In June 2007, OSC concluded that the GSA Administrator had violated 

the Hatch Act in a meeting with her subordinates. In January 2007, about 35 GSA political 

appointees, including the Administrator, gathered in a GSA meeting room during work 

hours for a political briefing with a member of the White House staff. Following the 

briefing, the GSA Administrator was alleged to have asked, “How can we help our 

candidates?” A complaint was filed with OSC, prompting an investigation. OSC found 

that the Administrator’s conduct, including her behavior during the course of the 

investigation, was a violation of the Hatch Act. The Special Counsel recommended to the 

President that she “be disciplined to the fullest extent...” A final decision is pending. 

2) Commerce IG resigns after OSC substantiates two counts of whistleblower 

retaliation. In June 2007, OSC found that the Inspector General for the Department of 

Commerce had illegally retaliated against two individuals. The Deputy IG had lodged 

objections with the IG regarding his travel schedule, prompting him to demote and 

reassign the Deputy elsewhere within the agency. The IG claimed that he had other 

reasons for reassigning the Deputy, but an OSC investigation showed that the Deputy’s 

whistleblowing was the overriding factor. The IG also improperly reassigned his counsel. 

The Special Counsel referred this case to the President with the recommendation that 

appropriate action be taken against the IG. The Inspector General announced his 

retirement shortly after this referral, and corrective action for the whistleblowers is 

pending. 
FY 2007 Performance and Accountability Report 9

3) OSC issues warning letter to the head of NASA in Hatch Act case. In January 2007, 

OSC rebuked the Administrator of NASA, for comments that seemed to endorse the 

reelection of a Congressman. In March 2006, the Administrator appeared with, and 

introduced, Rep. Tom DeLay (R-TX) at an event. In his introductory comments, the 

Administrator spoke of Mr. DeLay’s friendship to NASA and said “we’ve got to keep him 

there.” A complaint was filed with OSC, who found that while the remarks were not a 

clear-cut violation of the Hatch Act, they were cause for concern. 

4) OSC finds new evidence in FAA case involving cover-ups of aircraft near-misses and 

whistleblower retaliation. In July 2007, citing new evidence of cover-ups and retaliation 

disclosed by Anne Whiteman, OSC’s 2005 Public Servant Award recipient, OSC has 

directed the U.S. Department of Transportation to conduct an investigation of alleged 

underreporting of air traffic control errors at Dallas-Fort Worth International Airport 

(D/FW) Ms. Whiteman had disclosed similar problems at D/FW in 2003, leading to an 

investigation by the USDOT Inspector General. OSC is also consulting with a new 

confidential whistleblower with further information about the problems within the FAA 

system. In addition to calling for the new investigation, OSC is seeking corrective action 

by the agency for the violations committed against Ms. Whiteman. 

5) OSC Special Task Force continues review of possible violations by administration 

officials. In April 2007, OSC announced that it would be reviewing the briefings by 

officials of the White House Office of Political Affairs to political appointees within 

executive branch agencies. OSC is also conducting a series of investigations regarding 

specific alleged violations of the Hatch Act and other statutes at every level within the 

government. 

6) OSC continues outreach aided by high-profile cases. In this decade, OSC’s intensified 

efforts at outreach and publicity have contributed to an enhanced understanding of its role 

by its neighbors within the federal community, and workers generally. This year, OSC’s 

visibility has taken another quantum leap forward with the broad attention paid towards 

recent high-profile cases. Media organizations that have spotlighted OSC in recent months 

include the Washington Post, the Los Angeles Times, CNN, and NBC Nightly News. It is 

believed that this visibility will enhance the awareness of federal employees of their rights 

and responsibilities, deter them from violating the law, and lead to a more secure merit 

system. 

7) The Special Counsel’s willingness to prosecute federal agencies for violations of the 

law again achieved strong results. Prior Special Counsels had never filed any USERRA 

enforcement actions with the U.S. Merit Systems Protection Board (since USERRA was 

passed in 1994). In FY 2005 and FY 2006, OSC set precedent by filing four USERRA 

cases, receiving full corrective action in all four cases, including one in which the U.S. 

Department of Labor told the claimant that his case had no merit. In FY 2007, OSC filed 

yet another USERRA enforcement action with the MSPB. The case is still pending. 

Several of these cases stem from the demonstration project created by the Veterans 

Benefits Improvement Act of 2004, under which OSC has responsibility to investigate and 

resolve certain federal sector USERRA cases. This willingness to prosecute USERRA 

violations also causes more corrective action settlements prior to litigation. OSC achieved 

a record 43 USERRA corrective actions in Demonstration Project cases during FY 2007. 
FY 2007 Performance and Accountability Report 10

8) OSC continues to enhance its resources for conducting mediations. Instead of having 

one full time mediator, seven people from different parts of the agency have received 

training in conducting mediations. OSC now has a cadre of professionals with varied skills 

and legal expertise in multiple areas from which to draw. 

9) OSC continues to operate under its totally re-designed Performance Goals. OSC’s 

performance goals are now measurable, finite, and directly aligned with the four statutory 

missions of the agency. They deal with timeliness, quality, and outreach (where 

applicable) for each enforcement mission. The Senate Appropriations Committee 

expressed their satisfaction with the changes and they appeared for the first time in the FY 

2008 Congressional Budget Justification. OSC will continue to work with OMB 

throughout FY 2008 to improve its performance goals, ensuring that they are challenging 

and include sufficiently ambitious targets necessary to drive a results-oriented performance 

culture. 

 

Although the elimination of backlogged cases has helped OSC achieve its strategic goals 

of protecting federal employees from PPPs, protecting the merit system, and guarding the public 

interest through its Disclosure Unit, there are other important ways in which the agency must 

gauge its success. OSC made progress on improving the timeliness to review PPP cases (94% 

processed in less than 240 days during FY 2007, a 5% improvement above the FY 2006 result). 

OSC’s percentage of whistleblower disclosures handled in less than 15 days improved to 61% in 

FY 2007 (up from 42% in FY 2006). Timely settlements and processing of cases are very 

important. OSC will review its timeliness goals for future years to ensure they are challenging.

 

V. OSC's Systems, Controls, and Legal Compliance 

Management control activities carried out by OSC include periodic reviews of agency 

administrative and program elements to assure that obligations and costs comply with applicable 

laws; funds, property and other assets are safeguarded; revenues and expenditures are properly 

recorded and accounted for; and programs are efficiently and effectively carried out in accordance 

with law and management policy. During FY 2007, reviews were completed on the following 

agency administrative operations: 

1. Information Security Program. OSC’s Chief Information Officer conducts an annual 

security review. The results of this review were summarized in the agency’s Federal 

Information Security Management Act (FISMA) Report, submitted to OMB in early 

October, 2007. The review found no material weaknesses in the agency’s information 

technology policies, procedures, or practices. Further, there were no security incidents 

affecting critical agency information systems. 

2. GAO Correspondence. In February of 2007, GAO produced a correspondence entitled 

“Office of Special Counsel Needs to Follow Structured Life Cycle Management 

Practices for its Case Tracking System”. The report recommended that OSC develop 

an SDLC approach for its case tracking system, OSC2000. OSC’s case tracking 
FY 2007 Performance and Accountability Report 11

system has never had any data reliability problems during its seven years of constant 

use by the agency. But in order to acknowledge that a recommendation had been 

made, OSC spent considerable man-hours developing the SDLC documentation for the 

system, which was completed in August of 2007. The report also recommended that 

OSC establish a standardized method of querying its database. OSC launched a project 

to create the standardized queries and completed the project in July of 2007. 

3. The Veterans Benefits Improvement Act of 2004, Pub. L. No. 108-454, § 204, 118 

Stat. 3606, requires DOL and OSC to carry out a three-year demonstration program 

under which certain federal sector claims under USERRA are to be referred to OSC for 

initial investigation and resolution. Near the end of the original term of the 

demonstration project, GAO issued a report in July 2007 entitled “Military Personnel: 

Improved Quality Controls Needed Over Servicemembers’ Employment Rights Claims 

at DOL”. The report analyzes how OSC and DOL carry out their responsibilities under 

the USERRA demonstration project. Rather than focus on results achieved on behalf 

of veterans, the report focused primarily on process details, and recommended many 

changes at DOL. 

4. Financial Audit. OSC is undergoing its fourth financial audit. The agency’s first audit 

was in FY 2004. The auditors reported no material weaknesses in FY 2004, FY 2005, 

or FY 2006. The FY 2007 audit addresses the financial statements and accounting 

processes, almost all of which were accomplished by the National Business Center 

(NBC) at the Department of Interior under an interagency outsourcing agreement. In 

the event that any material control weaknesses are identified during this year’s audit, 

they will be discussed in the next FMFIA/IG Act report. 

5. OSC Capitalization Policy. In November of FY 2005, OSC created a capitalization 

policy for assets with a purchase price over $50,000. This policy is in place and 

reviewed quarterly, to determine if OSC has additional assets to capitalize. 

6. HSPD-12. To comply with the security requirements of directive HSPD-12, OSC 

signed an agreement for HSPD-12 services with the Department of Interior for the 

issuance of PIV cards to OSC employees. OSC met the October 2006 deadline to have 

a process in place and at least one card issued. The Department of Interior has recently 

pulled out of the business of providing HSPD-12 services, so OSC will now use the 

General Services Administration to fulfill its obligations under this directive. 

In FY 2007, several OSC financial management activities including budget accounting, 

financial accounting, reporting accounting, and procurement systems software were provided by 

NBC. OSC personnel and payroll data entry transactions were processed by the Department of 

Agriculture’s (USDA’s) National Finance Center (NFC). Travel services were provided by the 

Bureau of Public Debt (BPD) during FY 2007. These operations were administered under 

cross-servicing agreements. For information on any significant management control issues related 

to services provided under these agreements, OSC relies on information received from NBC, 

BPD, and NFC, and any audits or other reviews issued by the Treasury and USDA OIGs, their 

Offices of the Chief Financial Officer (OCFO), and the General Accounting Office (GAO). 
FY 2007 Performance and Accountability Report 12

In May of 2007, there was a GAO Correspondence entitled “Managerial Cost Accounting 

Practices at the Department of Interior”, which pointed out perceived managerial accounting 

deficiencies in various divisions of the Department of Interior. However, GAO states that the 

deficiencies affect the way NBC sets pricing and makes managerial decisions. There is no effect 

on the accounting they do for OSC, other than the possibility that NBC’s pricing could be slightly 

lower or higher than it would be with a better activity based costing system, which could spread 

costs evenly among clients according to effort expended on the individual clients. 

Reports on NFC operations have identified internal control or other problems detailed in 

USDA OIG and/or OCFO reports required by law to be submitted to the President and Congress. 

These include OIG Report No. 11401-20-FM, “Fiscal Year 2004- Review of the National Finance 

Center General Controls”. The report identifies eleven technical control issues. However, OSC 

transactions processed by NFC during FY 2007, however, do not appear to have been affected by 

the problems reported. OSC will, however, follow up on findings when warranted. 

VI. Future Effects of Known Demands, Risks, Uncertainties, 

Events, Conditions, and Trends 

In the past several years, the agency has experienced an increase in caseload level. For 

example, in FY 2007, OSC’s caseload increased 6.0%. There are a number of factors which have 

contributed to this level of complaint filings with OSC: 

y In recent years, OSC has had a large number of high-profile whistleblower cases, leading to 

increased national press coverage of OSC. FY 2007 accelerated this trend. There is now a 

very heightened awareness of the Hatch Act among Federal employees. The number of Hatch 

Act complaints received in FY 2006 exceeded the number received previously in any year. 

Hatch Act complaints in FY 2008 are projected to be the highest number yet, due to the 

upcoming presidential election. 

y Congress passed a statute intended to improve results and decrease the processing time for 

USERRA complainants from members of our armed forces. Under the pilot program created 

by Congress, which commenced in February of 2005, OSC began processing half of the 

USERRA cases that would typically be processed by the Department of Labor, thereby 

increasing OSC’s USERRA caseload considerably. OSC is confident that this pilot program is 

improving results for members of our military who are being denied rights under USERRA. 

In FY 2007, OSC achieved a record 43 corrective actions in USERRA cases, which 

represented 35% of all USERRA cases processed by OSC. Now that the original duration of 

the demonstration project is over, it is possible that Congress will ask OSC to take on the 

responsibility of investigating all Federal USERRA cases. 

y OSC continues to investigate whistleblower retaliation complaints from Transportation 

Security Agency (TSA) security screeners under OSC’s Memorandum of Understanding 

(MOU) with TSA. This MOU remains viable despite the Merit System Protection Board’s 
FY 2007 Performance and Accountability Report 13

decision that the Board does not have jurisdiction to adjudicate these matters. 

y During FY 2007, OSC continued to certify more agencies through its outreach program. As 

agencies implement the certification process, agency employees who might previously have 

been unaware of their rights and remedies through OSC are becoming informed. 

y In addition to OSC’s certification program, OSC continues to provide outreach programs to 

agencies requesting them, or as part of OSC settlements in particular matters. Outreaches 

explaining the twelve Prohibited Personnel Practices can precipitate new cases being filed with 

OSC, because employees learn more about what a PPP is, and sometimes realize that one may 

have been committed against them. But in the long run, continued outreaches should diminish 

actual violations by raising awareness. 

The Special Counsel continues to stress the importance of further development of OSC’s 

agency-wide cross training program. This is an important initiative, which provided for 

unprecedented efficiency at OSC by developing many of the agency’s employees to the point 

where they have sufficient expertise to operate in more than one of OSC’s highly specialized units, 

and can therefore cross organizational boundaries to address the case backlogs in their initial 

stage. 

VII. Comments on Final FY 2007 Financial Statements 

• OSC’s Asset Capitalization Policy has been in place for three years. It pertains to assets 

with an initial purchase price over $50,000. The agency’s phone system was the first item 

to be placed on the list of capitalized assets. The videoconferencing equipment and certain 

leasehold improvements were subsequently added to the list. 

• An ongoing trend is that salaries, benefits, rent and utility payments tend to take 

precedence over major productivity-enhancing Information Technology projects. Salaries, 

benefits, rent and utility payments are over 90% of the agency’s expenditures. Any 

increases such as pay raises or rent increases have an impact on the agency’s ability to fund 

the IT projects. OSC continues to find ways to implement IT enhancements at low costs. 

However, in the near future, investments in certain systems must be made, for projects 

such as the upgrade of OSC’s case tracking system to a web-based platform. 

• The Accrued Leave Liability on the Balance Sheet Notes at the end of FY 2007 was 

$763,892, an 8.4% increase over the already high accrued leave liability amount at the end 

of FY 2006. This liability stems from the diligent effort given by the OSC employees to 

accomplish the missions of the agency in a timely manner without the resurgence of 

backlogs, and to handle the increased responsibilities of the mostly unfunded USERRA 

demonstration project. 

• Limitations of the Financial Statements: The principal financial statements have been 

prepared to report the financial position and results of operations of OSC, pursuant to the 

requirements of 31 U.S.C. 3515 (b). 
FY 2007 Performance and Accountability Report 14

The statements have been prepared from the books and records of the Review Commission 

in accordance with generally accepted accounting principles (GAAP) for Federal entities 

and formats prescribed by the Office of Management and Budget (OMB). The statements 

are in addition to the financial reports used to monitor and control budgetary resources 

which are prepared from the same books and records. These statements should be read 

with the realization that they are for a component of the United States Government, a 

sovereign entity. 
FY 2007 Performance and Accountability Report 15

Endnotes 

 

1

 Reorganization Plan Number 2 of 1978. See 5 U.S.C.A. App.1, § 204. The Civil Service Reform Act of 1978 

(Public Law No. 95-454, 92 Stat. 1111) enlarged OSC’s functions and powers. 2 Public Law No. 101-12 (1989). Provisions setting forth OSC authorities and responsibilities were codified at 

5 U.S.C. § 1211, et seq. 3

 Public Law No. 103-94 (1993), codified in scattered sections of 5 U.S.C. and 12 U.S.C. 

4

 Public Law No. 103-353 (1994), codified at 38 U.S.C. § 4301, et seq. The Veterans’ Employment Opportunities 

Act of 1998 (Public Law No. 103-424) also expanded OSC’s role in protecting veterans. The act made it a prohibited 

personnel practice to knowingly take, recommend, or approve (or fail to take, recommend, or approve) any personnel 

action, if taking (or failing to take) such action would violate a veterans’ preference requirement. See 5 U.S.C. § 

2302(b)(11). (The former § 2302(b)(11) was re-designated as § 2302(b)(12).). 

5

 Public Law No. 103-424 (1994), codified in various sections of title 5 of the U.S. Code. The provision making 

federal agencies responsible, in consultation with OSC, for informing their employees of rights and remedies under 

the Whistleblower Protection Act appears at 5 U.S.C. § 2302(c). 

6 Public Law 107-71 (2001). 

7

 Unless noted otherwise, all references after this to prohibited personnel practice complaints include complaints 

alleging other violations of civil service law, rule, or regulation listed at 5 U.S.C. § 1216, except for alleged violations 

of the Hatch Act. 

8 When the Complaints Examining Unit makes a preliminary determination to close a complaint without further 

investigation, it must by law provide complainants with a written statement of reasons, to which they may respond. 

On the basis of the response, if any, the unit decides whether to close the matter, or refer it to the Investigation and 

Prosecution Division. 
FY 2007 Performance Accountability Report 16

Part 2: Performance Section
FY 2007 Performance Accountability Report 17

Comments for Goal #1:

1. Indicator A: PPP Cases.

This timeliness indicator measures the combined effectiveness of both OSC’s Complaints Examining 

Unit (CEU) and OSC’s Investigation and Prosecution Division (IPD).

OSC receives complaints of Prohibited Personnel Practices into the CEU. If, after initial screening, 

investigation, and legal analysis, a complaint meets the requirements for merit, it is internally referred 

to the IPD for further investigation. If the IPD investigates and determines the case does indeed have 

merit, the IPD either seeks relief for the claimant through mediation, settlement, or prosecution.

The reason the target is less than 100% is because in some cases the settlement process can take a 

considerable amount of time. In cases involving litigation, the time frame for events is no longer driven 

by the speed of work of OSC attorneys and investigators. To strive for 100% would carry the implicit 

assumption that OSC would not litigate any cases. 

a

 The FY 2007 target for PPPs processed in under 240 days was lowered slightly from 95% to 92%. 

The reason was that OSC had several high priorities in FY 2007 that necessitated the reallocation of 

resources from both the units that handle PPPs (the Complaints Examining Unit and the 

OSC Statutory Missions:

PPP ENFORCEMENT MISSION

Goal 1: TO PROTECT THE MERIT SYSTEM THROUGH TIMELY 

CASE PROCESSING 

PPP Enforcement Mission PROHIBITED PERSONNEL 

PRACTICES CASES 

PERFORMANCE INDICATOR Indicator A: Percentage of cases 

processed in less than 240 days.

FY 2006 TARGET 85% 

FY 2006 RESULTS 89% 

FY 2007 TARGET 92%a

FY 2007 RESULTS 94% 

FY 2008 TARGET 92% 

FY 2008 RESULTS 

FY 2009 TARGET 92% 

FY 2009 RESULTS 
FY 2007 Performance Accountability Report 18

Investigation and Prosecution Division). Several IPD attorneys were on detail to the Hatch Act Unit, 

because of the high number of Hatch Act cases. The agency did not want to risk development of a Hatch 

Act backlog. Two CEU attorneys and one IPD attorney were on detail to the USERRA Unit, to assist 

with handling the high number of USERRA cases. In addition, an IPD investigator took a position in 

the USERRA unit on a permanent basis. In a small agency, reallocation of resources to assist with high 

priority initiatives has an effect. The effect in this case was that 92% became an aggressive target for the 

agency to reach in terms of processing PPPs in less than 240 days.

OSC exceeded the FY 2007 target by 2%, improving 5% over the previous fi scal year. 
FY 2007 Performance Accountability Report 19

Comments for Goal #2

1. Performance Indicator A

A meritorious case is one in which the Offi ce of Special Counsel is satisfi ed that claimant is entitled to 

relief. In certain meritorious cases, OSC may endeavor to use mediation to secure relief for the claimant. If mediation was not appropriate or did not succeed, OSC may exercise its prosecutorial authority 

and fi le for corrective or disciplinary action before the MSPB. As prosecutor, OSC seeks to obtain full 

corrective action on behalf of claimants either by settlements with the involved federal employer or via 

litigation.

Typically, OSC will prosecute cases it believes are meritorious but where the involved agency is unwilling to resolve them voluntarily. OSC is confi dent of its ability to prosecute successfully cases warranting corrective action.

OSC maintained the same high standard of 100% of meritorious PPP cases being enforced.

Goal 2: TO PROMOTE JUSTICE THROUGH THE QUALITY OF 

INVESTIGATIONS AND ENFORCEMENTS 

PPP Enforcement Mission Prohibited Personnel 

Practices Cases 

PERFORMANCE INDICATOR 

Indicator A: % favorable 

outcomes in cases determined by 

OSC to be meritorious = (# 

successful mediations + # of 

settlements achieved + # of 

successful litigations) / (# 

meritorious cases) 

FY 2006 TARGET 99% 

FY 2006 RESULTS 100% 

FY 2007 TARGET 99% 

FY 2007 RESULTS 100% 

FY 2008 TARGET 100% 

FY 2008 RESULTS 

FY 2009 TARGET 100% 

FY 2009 RESULTS 
FY 2007 Performance Accountability Report 20

Comments for Goal #3

OSC has statutory authority to administer the 2302(c) Program, which recognizes the federal sector’s 

need for awareness of Prohibited Personnel Practices and training in avoidance of committing them. 

However, OSC cannot force any agency to apply for certifi cation. There are no statutory penalties for 

not being certifi ed. This annual numeric target is not overly aggressive because 1) OSC cannot force 

compliance, and 2) the number of Federal agencies that may seek certifi cation is limited by the number 

of agencies in existence. OSC already has 32 certifi ed agencies, including most of the major ones.

Other outreach activities:

Additionally, members of the Investigation and Prosecution Division and the Complaints Examining 

Unit regularly accept invitations to provide outreach services designed to educate Federal personnel on 

these issues so that agencies comply with the law. Employees from OSC were able to educate employees 

of many agencies during a presentation at the Federal Dispute Resolution Conference (FDR).

• OSC maintains a telephonic hot line for answering PPP-related questions from members of the 

Federal workforce.

• OSC’s web site provides a wealth of information regarding PPPs and is a valuable and 

constantly improving resource for educating the Federal workforce on this subject. Every year 

the web site statistics for user sessions increase, with an average increase in activity of 15% over 

the previous year.

Goal 3: TO PROMOTE COMPLIANCE WITH THE STATUTES THAT 

OSC ENFORCES THROUGH ENHANCED OUTREACH TO FEDERAL 

AGENCIES 

PPP Enforcement Mission PROHIBITED PERSONNEL 

PRACTICES CASES 

PERFORMANCE INDICATOR 

Indicator A: # of new Federal 

agencies certified in the 2302 (c) 

Program by OSC. 

FY 2006 TARGET 5 

FY 2006 RESULTS 6 

FY 2007 TARGET 5 

FY 2007 RESULTS 3 

FY 2008 TARGET 5 

FY 2008 RESULTS 

FY 2009 TARGET 5 

FY 2009 RESULTS 
FY 2007 Performance Accountability Report 21

• The Go Learn project is a new initiative that will bring OSC expertise to thousands of Federal 

workers. OSC does not have responsibility for this project, other than providing expert content.

The results for the number of certifi cations fell below the previously set target of fi ve agencies to be 

certifi ed during FY 2007.
FY 2007 Performance Accountability Report 22

OSC Statutory Missions:

HATCH ACT MISSION

Comments for Goal #1:

1. Performance Indicator A: written advisory opinions

These are the requests for an advisory opinion that come in to OSC’s Hatch Act Unit that are very 

complex and require signifi cant analysis before answering.

2. Performance Indicator B: oral or e-mail advisory opinions

If an oral or e-mail advisory opinion were to take longer than fi ve days, generally it would be treated as 

a formal written advisory request and be captured by Indicator A.

The Hatch Act Unit exceeded two of its three timeliness targets for FY 2007, and met its third timeliness 

target.

Goal 1: TO DEFEND THE MERIT SYSTEM BY ENFORCING THE 

HATCH ACT – THROUGH TIMELY CASE PROCESSING 

HATCH ACT 

MISSION 

HATCH ACT 

WRITTEN 

ADVISORY 

OPINIONS See 

comment 1. 

HATCH ACT 

ORAL & 

EMAIL 

ADVISORY 

OPINIONS 

See comment 2 

HATCH ACT 

COMPLAINTS 

PERFORMANCE 

INDICATORS 

Indicator A:

Percentage of 

formal written 

advisory 

opinions issued 

in less than 120 

days. 

Indicator B: 

Percentage of 

oral and e-mail 

advisory 

opinions issued 

in less than five 

days

Indicator C: 

Percentage of 

matters resolved 

in less than 365 

days.

FY 2006 TARGET 75% 99% 60% 

FY 2006 RESULTS 93% 100% 84% 

FY 2007 TARGET 80% 99% 70% 

FY 2007 RESULTS 91% 99% 92% 

FY 2008 TARGET 80% 99% 70% 

FY 2008 RESULTS 

FY 2009 TARGET 80% 99% 75% 

FY 2009 RESULTS 
FY 2007 Performance Accountability Report 23

Comments for Goal #2

1. Meritorious cases

A meritorious Hatch Act case is a case in which OSC fi nds a violation of the Hatch Act. A favorable 

outcome in a Hatch Act case is either (1) successful litigation of the case; (2) successful settlement of the 

case; or (3) successful corrective action (individual corrected his violation after receiving notice from 

OSC, for example, by withdrawing his candidacy or resigning from his employment).

The results achieved by the Hatch Act Unit for Goal 2 exceeded the target by 7% for FY 2007.

Goal 2: TO PROMOTE JUSTICE THROUGH THE QUALITY OF 

INVESTIGATIONS AND ENFORCEMENTS 

HATCH ACT 

MISSION 

HATCH ACT CASES 

See comment 1. 

PERFORMANCE 

INDICATOR 

Indicator A: % favorable outcomes in meritorious 

cases

FY 2006 TARGET 90% 

FY 2006 RESULTS 97% 

FY 2007 TARGET 90% 

FY 2007 RESULTS 97% 

FY 2008 TARGET 90% 

FY 2008 RESULTS 

FY 2009 TARGET 90% 

FY 2009 RESULTS 
FY 2007 Performance Accountability Report 24

Comments for Goal #3

1. Results:

Indicator A: The outreach results for FY 2007 exceed the set target by 10%.

Indicator B: An average of one complex advisory opinion has been posted each month since these goals 

were established in February 2006.

2. Outreach DVD

In addition to the performance of outreach visits and the web site enhancement described above, OSC

has produced both a Federal Hatch Act DVD and a State & Local Hatch Act DVD that explains the

basics of the Hatch Act. OSC is now able to mail the appropriate DVD to certain requestors who require

a basic tutorial overview of the Hatch Act.

Goal 3: TO PROMOTE COMPLIANCE WITH THE STATUTES THAT 

OSC ENFORCES THROUGH ENHANCED OUTREACH TO FEDERAL 

AGENCIES 

HATCH ACT 

MISSION 

HATCH ACT 

OUTREACH VISITS 

HATCH ACT SECTION 

OF OSC WEBSITE 

PERFORMANCE 

INDICATORS 

Indicator A: (# of HA 

trainings and 

outreaches given) / (# 

of invitations to 

provide HA training 

or outreach, where the 

inviter sponsors OSC) 

Indicator B: Number of new 

advisory complex opinions 

added every month to the 

website. 

FY 2006 TARGET 90% One 

FY 2006 RESULTS 96% One 

FY 2007 TARGET 90% One 

FY 2007 RESULTS 100% One 

FY 2008 TARGET 90% One 

FY 2008 RESULTS 

FY 2009 TARGET 90% One 

FY 2009 RESULTS 
FY 2007 Performance Accountability Report 25

OSC Statutory Missions:

USERRA MISSION

Explanatory Comments about the Four Types of USERRA Cases

OSC receives four types of USERRA cases––RE, DP-OD, DP-MX, and DP-TSA––each of which are 

explained in detail below. Given the different nature of such cases, different performance indicators 

apply.

1. RE Cases

Under USERRA, certain federal sector claims are investigated by U.S. Department of Labor, Veterans’ 

Employment and Training Service (VETS). Pursuant to 38 U.S.C. § 4324, in the event that VETS is 

unable to resolve such a claim, a claimant has a right to have his or her claim referred to OSC for a 

determination on whether OSC will represent the claimant before the U.S. Merit Systems Protection 

Board (MSPB). Such cases are identifi ed by OSC as “RE cases.”

RE cases have already been investigated by VETS and reviewed by a DOL Offi ce of Regional Solicitor 

(RSOL). The USERRA Unit receives the VETS investigative fi le and a legal memorandum from RSOL 

indicating whether RSOL recommends that OSC represent the claimant. USERRA Unit reviews the 

information and make a “de novo” determination.

Where the USERRA Unit disagrees with an RSOL determination that OSC should represent the 

claimant, the unit sends the RSOL a report setting forth the factual and legal basis of the unit’s 

preliminary determination not to represent the claim and invites the RSOL to respond. The unit 

considers any response received from the RSOL in making a fi nal representation determination. The 

RSOL is typically given two weeks to respond to the report.

It is to be noted that while RE cases have already been investigated by VETS, OSC has found that: 

further investigation is often warranted, e.g., key witnesses need interviewing; important documents 

need to be obtained; too much time lapsed between alleged initial violations and their referral to OSC. 

In such cases, the USERRA Unit will always contact the agency and relevant witnesses to obtain the 

information necessary to allow it to make a well-reasoned determination regarding the prosecutorial 

merit of a given claim.

The need and extent of any supplemental investigation affects the processing time of RE cases and is 

refl ected in the performance indicator.

2. DP-OD cases

In late 2004, Congress expanded OSC’s role in enforcing USERRA and protecting the employment 

rights of federal employees and applicants. Pursuant to a demonstration project established by section 

204 of the Veterans Benefi ts Improvement Act of 2004 (VBIA), P.L. 108-454, OSC was given the 
FY 2007 Performance Accountability Report 26

exclusive authority to investigate federal sector USERRA claims brought by persons whose social 

security number ends in an odd-numbered digit. Under the demonstration project, OSC also investigates 

all federal sector USERRA claims containing a related prohibited personnel practice allegation over 

which OSC has jurisdiction regardless of the person’s social security number (so-called “mixed claims”). 

VETS’ investigative authority was limited to federal sector USERRA claims brought by persons whose 

social security number ends in an odd-numbered digit and who do not allege a prohibited personnel 

practice. Pursuant to section 204(d)(1) of VBIA, OSC shall administer the demonstration project and 

DOL shall cooperate with OSC in carrying out the demonstration project. The demonstration project 

began on February 8, 2005, and ended on September 30, 2007. It has since been extended to November 

16th, 2007, and may be extended further.

Given the new, additional investigative responsibilities Congress assigned to OSC with the passing of 

the demonstration project and the Special Counsel’s desire to revitalize OSC’s enforcement of USERRA 

during his term, Special Counsel Bloch established the USERRA Unit as part of the January 6, 2005, 

directive reorganizing the agency. The USERRA Unit is the in-take, investigative, and prosecutorial unit 

for all matters pertaining to USERRA and veteran-related employment issues. The Unit is responsible 

for investigating USERRA claims to determine whether prosecution is warranted.

DP-OD cases are federal sector USERRA claims fi led by persons having an odd-numbered social 

security number. DP-OD cases typically come from two sources: 1) from VETS, where a claimant fi les 

a USERRA Form 1010 (i.e., a USERRA complaint form) with VETS and 2) directly from the claimant, 

where the claimant fi les with OSC the OMB approved form OSC-14 “Complaint of Possible violation of 

USERRA.”

The USERRA Unit conducts an investigation of DP-OD cases and determines whether OSC will 

represent the claimant in an USERRA action before the MSPB. The performance indicator refl ects the 

time reasonably expected to investigate such cases.

3. DP-MX cases

As stated above, OSC is responsible for investigating all federal sector USERRA claims where the 

claimant, regardless of his or her social security number, also alleges a prohibited personnel practice 

over which OSC has jurisdiction.

The USERRA Unit conducts an investigation of DP-MX cases and determines whether OSC will 

represent the claimant in a USERRA or prohibited personnel practice action before the MSPB.

The processing time of DP-MX cases is affected by 1) additional complexity of such cases and 2) 

the USERRA Unit’s adoption of OSC’s practice in prohibited personnel practice cases of granting a 

claimant 13 days to respond to OSC’s preliminary determination regarding prohibited personnel practice 

allegations. The performance indicator incorporates those factors.
FY 2007 Performance Accountability Report 27

4. DP-TSA cases

On June 9, 2005, the MSPB held in Spain v. Department of Homeland Security (MSPB Docket # PH0353-04-0361-I-1) that USERRA does not apply to Transportation Security Administration (TSA) 

Security Screeners or TSA Supervisory Security Screeners and, therefore, the MSPB does not recognize 

jurisdiction over such cases. Consequently, OSC is unable to prosecute USERRA actions involving TSA 

Security Screeners or TSA Supervisory Security Screeners.

Notwithstanding the Spain decision, TSA voluntarily permits OSC to investigate USERRA claims and 

reports it fi ndings and recommendations for corrective action to TSA management offi cials (akin to the 

manner in which OSC is permitted to investigate and report on allegations of whistleblower reprisal).

The performance indicator for these types of cases refl ects the MSPB’s decision in the Spain case.
FY 2007 Performance Accountability Report 28

Goal 1: TO ENFORCE THE UNIFORMED SERVICES EMPLOYMENT AND 

REEMPLOYMENT RIGHTS ACT THROUGH TIMELY CASE PROCESSING 

USERRA 

MISSION 

USERRA A: 

RE Cases 

USERRA B: 

DP-OD Cases 

USERRA C: 

DP-MX Cases 

USERRA D: 

DP-TSA Cases 

See Comment 

5. 

PERFORMANCE 

INDICAT

ORS 

Indicator A:

Average 

number of 

days in which 

the case is 

settled, closed 

or a decision to 

litigate is 

made. 

Indicator A: 

Average 

number of 

days in which 

the case is 

settled, closed 

or a decision to 

litigate is 

made.

Indicator A: 

Average 

number of 

days in which 

the case is 

settled, closed 

or a decision 

to litigate is 

made.

Indicator A: 

Average 

number of days 

in which a “no 

merit” determination is made 

or a request for 

voluntary corrective action is 

sent to TSA.

FY 2006 

TARGET 90% 80% 80% 80% 

FY 2006 

RESULTS 50% 62% 74% 33% 

FY 2007 

TARGET 75 days 160 days 160 days 160 days 

FY 2007 

RESULTS 33 days 107 days 171 days 90 days 

FY 2008 

TARGET 75 days 140 days 160 days 140 days 

FY 2008 

RESULTS 

FY 2009 

TARGET 75 days NA NA NA 

FY 2009 

RESULTS 

Indicator A: In FY 2006, there were ten RE cases referred from DOL. Five of them were resolved 

in less than 75 days and fi ve were resolved in greater than 75 days. The number of RE cases that 

are transferred varies widely, sometimes as high as 30 and sometimes as low as 4. In addition, the 

complexity of the cases varies widely. On these RE cases, to treat the servicemember fairly, OSC must 

re-investigate the entire case that is transferred from DOL VETS. Using the FY 2006 data, and due to 

the complexity of these cases, we determined that 75 days would be the target average. OSC achieved 

an average of 33 days in FY 2007. But since FY 2008 results could easily be over 100 days due to the 

complexity of the cases, we are keeping the 75 days as the target for now. 
FY 2007 Performance Accountability Report 29

Indicators B, C, and D: FY 2006 results served as a baseline for setting targets for these indicators. The 

average processing times in FY 2006 were 115 days, 123 days, and 161 days, respectively, for OD, MX, 

and TSA cases. Given that the unit was a startup and the unit’s staffi ng was in fl ux, OSC set the FY 2007 

targets at 160 days for each of these indicators. In FY 2007, OSC achieved two out of three of these 

targets, in the OD and TSA categories. Given these encouraging yet mixed results, we are considering 

lowering the target to 140 days for OD and TSA cases. OSC will work with OMB in the coming months 

to OSC to solidify its USERRA targets and ensure they are suffi ciently ambitious.

Comments for Goal #1:

1. For RE cases, resolution was made in an average of 33 days, much improved over the FY 2006 

result. 

2. For the DP-OD cases, average resolution was made in 107 days, well below the 160 day target.

3. For DP-MX cases, the average number of days to resolve the cases was 171, so the USERRA Unit 

failed to meet the FY 2007 target. DP-MX cases contain both USERRA and Prohibited Personnel 

Practice (PPP) allegations (whereas DP-OD cases contain only USERRA allegations). Therefore, 

because DP-MX cases contain more allegations and are more complex, they generally take longer to 

investigate and resolve than DP-OD cases. 

4. For DP-TSA cases, resolution was made in an average of 90 days, well below the goal of 160 days.
FY 2007 Performance Accountability Report 30

Comments for Goal #2

1. Performance Indicator A

Where the Offi ce of Special Counsel is satisfi ed that claimant is entitled to relief, then it may exercise 

its prosecutorial authority and represent the claimant before the MSPB and, in certain circumstances, the 

U.S. Court of Appeals for the Federal Circuit. See 38 U.S.C. §§ 4324(a)(2)(A) and (d)(2). As prosecutor, 

OSC seeks to obtain full corrective action on behalf of claimants either by settlements with the involved 

federal employer or via litigation.

Typically, OSC will prosecute cases it believes are meritorious but where the involved agency 

is unwilling to resolve them voluntarily. OSC is confi dent of its ability to prosecute successfully 

cases warranting corrective action. “Meritorious cases” under this performance indicator are to be 

distinguished from the “test cases” found under Performance Indicator B.

Goal 2: TO PROMOTE JUSTICE THROUGH THE QUALITY OF 

INVESTIGATIONS AND ENFORCEMENTS 

USERRA 

MISSION 

USERRA CASES 

PERFORMANCE 

INDICATORS 

Indicator A: % 

favorable outcomes 

in cases determined 

by OSC to be 

meritorious = (# 

successful 

meditations + # of 

settlements achieved 

+ # of successful 

litigations) / (# 

meritorious cases)

Indicator B: # of “test cases” filed

FY 2006 TARGET 90% Inappropriate to set a specific target 

FY 2006 RESULTS 100% 0 

FY 2007 TARGET 90% Inappropriate to set a specific target 

FY 2007 RESULTS 100% 1 

FY 2008 TARGET 95% Inappropriate to set a specific target 

FY 2008 RESULTS 

FY 2009 TARGET 99% Inappropriate to set a specific target 

FY 2009 RESULTS 
FY 2007 Performance Accountability Report 31

2. Performance Indicator B

It is foreseeable that OSC will desire to fi le cases where the law is not clear (e.g., novel legal issues 

requiring “test cases” to defi ne the bounds of the law) but will establish legal precedent benefi ting all 

service members, if the litigation is successful. The outcomes of these types of cases do not depend on 

OSC’s skill in weighing of the evidence, applying of law, and trying the case. Instead, the cases involve 

questions of law.

It is diffi cult to defi ne a performance goal that accurately refl ects “success” or “failure” of OSC’s 

identifi cation of cases that are fertile for expanding the law. The mere fact of fi ling test litigation with 

an eye toward expanding the law, however, seems appropriate. Performance Indicator B captures this 

concept. OSC will track how often it fi les this type of case. However, a target can not be identifi ed 

because OSC cannot determine how often appropriate “test cases” will come into the agency from 

claimants.

OSC fi led one USERRA test case during FY 2007, which is currently pending at the MSPB. 
FY 2007 Performance Accountability Report 32

Comments for Goal #3

OSC recognizes the federal sector’s need for USERRA training although it has no statutory obligation to 

provide it. Thus, the USERRA Unit regularly accepts invitations to provide outreach services designed 

to educate federal personnel on USERRA issues so that agencies comply with the law, including 

presentations conducted at national events such as t he Federal Dispute Resolution conference. In 

indiviual USERRA cases where OSC believes an agency would benefi t from such training, OSC 

requests that the agency sponsor OSC-conducted USERRA training at agency expense. Additionally, 

the USERRA unit maintains telephonic and e-mail “hot lines” for answering USERRA-related questions 

from the public and private sectors.

Goal 3: TO PROMOTE COMPLIANCE WITH THE STATUTES THAT OSC 

ENFORCES THROUGH ENHANCED OUTREACH TO FEDERAL 

AGENCIES 

USERRA 

MISSION 

USERRA CASES 

PERFORMANCE 

INDICATORS 

Indicator A: (# of 

USERRA trainings 

and outreaches 

given) / (# of 

invitations to provide 

USERRA training or 

outreach visits 

{where inviting 

agency sponsors 

OSC})

Indicator B: (# of USERRA 

trainings and outreaches given) / 

(# of invitations to provide 

USERRA training or outreach 

visits {where OSC pays expenses}) 

FY 2006 TARGET 90% 50% 

FY 2006 RESULTS NA 100% 

FY 2007 TARGET 90% 50% 

FY 2007 RESULTS 100% 100% 

FY 2008 TARGET 90% 50% 

FY 2008 RESULTS 

FY 2009 TARGET 90% 50% 

FY 2009 RESULTS 
FY 2007 Performance Accountability Report 33

OSC Statutory Missions:

WHISTLEBLOWER DISCLOSURE MISSION

Comments for Goal #1:

1. Performance Indicator A: Timely Disclosure Processing

Pursuant to § 1213(b), when the Special Counsel receives any disclosure of information by a federal 

employee, former federal employee or applicant for federal employment which the [employee] 

reasonably believes evidences: a violation of law, rule or regulation, gross mismanagement, a gross 

waste of funds, an abuse of authority, or a substantial and specifi c danger to public health or safety, the 

Special Counsel must review the information within 15 days and determine whether there is a substantial 

likelihood that the information discloses one or more of the above categories of wrongdoing.

OSC handles these whistleblower disclosures under 5 U.S.C. § 1213 in one of three ways. If the Special 

Counsel makes a positive determination, he must transmit the information to the appropriate agency 

head, and require the agency head to conduct an investigation and submit a written report on the fi ndings 

of the investigation. These referrals under § 1213 represent a small percentage of the total number of 

disclosures resolved by OSC in any fi scal year.

If the Special Counsel does not make a positive determination, the matter is closed. These closures make 

up the vast majority of the total number of cases resolved by OSC in any fi scal year.

If the Special Counsel is unable to make the substantial likelihood determination on the basis of the

Goal 1: TO RECEIVE AND RESOLVE WHISTLEBLOWER DISCLOSURES 

WITH TIMELY PROCESSING 

WHISTLEBLOWER 

DISCLOSURE 

MISSION 

DISCLOSURES 

See comment 1. 

PERFORMANCE 

INDICATORS 

Indicator A: Percentage of disclosures resolved within 

the statutory 15 day time frame 

FY 2006 TARGET 50% 

FY 2006 RESULTS 42% 

FY 2007 TARGET 50% 

FY 2007 RESULTS 61% 

FY 2008 TARGET 50% 

FY 2008 RESULTS 

FY 2009 TARGET 50% 

FY 2009 RESULTS 
FY 2007 Performance Accountability Report 34

information supplied by the whistleblower, the matter may be informally referred to the Inspector 

General (IG) for the agency involved, with a request that the IG assist OSC in making a substantial 

likelihood determination.

OSC’s Disclosure Unit exceeded its timeliness goal by 11% for FY 2007.
FY 2007 Performance Accountability Report 35

Comments for Goal #2

1. Indicator A: Whistleblower referrals:

The U.S. Offi ce of Special Counsel does not have investigative or enforcement authority under 5U.S.C. 

§ 1213. As such, the Indicator for Goal #2 refl ects a quality measure based on the number of cases 

referred under §1213, regardless of the outcome of the referral. The percentage of cases referred out of 

the total number of cases received in a fi scal year is a relatively low number historically, and as such, the 

FY 2006 and FY 2007 targets are low. Because OSC’s Disclosure Unit processes nearly 500 disclosures 

annually, this percentage can be seen as an indicator of the average relative height of the “substantial 

likelihood” bar in a given year.

The Indicator for Goal #2 refl ects only one way of measuring quality as defi ned in Goal #2, to “promote 

justice and protect the merit system.” Because the statutory mandate of §1213 contemplates that 

OSC make a determination whether there is a substantial likelihood that the information discloses 

wrongdoing, a negative determination under the statute, resulting in a closure, is as quality driven 

as a positive determination resulting in a referral. OSC’s analysis of a whistleblower disclosure may 

result in a determination not to burden an agency with an inappropriate referral, thus promoting justice 

and protecting the merit system. Notwithstanding this diffi culty in identifying a measure of quality, the 

individual whistleblower who initiates the disclosure, thus accessing the statutory protections, is more 

inclined to measure quality by whether or not his or her disclosure is referred. As such, the Indicator for 

Goal #2 for now refl ects this single measurement.

The target for this goal was exceeded for FY 2007.

Goal 2: TO PROMOTE JUSTICE AND PROTECT THE MERIT SYSTEM 

THROUGH THE QUALITY OF DETERMINATIONS AND REFERRALS 

WHISTLEBLOWER 

DISCLOSURE 

MISSION 

DISCLOSURES 

See comment 1. 

PERFORMANCE 

INDICATORS 

Indicator A: % Percentage of disclosures referred to 

agency head, pursuant to 5 U.S.C. § 1213, or under the 

informal IG referral process. 

FY 2006 TARGET 7% 

FY 2006 RESULTS 8% 

FY 2007 TARGET 7% 

FY 2007 RESULTS 10% 

FY 2008 TARGET 7% 

FY 2008 RESULTS 

FY 2009 TARGET 7% 

FY 2009 RESULTS 
FY 2007 Performance Accountability Report 36

Comments for Goal #3

1. Disclosure outreach:

OSC’s Disclosure Unit does not have a statutorily defi ned mandate to perform compliance outreach, and 

as such does not regularly provide training or outreach to other government entities, with the exception 

of informational presentations to foreign delegations.

OSC continues to provide free Whistleblower Disclosure Act posters to requesting agencies, if the 

quantity requested is less than ten. If the quantity requested exceeds ten, the interested agency can 

obtain extra copies from the Government Printing Offi ce.

Goal 3: TO PROMOTE COMPLIANCE WITH THE STATUTES 

THAT OSC ENFORCES THROUGH ENHANCED OUTREACH TO 

FEDERAL AGENCIES

WHISTLEBLOWER 

DISCLOSURE 

MISSION 

NA 

PERFORMANCE 

INDICATORS 

NA 

FY 2006 TARGET NA 

FY 2006 RESULTS NA 

FY 2007 TARGET NA 

FY 2007 RESULTS NA 

FY 2008 TARGET NA 

FY 2008 RESULTS NA 

FY 2009 TARGET NA 

FY 2009 RESULTS 
FY 2007 Performance and Accountability Report 37

 

Part 3: Financial Section