a

GAO

United States General Accounting Office

Report to Congressional Requesters

March 2004 U.S. OFFICE OF 

SPECIAL COUNSEL

Strategy for Reducing 

Persistent Backlog of 

Cases Should Be 

Provided to Congress 

GAO-04-36
www.gao.gov/cgi-bin/getrpt?GAO-04-36.

To view the full product, including the scope 

and methodology, click on the link above. 

For more information, contact George H. 

Stalcup at (202) 512-9490 or 

stalcupg@gao.gov. 

Highlights of GAO-04-36, a report to 

congressional requesters 

March 2004 

U.S. OFFICE OF SPECIAL COUNSEL

Strategy for Reducing Persistent Backlog 

of Cases Should Be Provided to 

Congress 

The U.S. Office of Special Counsel (OSC) met the 240-day statutory time 

limit for processing prohibited personnel practice cases about 77 percent of 

the time from fiscal year 1997 through 2003 and met the 15-day limit for 

processing whistleblower disclosure cases about 26 percent of the time. 

OSC took an average of more than six months to process a whistleblower 

disclosure case. As shown in the pie chart below, over the seven-year 

period, 34 percent of the prohibited personnel practices cases were 

backlogged as were 96 percent of the whistleblower disclosure cases. 

In an attempt to address workload issues, in 2001 OSC streamlined 

processes and hired additional staff. OSC data indicate that the merger of 

the agency’s investigators and attorneys into a single unit increased the 

average number of cases processed per individual from June 2001 to June 

2002. A case priority processing system for prohibited personnel practices 

and whistleblower disclosure cases allowed OSC to process more important 

cases more expeditiously, according to OSC. 

OSC officials told us that the primary reason the agency has not been more 

successful in meeting the statutory time limits for its cases, particularly 

those involving whistleblower disclosure, is lack of an adequate number of 

staff. Our analysis of OSC data indicates, however, that even with increased 

staffing, the agency was not able to process a significantly larger number of 

cases within the time limits. OSC noted that staff turnover and the need to 

train new staff lowered its productivity. Officials also noted the difficulty in 

meeting the 15-day limit for processing whistleblower disclosure cases, but 

have not proposed an alternative time limit. In external documents to 

Congress, OSC has discussed its case processing and backlog difficulties, 

but has not developed a comprehensive strategy for dealing with them. 

Presenting such a strategy would provide Congress with information that it 

needs for oversight and resource allocation. 

Percent of Pending and Backlogged Cases, Fiscal Years 1997 through 2003 

a

Pending cases are those that have not exceeded the statutory processing time limit. 

b

Backlogged cases are those that have exceeded the statutory processing time limit. 

The U.S. Office of Special Counsel 

has not been consistently 

processing cases within statutory 

time limits, creating backlogs. 

Because the backlogs are of 

concern to the Congress, this 

report provides information on 

how many cases were processed 

within statutory time limits, the 

actions taken by OSC to address 

case processing delays and 

backlog, and the agency’s 

perspective on the adequacy of its 

resources and our analysis of this 

perspective. 

GAO recommends that the Special 

Counsel provide Congress with a 

detailed strategy designed to allow 

more consistent processing of 

cases within statutory time limits 

and a reduction in the backlog of 

cases, for which these limits have 

already passed. 
Page i GAO-04-36 U.S. Office of Special Counsel

Contents

Letter 1

Results In Brief 2

Background 4

Caseload Has Consisted Mainly of Prohibited Personnel Practices 

Cases, and a Large Increase in Whistleblower Disclosure Cases 

Occurred After September 11, 2001 9

While OSC Was Far More Successful in Meeting Time Limits For 

Processing Prohibited Personnel Practices Cases than 

Whistleblower Disclosure Cases, Backlogs of Both Types of Cases 

Persisted 11

Agency Data Indicate Attempts to Handle Caseload More Efficiently 

Have Had Salutary Effects 15

Agency Says Existing Resources Are Inadequate, But It Is Not Clear 

How Additional Resources Would Help Alleviate Backlogs 18

Conclusion 24

Recommendation for Executive Action 24

Agency Comments 25

Appendixes

Appendix I: OSC’s Data Tracking System and Privacy Protection 

Policies 26

Data Tracking System 26

Privacy Protection Policies 28

Appendix II: Scope and Methodology 30

Appendix III: Organization of the Office of Special Counsel 32

Appendix IV: Comments from the Office of Special Counsel 34

Appendix V: GAO Contact and Staff Acknowledgments 36

GAO Contact 36

Acknowledgments 36

Tables Table 1: Statutes That Govern OSC Authority 8

Table 2: Processing Times for Prohibited Personnel Practices 

Cases, Fiscal Years 1997-2003 12

Table 3: Processing Times for Whistleblower Disclosure Cases, 

Fiscal Years 1997-2003 12

Table 4: Prohibited Personnel Practices Case Inventories, Fiscal 

Years 1997-2003 14
Contents

Page ii GAO-04-36 U.S. Office of Special Counsel

Table 5: Whistleblower Disclosure Case Inventories, Fiscal Years 

1997-2003 15

Figures Figure 1: Prohibited Personnel Practices 5

Figure 2: Number of New Cases by Case Type, Fiscal Years 1997 - 

2003 10

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Page 1 GAO-04-36 U.S. Office of Special Counsel

United States General Accounting Office

Washington, D.C. 20548

A

March 8, 2004 Letr

The Honorable Tom Davis

Chairman, Committee on Government Reform

House of Representatives

The Honorable Dan Burton

House of Representatives

The U.S. Office of Special Counsel’s (OSC) primary mission is to protect 

federal employees from prohibited personnel practices. Individuals who 

believe that a prohibited personnel practice, such as nepotism or 

obstructing the right to compete for employment, has been committed may 

file complaints with OSC. These individuals may also disclose to OSC 

alleged wrongdoings by other federal employees (termed “whistleblower 

disclosures”), such as violations of laws and “gross waste” of funds.1

 In 

addition, the agency oversees laws regulating the employment rights of 

veterans and the political activities of individuals employed by the federal 

and District of Columbia governments as well as certain state and local 

government employees employed in connection with programs financed by 

federal funds. 

Congress established time limits for OSC to take action on certain kinds of 

allegations that the agency receives. The law requires OSC to determine 

within 240 days of receiving an allegation of a prohibited personnel 

practice whether there are reasonable grounds to believe that it occurred 

and 15 days to determine whether there is a substantial likelihood that the 

allegations in a whistleblower disclosure constitute wrongdoing. Cases 

dealing with political activities of federal and other covered employees and 

reemployment rights of veterans do not have statutory case processing 

limits. 

This report responds to your request for information on (1) OSC’s caseload 

by type and changes to the caseload from fiscal years 1997 through 2003, 

(2) the extent to which cases were processed within time limits set by law 

during these years, (3) actions taken by OSC to address caseload issues, 

and (4) the agency’s perspective on the adequacy of its resources and our 

analysis of that perspective. In addition, as requested, we are providing 

1

Reprisal for a whistleblower disclosure, however, is a prohibited personnel practice.
Page 2 GAO-04-36 U.S. Office of Special Counsel

information on OSC’s data tracking system and its privacy protection 

policies in appendix I.

In developing information about the type and number of complaints and 

the case processing times, we reviewed data from OSC’s data tracking 

system (OSC 2000), OSC’s Annual Reports to Congress, and other 

performance and budget reports provided by agency officials for fiscal 

years 1997 through 2002. We assessed the reliability of case tracking data 

in OSC 2000 by reviewing electronic queries of required data elements for 

obvious errors, reviewing existing information about the data and the 

system that produced them, and interviewing agency officials 

knowledgeable about the data. We discovered discrepancies in the 

caseload data and brought these discrepancies to the attention of agency 

officials, including the chief information officer, who resolved the 

discrepancies. Based on our assessment of OSC 2000 and the caseload 

data it generated, we determined that the data for fiscal years 1997 through 

2003 were sufficiently reliable for the purposes of our report. Throughout 

this report, we refer to “processed cases” to denote that OSC has made the 

determination required within the statutory time limits for prohibited 

personnel practices cases or whistleblower disclosure cases. We refer to 

“backlogged cases” as those for which OSC has not made the determination 

within the statutory time frame. We conducted our review in Washington, 

D.C., from April 2002 to February 2004 in accordance with generally 

accepted government auditing standards. Detailed information on our 

scope and methodology appears in appendix II.

Results In Brief Three-quarters of OSC’s total new cases from fiscal year 1997 through 2003 

consisted of prohibited personnel practices cases. Whistleblower 

disclosure cases represented approximately 18 percent of total new cases. 

The remaining approximately 6 percent were cases involving political 

activities of covered employees and reemployment rights of veterans. The 

number of new prohibited personnel practices cases ranged from a low of 

1,301 in fiscal year 2001 to a high of 1,969 the previous year—a fluctuation 

of 51 percent. Whistleblower disclosure cases steadily increased from 

fiscal year 1997 through 2000 (by about 37 percent, from 311 cases to 427) 

then dropped somewhat (about 11 percent) in fiscal year 2001, only to 

increase dramatically in fiscal years 2002 ( about 46 percent) and decrease 

slightly in 2003 ( about 4 percent). OSC officials stated that the large 

increase was prompted, in part, by the terrorist events of September 11, 

2001, after which the agency received more cases involving allegations of 
Page 3 GAO-04-36 U.S. Office of Special Counsel

substantial and specific dangers to public health and safety and national 

security concerns.

OSC met the 240-day case processing statutory limit for about 77 percent of 

prohibited personnel practices cases from fiscal year 1997 through 2003 

and met the 15-day statutory limit for whistleblower disclosure cases about 

26 percent of the time. The inability to process in a timely manner new 

prohibited personnel practices cases received each year meant that over 

the 7-year period, the percentage of backlogged cases was between 29 

percent and 44 percent. The percentage of whistleblower cases in backlog 

was always extremely high—95 to 97 percent. 

Although OSC cannot control the number of new cases filed, actions the 

agency has taken to help it better manage its caseload have yielded some 

benefits, according to agency data. For example, in June 2001, the agency’s 

divisions of investigators and attorneys merged into three parallel 

investigation and prosecution divisions. Shortly thereafter, OSC adopted 

many streamlined, pilot-tested investigative procedures, particularly for 

less serious cases. According to OSC officials, during the 3-1/2 years prior 

to the reorganization, the staffs of the separate divisions processed an 

average of 5.3 cases annually per person. During the first year after the 

merger of the divisions, productivity increased to 7 cases processed per 

person. In November 2001, OSC adopted a priority case processing system 

that classifies all its prohibited personnel practices cases into one of three 

categories and further prioritizes cases within each category. According to 

OSC, from January 1, 2002, through September 30, 2002, priority cases were 

processed faster than non-priority cases in all categories. Additionally, 

agency data show that resolution of a small number of prohibited 

personnel practices cases by alternative dispute resolution before the 

agency made the “reasonable grounds determination” has reduced the 

backlog slightly. OSC officials also indicated that the agency has been 

using a priority system for whistleblower disclosure cases since 2002. 

Under this priority system, disclosures involving substantial dangers to 

public health and safety—the most serious type—are referred to the 

agency head for investigation faster than those cases that do not involve 

public health and safety. 

OSC claims that its existing resources are inadequate to consistently 

process its cases within statutory time limits and reduce the backlog of 

cases. While resources may be a factor, our analysis of the agency's recent 

performance after hiring more staff raises questions about whether gaining 

authority to hire more staff would produce desired results. For example, 
Page 4 GAO-04-36 U.S. Office of Special Counsel

the agency was able to process about the same number of total cases in 

fiscal year 2003 as it had in fiscal year 1999 (2133 vs. 2109), despite having 

16 percent more staff. Moreover, for both whistleblower disclosure and 

prohibited personnel practices cases, if OSC had been able to process as 

many cases during each of the fiscal years from 1997 through 2003 as it did 

in its best year for each type of case, the backlog for both would have been 

significantly lower by the end of fiscal 2003. OSC officials cited several 

mitigating factors that they say limited the agency’s ability to process cases 

faster and reduce the backlog. First, OSC data showed a high turnover in 

staff between 2000 and 2003 that deprived the agency of institutional 

knowledge at a time when agency officials were trying to train new staff. 

Second, officials pointed out that new staff need training and time to 

develop experience before they can become full contributors to case 

processing efforts. Officials also noted the difficulty of meeting the 15-day 

limit for making the “substantial likelihood” determination required in 

whistleblower disclosure cases. However, OSC has not proposed an 

alternative time limit that officials believe is more realistic. Moreover, 

despite having a priority system in place that agency officials told us allows 

cases dealing with health and safety to be processed faster than non health 

and safety cases, the agency still faces mounting backlogs in whistleblower 

disclosure cases. 

We believe that these factors highlight the need for OSC to develop a 

comprehensive strategy that (1) defines human capital and other 

limitations facing the agency, and (2) outlines the agency’s plans for 

overcoming these limitations to allow processing more cases within 

statutory limits and reducing the backlog of cases. OSC officials agreed 

with our recommendation to provide Congress with such a strategy and 

indicated that the agency will work to implement the recommendation as 

expeditiously as possible. They also provided technical and clarifying 

comments, which we incorporated in the report, as appropriate.

Background OSC’s primary role is to safeguard the merit system in federal employment 

by protecting federal employees, former federal employees, and applicants 

for federal employment from prohibited personnel practices as shown:
Page 5 GAO-04-36 U.S. Office of Special Counsel

Figure 1: Prohibited Personnel Practices

Federal employees, with authority to take, direct others to take, recommmend or 

approve any personnel action, may not:

● Discriminate for or against an employee or applicant based on race, color, 

 religion, sex, national origin, age, handicap, marital status, or political affiliation;

● Solicit or consider employment recommendations based on factors other than 

 personal knowledge or records of job related abilities or characteristics;

● Coerce the political activity of any person;

● Deceive or willfully obstruct any person from competing for employment;

● Influence any person to withdraw from competition for any position so as to 

 improve or injure the employment prospects of any other person;

● Give an unauthorized preference or advantage to improve or injure the prospects 

 of any person for employment;

● Engage in nepotism (that is, hire, promote, or advocate the hiring or promotion of 

 relatives);

● Take or fail to take, or threaten to take or fail to take a personnel action because 

 of whistleblowing;

● Take or fail to take, or threaten to take or fail to take a personnel action because 

 of the exercise of a protected activity, including a lawful appeal, complaint, or 

 grievance;

● Discriminate based on personal conduct which does not adversely affect the 

 performance of the employee or other employees;

● Knowingly take or fail to take a personnel action in violation of veterans' 

 preference laws; and

● Take or fail to take a personnel action, which would violate any law, rule or 

 regulation implementing or directly concerning merit system principles.

Source: 5 USC 2302(b). 
Page 6 GAO-04-36 U.S. Office of Special Counsel

OSC receives and independently investigates allegations of prohibited 

personnel practices. Before completing its investigation and making its 

determination about whether there are reasonable grounds for believing a 

violation has occurred, OSC may refer the case to its alternative dispute 

resolution (ADR) program. If OSC cannot process a case within the 240-

day limit, the agency must get permission from the complainant to keep the 

case open. If OSC finds reasonable grounds for believing that a violation 

occurred, OSC can seek corrective action, disciplinary action, or both 

through negotiation with the agency involved. If an agreement cannot be 

reached, OSC can file a petition (for corrective action) or a complaint 

(seeking disciplinary action) with the Merit Systems Protection Board 

(MSPB).2

 OSC functions as a case prosecutor before the MSPB. 

OSC also receives whistleblower disclosure claims. As described by law, 

these consist of violation of law, rule, or regulation; gross mismanagement, 

gross waste of funds, abuse of authority, or a substantial and specific 

danger to public health or safety. Unless disclosure of a whistleblower’s 

identity is necessary because of imminent danger to public health or safety 

or imminent violation of criminal law, OSC maintains the whistleblower’s 

anonymity. (See app. I for more information on OSC’s privacy policies.) 

Unlike its actions with respect to prohibited personnel practices, OSC does 

not independently investigate whistleblower disclosure cases. Instead, 

OSC is required to determine within 15 days whether there is a substantial 

likelihood the allegations constitute wrongdoing. If so, OSC sends the 

information to the head of the agency where the individual making the 

allegations works. The agency head must conduct an investigation and 

submit a written report to OSC. OSC is responsible for reviewing the 

agency’s report to determine whether the findings appear to be reasonable 

and whether the report contains all of the information required by statute. 

2

MSPB is an independent, quasi-judicial agency in the executive branch that serves as the 

guardian of federal merit systems. 
Page 7 GAO-04-36 U.S. Office of Special Counsel

Unless the agency has found evidence of a criminal violation, OSC provides 

the whistleblower with a copy of the agency report for comment.3

 

OSC also investigates and prosecutes complaints about possible violations 

of the Hatch Act, which regulates the political activities of federal 

employees, District of Columbia employees, and certain state and local 

government employees employed in connection with programs financed by 

federal funds. OSC may seek corrective or disciplinary action in Hatch Act 

cases before the MSPB. OSC also issues advisory opinions to persons 

seeking advice about how certain kinds of political activity are treated 

under the Hatch Act. In addition, OSC investigates and prosecutes 

complaints under the Uniformed Services Employment and Reemployment 

Rights Act (USERRA) of 1994, which covers the employment rights of 

individuals serving in the uniformed military services. 

During each fiscal year, OSC receives new cases that are added to open 

cases from previous years, which equal the “total caseload inventory”. 

During the year, as OSC processes cases, the total caseload inventory 

decreases. At the end of the fiscal year, the agency has an “ending 

inventory”, which consists of pending cases (those that have not reached 

the applicable statutory limit for case processing) plus backlogged cases 

(those for which the applicable statutory limit for case processing has 

passed without the applicable determination being made). The ending 

inventory for one fiscal year becomes the beginning inventory for the 

following year.

3

If there is no evidence found of a criminal violation, OSC transmits the agency’s report with 

its own comments and recommendations to the President and the congressional 

committees with oversight responsibility for the agency involved. OSC is required to place 

the report in a public file. The whistleblower’s comments are also sent to the President and 

congressional oversight committees. Cases where there is evidence of a criminal violation 

are referred by the agency to the Attorney General. In such cases, the agency is also 

required to notify the Office of Personnel Management and the Office of Management and 

Budget of the referral. The report accompanying such cases does not become part of the 

public record. 
Page 8 GAO-04-36 U.S. Office of Special Counsel

OSC’s authority comes from five federal statutes: the Civil Service Reform 

Act of 1978,4

 the Whistleblower Protection Act of 1989,5 the Hatch Act,6

Office of Special Counsel Reauthorization Act of 1994,7 and the Uniformed 

Services Employment and Reemployment Rights Act of 1994, 8 as described 

in table 1. 

Table 1: Statutes That Govern OSC Authority

4

P.L. 95-454.

5

P.L. 101-12.

6

The provisions commonly referred to as the Hatch Act, as applied to federal and District of 

Columbia employees, are found under subchapter III of chapter 73 of title 5. The Hatch Act 

provisions relating to certain state and local employees are found under chapter 15 of title 5. 

OSC also provides advisory opinions to persons seeking advice about political activity. In 

fiscal year 2002, OSC received 213 Hatch Act violation allegations and following initial 

investigation, fully investigated eight allegations and filed four enforcement actions with 

MSPB. For that same year, OSC issued over 3,200 Hatch Act advisory opinions. 

7

P.L. 103-424. 

8

P.L. 103-353. 

Statute Applicable Provisions

Civil Service Reform Act of 1978 OSC was created under the Reauthorization Plan Number 2 of 1978. The Reform Act 

established OSC as a part of MSPB and introduced statutory protection for whistleblowers. 

Whistleblower Protection Act of 1989 The act strengthens protection for whistleblowers and, thus, encourages whistleblowing. It 

also separated OSC from MSPB, establishing OSC as an independent federal investigative 

and prosecuting agency. 

Office of Special Counsel 

Reauthorization Act of 1994 

The act gives OSC 240 days from the time it receives a complaint involving a prohibited 

personnel practice to determine whether there are reasonable grounds for believing that such 

a practice has been committed. If OSC is unable to process cases within this time, the agency 

is required to receive the complainant’s consent to keep the case open. The act also makes 

federal agencies explicitly responsible for informing their employees of available rights and 

remedies under the Whistleblower Protection Act and related laws, and directed that OSC play 

a consultant role in the process.

Hatch Act The act limits the political activities of federal employees, employees of the District of Columbia 

government and certain employees of state and local governments who work in connection 

with programs, such as public health, housing, urban renewal, and area redevelopment 

programs, financed in whole or in part by federal loans or grants. The Hatch Act Reform 

Amendments of 1993 (P.L. No. 103-94) allows most employees of the federal government and 

District of Columbia government to take a more active part in political management or in 

political campaigns, but their activities are still restricted. 
Page 9 GAO-04-36 U.S. Office of Special Counsel

Source: OSC.

OSC maintains its headquarters in Washington, D.C., and has field offices in 

Dallas, Texas, and Oakland, California. A Special Counsel appointed by the 

President and confirmed by the Senate for a five-year term heads the 

agency. OSC is organized into five operating divisions and two 

administrative support branches. Appendix III discusses OSC’s 

organizational structure for its operating divisions and explains how those 

divisions process cases. 

Caseload Has 

Consisted Mainly of 

Prohibited Personnel 

Practices Cases, and a 

Large Increase in 

Whistleblower 

Disclosure Cases 

Occurred After 

September 11, 2001

Seventy-five percent of OSC’s new cases from fiscal year 1997 through 2003 

consisted of prohibited personnel practices cases. Whistleblower 

disclosure cases represented approximately 18 percent of total new cases. 

The remaining approximately 6 percent were Hatch Act and USERRA 

cases. 

As shown in figure 2, the number of new prohibited personnel practices 

cases ranged from a low of 1,301 in fiscal year 2001 to a high of 1,969 in 

fiscal year 2000—a fluctuation of 51 percent. In fiscal year 2001, the 

number of new cases decreased sharply from the previous year. Excluding 

fiscal year 2001, however, the number of new prohibited personnel 

practices cases ranged from a low of 1,558 in fiscal year 2002 to a high of 

1,969 in fiscal year 2000 – a fluctuation of 26 percent. Whistleblower 

disclosure cases steadily increased from fiscal year 1997 through 2000 (by 

about 37 percent, from 311 to 427) then dropped somewhat (about 11 

percent) in fiscal year 2001, only to increase dramatically in fiscal year 2002 

(about 46 percent) and decrease slightly in fiscal year 2003 (about 4 

percent). 

Uniformed Services Employment and 

Reemployment Rights Act of 1994

The act prohibits discrimination against persons because of their service in the Armed Forces 

Reserve, the National Guard, or other uniformed services. The act also protects the 

reemployment rights and benefits of persons who were absent due to military service or 

training. The act authorizes OSC to initiate an action on behalf of a federal employee before 

the MSPB to enforce the act’s provisions. OSC may appeal an MSPB decision on behalf of the 

employee before the U. S. Court of Appeals for the Federal Circuit. 

(Continued From Previous Page)

Statute Applicable Provisions
Page 10 GAO-04-36 U.S. Office of Special Counsel

Figure 2: Number of New Cases by Case Type, Fiscal Years 1997-2003

OSC officials could not tell us with any certainty the reasons for the year-toyear fluctuations in prohibited personnel practices cases. They said 

increases may have resulted from outreach efforts by OSC to educate 

federal employees and others about their rights and the agency’s roles. As 

for the steep decline in prohibited personnel practices cases in fiscal year 

2001, officials said it may have resulted from increased awareness by 

federal managers about OSC’s role and responsibilities, which may have led 

managers to consult more with personnel specialists to avoid actions that 

could have lead to a prohibited personnel practice. 

OSC officials expressed more certainty about the reasons for the 

fluctuation in whistleblower disclosure cases. Officials said the steady 

increase in such cases from fiscal year 1997 through 2000 may have been 

due to media coverage of several cases that brought attention to the agency 

and its role in handling these cases. OSC officials stated that the big jump 

0

200

400

600

800

1,000

1,200

1,400

1,600

1,800

2,000

Number of cases 

1997 1998 1999 2000 2001 2002 2003

Fiscal year

Prohibited Personnel Practices cases

Hatch Act cases

Whistleblower Protection Act cases

Source: OSC.

Uniformed Services Employment and Reemployment Rights Act cases

1,852

75

311

0

1,730

83

330

5

1,729

71

374

7

1,969

427

8

1,301

185

380

17

1,558

213

555

18

1,791

197

535

7

98
Page 11 GAO-04-36 U.S. Office of Special Counsel

in whistleblower disclosure cases in fiscal year 2002 was prompted, in part, 

by the terrorist events of September 11, 2001, after which the agency 

received more cases involving allegations of substantial and specific 

dangers to public health and safety and national security.

While OSC Was Far 

More Successful in 

Meeting Time Limits 

For Processing 

Prohibited Personnel 

Practices Cases than 

Whistleblower 

Disclosure Cases, 

Backlogs of Both Types 

of Cases Persisted 

OSC met the 240-day case processing statutory limit for about 77 percent of 

prohibited personnel practices cases from fiscal years 1997 through 2003 

and met the 15-day statutory limit for whistleblower disclosure cases about 

26 percent of the time. For prohibited personnel practices cases, the 

inability to process all new cases received each year in a timely manner 

meant that the annual number of backlogged cases was never below 29 

percent and was as high as 44 percent.9

 The percentage of whistleblower 

cases in backlog was always extremely high—95 to 97 percent. 

OSC’s Record in Meeting 

Statutory Time Limits for 

Processing Prohibited 

Personnel Practices and 

Whistleblower Disclosure 

Cases Differed Greatly

From fiscal year 1997 through 2003, OSC processed about 77 percent of 

prohibited personnel practices cases within the 240-day statutory limit. As 

shown in table 2, the number of cases processed within the limit decreased 

steadily from fiscal year 1998 through 2001 before increasing substantially 

in fiscal years 2002 and 2003. The total number of cases processed 

declined from fiscal year 1997 through 2000, and increased slightly each 

ensuing year. Nevertheless, in fiscal years 2002 and 2003, OSC’s 

improvement in both areas was still not as good as it had been in its best 

years—fiscal years 1998 and 1997, respectively. OSC did dramatically 

reduce the average processing time of a case in fiscal year 2002 (to 187 

days) and fiscal year 2003 (to 135 days)—the best of the seven years. 

9

OSC may continue to investigate beyond the 240-day limit with the complainant’s 

permission.
Page 12 GAO-04-36 U.S. Office of Special Counsel

Table 2: Processing Times for Prohibited Personnel Practices Cases, Fiscal Years 

1997-2003 

Source: OSC. 

a

Numbers and percentages may not add due to rounding.

OSC’s efforts to process whistleblower disclosures cases were not as 

timely. From fiscal year 1997 through 2003, OSC met the 15-day statutory 

time limit for processing whistleblower disclosure cases 26 percent of the 

time. OSC’s average time to process a whistleblower disclosure case was 

more than six months for each of the seven years we examined. 

Table 3: Processing Times for Whistleblower Disclosure Cases, Fiscal Years 1997-

2003

Source: OSC.

Fiscal year

Processed 

within 240 

days

Processed 

in over 240 

days

Total 

processed

Average 

days to 

process

Percent 

processed 

within 240 

days

1997 1,499 604 2,103 194 71

1998 1,577 362 1,939 162 81

1999 1,395 300 1,695 167 82

2000 1,361 253 1,614 166 84

2001 945 680 1,625 242 58

2002 1,284 420 1,704 187 75

2003 1,471 261 1,732 135 85

Averagea 1,362 411 1773 179 77

Fiscal year

Processed 

within 15 

days

Processed 

in over 15 

days

Total 

processed

Average 

days to 

process

Percent 

processed 

within 15 

days

1997 73 209 282 193 26

1998 53 268 321 272 17

1999 71 343 414 253 17

2000 122 267 389 226 31

2001 97 243 340 267 29

2002 94 192 286 230 33

2003 111 290 401 264 28

Averagea 89 259 348 244 26
Page 13 GAO-04-36 U.S. Office of Special Counsel

Note: Processing a case is defined as when OSC (a) determines that the case has merit and refers it 

to the agency head, or (b) determines it lacks jurisdiction over the employee or the agency; the 

disclosure does not meet the substantial likelihood criterion that the alleged wrongdoing occurred; the 

disclosure is minor in nature; or the information is second hand or unsupported. 

a

Numbers and percentages may not add due to rounding.

Of the 2,433 whistleblower disclosure cases that OSC processed during 

fiscal years 1997 through 2003, OSC found a “substantial likelihood” of 

wrongdoing for 86, or approximately 4 percent, and referred these cases to 

the head of the agency involved for investigation. In the remaining 96 

percent of cases which were not referred to the agency head, OSC took no 

further action for reasons such as (1) lack of jurisdiction,10 (2) lack of 

sufficient information to make a substantial likelihood determination, 

(3) the complainant’s agency inspector general had already investigated the 

disclosure, or (4) the disclosure was minor, withdrawn, or duplicative. In 

addition, in cases where OSC concludes there is not a substantial 

likelihood of wrongdoing, with the consent of the whistleblower, OSC may 

transmit the information to the head of the agency where the complainant 

works. 

Congress has not established statutory limits for processing Hatch Act 

enforcement or USERRA cases. In fiscal year 2003, average processing 

time was 469 days for Hatch Act enforcement cases and 193 days for 

USERRA cases. OSC has established a standard of 30 days for processing 

Hatch Act advisory opinions. In fiscal year 2003, average time spent 

processing opinions was 106 days. 

OSC Has Backlog in 

Prohibited Personnel 

Practices and 

Whistleblower Disclosure 

Cases

As shown in table 4, the percentage of prohibited personnel practices cases 

in backlog fluctuated between 29 and 44 percent during the seven-year 

period. In fiscal year 1999, the number of cases processed declined by 

nearly 13 percent from the previous year. This decline, coupled with a 

nearly identical increase (nearly 14 percent) in cases received in fiscal year 

2000, resulted in the large backlog of cases by the end of that year. The 

number of cases received in fiscal year 2001 dropped substantially from the 

previous year. While the number of cases processed in fiscal year 2001 was 

slightly higher than the previous year, the number of cases in backlog by 

the end of fiscal year 2001 increased from the previous year. The lower 

10 In cases where OSC cannot act because the disclosure is from an anonymous source, but 

believes an allegation may warrant investigation, it may refer the allegation to the Inspector 

General’s office for the agency involved.
Page 14 GAO-04-36 U.S. Office of Special Counsel

beginning inventory in fiscal year 2002, combined with a modest increase in 

new cases and processed cases, resulted in an ending inventory that was 

about 33 percent less than the ending inventory in fiscal year 1997. 

However, an increase in the number of new cases in fiscal year 2003 and a 

smaller increase in cases processed that year, led to an increase in ending 

inventory, but a decrease in the part of that inventory consisting of 

backlogged cases. 

Table 4: Prohibited Personnel Practices Case Inventories, Fiscal Years 1997-2003

Source: OSC.

a

Pending cases are those cases in the ending inventory that have not exceeded 240 days.

b

Backlogged cases are those cases in the ending inventory for which the 240-day processing limit has 

passed. 

c

Numbers and percentages may not add due to rounding.

Table 5 shows that over the seven-year period, whistleblower disclosure 

cases in backlog averaged 96 percent. Total caseload increased by about 20 

percent from fiscal year 1997 through 2001, then jumped an additional 34 

percent in fiscal year 2002 and about 30 percent in fiscal year 2003. This 

resulted in an ending inventory in fiscal year 2003 that was about 24 

percent higher than the previous year and about 188 percent higher than in 

fiscal year 1997, as well as an increase in backlogged cases that was about 

23 percent higher than in fiscal year 2002 and 192 percent higher than in 

fiscal year 1997.

Fiscal year

Beginning 

inventory

Cases 

received

Total 

caseload

Processed 

cases

Ending 

inventory

Pending 

casesa

Backlogged 

casesb

Percent of 

cases in 

backlog

1997 1,135 1,852 2,987 2,103 884 629 255 29

1998 884 1,730 2,614 1,939 675 435 240 36

1999 675 1,729 2,404 1,695 709 504 205 29

2000 709 1,969 2,678 1,614 1,064 756 308 29

2001 1,064 1,301 2,365 1,625 740 414 326 44

2002 740 1,558 2,298 1,704 594 362 232 39

2003 594 1,791 2,385 1,732 653 449 204 31

Averagec 829 1,704 2,533 1,773 760 507 253 34
Page 15 GAO-04-36 U.S. Office of Special Counsel

Table 5: Whistleblower Disclosure Case Inventories, Fiscal Years 1997-2003 

Source: OSC.

a

Pending cases are those cases in the ending inventory that have not exceeded 15 days.

b

Backlogged cases are those in the ending inventory for which the 15-day processing limit has passed. 

c

Numbers and percentages may not add due to rounding.

Agency Data Indicate 

Attempts to Handle 

Caseload More 

Efficiently Have Had 

Salutary Effects 

Although OSC cannot control the number of new cases filed, actions the 

agency has taken to handle its caseload more efficiently have yielded some 

benefits, according to agency data. These data show that the merger of the 

agency’s investigators and attorneys into three parallel investigative and 

prosecutive units and the adoption of streamlined investigative procedures 

increased productivity, while the adoption of a priority system for 

processing prohibited personnel practices and whistleblower disclosure 

cases allowed more important cases to be handled more expeditiously. 

Agency data also show that referral of a small number of prohibited 

personnel practices cases for ADR prior to determining a “reasonable 

grounds” has reduced the backlog.

Merger of Investigative, 

Legal Divisions and 

Adoption of Streamlined 

Procedures Increased 

Productivity

In June 2001, OSC merged its investigators and attorneys, who had been in 

two separate divisions, into three parallel divisions in an attempt to (1) 

foster a closer and more effective coordination of strategy between 

attorneys and investigators, (2) produce a more efficient case-handling 

procedure geared to helping the agency process cases within existing 

statutory time limits, and (3) target resources so that the most important 

cases could receive more in-depth and prompt attention.

Fiscal Year

Beginning 

inventory

Cases 

received

Total 

caseload

Processed 

cases

Ending 

inventory

Pending 

casesa

Backlogged 

casesb

Percent of 

cases in 

backlog

1997 211 311 522 282 240 11 229 95

1998 240 330 570 321 249 8 241 97

1999 249 374 623 414 209 9 200 96

2000 209 427 636 389 247 11 236 96

2001 247 380 627 340 287 11 276 96

2002 287 555 842 286 556 14 542 97

2003 556 535 1,091 401 690 21 669 97

Averagec 286 416 702 348 354 12 342 96
Page 16 GAO-04-36 U.S. Office of Special Counsel

Shortly after the reorganization, OSC also adopted many of the streamlined 

investigative procedures that it had pilot tested. These included 

conducting more interviews by telephone for cases involving the least 

serious personnel actions and using a more flexible written format for 

documenting the findings of the investigation. Standard procedures 

require that the findings of an investigation be recorded in a detailed 

written report. However, on a case-by-case basis, a less formal report of 

investigation can be used. For example, the investigator may, with 

supervisory approval, opt to eliminate a detailed report of investigation if 

the evidence is so clear that it is not necessary.

OSC officials stated that the reorganization increased productivity, thereby 

allowing cases to be processed faster. According to OSC officials, during 

the 3-1/2 years prior to the reorganization, the staffs of the separate 

divisions processed an average of 5.3 cases annually per person. During 

the first year after the merger of the divisions, productivity increased to 7 

cases processed per person. 

Adoption of Priority System 

Enabled Agency to Process 

Certain Higher Priority 

Cases Faster

In November 2001, OSC issued a policy directive that adopted a priority 

case processing system that classifies all its prohibited personnel practices 

cases into one of three categories. Under this approach, cases are 

investigated and analyzed based on the category to which they have been 

assigned. Category 1 prohibited personnel practices cases consist of the 

most serious personnel actions, involving employees who are threatened 

with removals, suspensions for more than 14 days, geographic 

reassignments, and reductions in grade. Category 2 cases are less severe, 

including cases where suspensions are 14 days or fewer, performance 

appraisal ratings are below “fully successful,” and denials of within-pay 

grade increases are being challenged. Category 3 cases involve the least 

serious adverse personnel actions, such as lower performance ratings that 

are still “fully successful,” non-geographical reassignments or details, 

failure to promote, and reprimands. For category 3 cases, investigators 

may use streamlined procedures that may require less time and staff 

resources to complete. 

In addition, within each of these categories, prohibited personnel practices 

cases may be designated “priority”—meaning they will receive the most 

prompt attention—based on the following factors: the urgency of the need 

for redress, the strength of the evidence supporting a violation, or the 

public interest in prompt resolution of the case. For instance, priority 

cases within category 1 must either (1) meet OSC’s criteria for seeking a 
Page 17 GAO-04-36 U.S. Office of Special Counsel

stay of the personnel action or already have a stay in effect, or (2) be a case 

in which OSC believes, on the basis of the evidence, that there is a 

substantial likelihood that the complaint is meritorious and in which OSC 

will seek corrective or disciplinary action. Within each category, 

whistleblower reprisal complaints are given top priority. 

 

Since the implementation of this system for prohibited personnel practices, 

OSC has been able to process priority cases faster than the non-priority 

cases. OSC’s statistics show that from January 1, 2002, through September 

30, 2002, OSC processed category 1 priority cases 17 percent faster than 

non-priority cases, category 2 priority cases 30 percent faster, and category 

3 priority cases 50 percent faster. From October 1, 2002, through July 31, 

2003, similar results were reported for category 1 and 3 cases. The number 

of category 2 priority cases during this period was too small for a reliable 

comparison with non-priority cases. 

OSC also has procedures to prioritize whistleblower disclosures. Although 

these procedures have been in use since 2002, an agency official indicated 

that they have not been adopted through a policy directive. Under the 

priority system, all cases are reviewed by the unit head, who makes an 

initial assessment of whether the cases are likely to meet the “substantial 

likelihood” determination and places the cases in one of three priority 

categories. Priority 1 cases are those that would likely meet the 

determination and would be referred to the agency head for investigation. 

Priority 1 cases are further categorized into two subcategories. 

Subcategory A cases deal with disclosures of substantial and specific 

dangers to public health and safety, while subcategory B cases are those 

dealing with non health and safety disclosures. Priority 2 cases are those 

where further review may be appropriate and would be referred to the 

agency’s Office of the Inspector General. These cases do not include health 

and safety allegations. Priority 3 cases are those that are not likely to meet 

the substantial likelihood determination and, therefore, likely to be closed. 

OSC further categorizes these disclosures into subcategory A for those that 

involve disclosures of public health and safety and subcategory B for all 

other disclosures. According to OSC, in fiscal year 2002, on average, 

priority 1A cases—dealing with health and safety disclosures—were 

referred to agency heads 1.2 times faster than priority 1B cases, which deal 

with other violations. In fiscal year 2003, on average, OSC stated that 

priority 1A disclosures were referred to agency heads 2.4 times faster than 

priority 1B disclosures.
Page 18 GAO-04-36 U.S. Office of Special Counsel

Since 2000, OSC has been using an ADR program for a small number of 

prohibited personnel practices cases, which has reduced the average 

processing time for these cases and reduced case backlog slightly. Through 

ADR, OSC reported that it resolved 13 cases in fiscal year 2002 and 15 cases 

in fiscal year 2003. The number of backlogged cases in table 4 reflects the 

resolution of these cases through ADR. Similarly, OSC reported that cases 

that went through ADR took 115 days in fiscal year 2002 and 122 days in 

fiscal year 2003. The data from table 2 on the processing time for 

prohibited personnel practices cases reflect that a small percentage of 

these cases was resolved through ADR. OSC’s ADR program is further 

discussed in appendix III. 

Agency Says Existing 

Resources Are 

Inadequate, But It Is 

Not Clear How 

Additional Resources 

Would Help Alleviate 

Backlogs

OSC told us that the primary reason it was not able to process cases more 

quickly was inadequate resources. Our analysis shows that additional staff 

alone may not solve the case processing problems. For example, the 

agency processed about the same number of cases in fiscal year 2003 that it 

had in fiscal year 1999 (2133 vs. 2109), despite having 16 percent more 

attorneys and investigators. OSC noted several mitigating factors, 

including staff turnover and the need to train new staff, which limited its 

ability to process more cases and reduce the backlog of cases. While OSC 

notes that it is difficult to meet the 15-day limit for whistleblower 

disclosure cases, the agency has not proposed an alternative time limit that 

officials believe is more realistic. Moreover, while the agency’s priority 

system appears to help handle high priority cases faster, delays in 

processing whistleblower disclosure cases are still pervasive. OSC has not 

detailed in any of its documents created for Congress or the executive 

branch a comprehensive strategy for processing more cases within 

statutory time limits and reducing the backlog of cases.

Claim that Budget for Staff 

Has Not Kept Pace with 

Caseload Does Not Fully 

Explain OSC’s Case 

Processing Record

OSC officials told us that the primary reason that the agency has not been 

more successful in meeting the statutory time limit for its cases, 

particularly those involving whistleblower disclosure, is lack of an 

adequate number of staff. 

A preliminary OSC analysis of prohibited personnel practices caseload 

since 1984 showed that through 1989, the agency’s caseload, staffing levels, 

and budget were fairly stable. From fiscal year 1991 to 1993, the number of 

new cases increased nearly 36 percent. Still, OSC data show that at the 

beginning of fiscal year 1993, no prohibited personnel practices case was 
Page 19 GAO-04-36 U.S. Office of Special Counsel

more than 6 months old—well within the 240-day limit. The number of new 

cases declined slightly between fiscal years 1994 and 1996. During this 

period (1991-1996) the number of full-time equivalent staff dropped from 90 

to 86. These data, however, cover a period before the seven-year period 

that we examined. Since 1994, OSC has had backlogged prohibited 

personnel practices cases, and the number of such cases has fluctuated. 

OSC officials said budget for staff has not increased fast enough to allow 

the agency to consistently meet the statutory time limits, especially for 

whistleblower disclosure cases. During fiscal years 2000 and 2001, 

Congress authorized OSC to hire 15 additional staff, which brought its fulltime equivalent staff to 106. To decrease case processing times, most of the 

new staff were added to the divisions responsible for investigating and 

prosecuting cases. 

It does not appear that these staff and productivity increases after the 

merger of attorneys and investigators into one division translated into the 

processing of a significantly larger number of prohibited personnel 

practices and whistleblower disclosure cases. The total cases processed in 

fiscal year 1997 was 2,385. The figure dropped in each of fiscal years 1998, 

1999, 2000, and 2001 before increasing slightly in fiscal year 2002 and 

moderately in fiscal year 2003. The number of whistleblower disclosure 

cases processed dropped in both fiscal year 2001 (by about 13 percent) and 

the following year (by about 16 percent), before rebounding with a 40 

percent increase in fiscal year 2003. But the number of such cases 

processed that year was still slightly less than in fiscal year 1999 (401 cases 

vs. 414). The number of new prohibited personnel practices cases 

processed declined from fiscal year 1997 through fiscal year 2000, with 

small increases in each of the next three years. But the number of cases 

processed in fiscal year 2003 was about the same (1732 vs. 1695) as that in 

fiscal year 1999. 

OSC officials offered several mitigating factors that they say limited the 

agency’s ability to process more cases despite increases in staff. First, 

agency data showed a high turnover in staff between 2000 and 2003, which 

deprived the agency of institutional knowledge at a time when officials 

were trying to train the new staff. During this period, OSC hired 47 new 

staff and had 37 departures—all of whom were investigators or attorneys 

involved in processing cases. Second, officials indicated that new staff 

need training and time to develop experience before they can become full 

contributors to case processing efforts. The ability of the staff to develop 
Page 20 GAO-04-36 U.S. Office of Special Counsel

requisite experience through on-the-job training was hindered by the high 

turnover.

Another contributing factor cited by OSC officials leading to the agency’s 

difficulty in processing prohibited personnel practices cases within 

statutory time limits are the substantive and procedural processing 

requirements imposed by the Whistleblower Protection Act of 1989 and the 

OSC Reauthorization Act of 1994. The OSC reauthorization law added to 

the time it could take the agency to process certain prohibited personnel 

practices cases. Before the law was enacted, if OSC decided there were no 

reasonable grounds for believing such a violation occurred, the agency 

could immediately issue a final letter notifying a complainant of the 

termination of the investigation. The reauthorization law, however, 

requires OSC to send the complainant a status report of its proposed fact 

findings and legal conclusions supporting this decision and give the 

complainant 10 days to submit comments before OSC’s decision becomes 

final. 

The 1989 whistleblower law and the 1994 reauthorization law require more 

information in the final letters OSC sends to complainants notifying them 

of the termination of the prohibited personnel practice investigation. Prior 

to the 1989 law, OSC was simply required to notify the complainant of the 

termination “and the reasons therefore”. The 1989 law required additional 

information in the notification letter, namely a summary of the relevant 

facts, including the facts that support, and do not support, the 

complainant’s allegations. In addition, the 1994 OSC reauthorization law 

required that the notification letter address any comments submitted by the 

complainant in response to OSC’s proposal to terminate the investigation. 

While the expanded letters were intended to be more “customer friendly”, 

they are more time-consuming to write than the shorter letters that the 

agency sent to complainants before the 1989 law was enacted. 

According to OSC, in the fall of 1993, the agency implemented new 

procedures in response to congressional criticism about the breadth of the 

agency’s investigations and to be more consistent with the “spirit” of the 

Whistleblower Protection Act of 1989. These new procedures required 

broader investigations in all cases and created additional internal 

memoranda on each case. As a result, investigations take longer, resulting 

in the processing of fewer cases, and an increased backlog. Before these 

new procedures were implemented, OSC officials said, the agency achieved 

higher productivity by limiting the duration of the investigation and the 
Page 21 GAO-04-36 U.S. Office of Special Counsel

subsequent explanation of the reasons for closure in cases where the 

agency found no merit.

The changes prompted by these statutes and congressional interest, 

however, were implemented before the period that we examined. Thus, it 

is worth noting that for both whistleblower disclosure and prohibited 

personnel practices cases, if OSC had been able to process as many cases 

during each of the fiscal years from 1997 through 2003 as it did in its best 

year for each type of case (1997 for prohibited personnel practices cases, 

1999 for whistleblower disclosure cases), the backlog for both would have 

been significantly lower by the end of fiscal 2003 than it was. Other than 

the increase in, and complexity of, whistleblower disclosure cases after 

September 11, 2001, OSC did not inform us of any significant events during 

the years for which we obtained data that would have prevented the agency 

from achieving this goal.

Meeting 15-day Limit for 

Whistleblower Disclosure 

Cases Is Difficult, But OSC 

Has Not Proposed an 

Alternative Time Limit 

According to OSC, in 1978, during congressional consideration of the Civil 

Service Reform Act of 1978, senators drafting the legislation envisioned 

that 15 to 20 full-time staff would be needed to process whistleblower 

disclosure cases within 15 days. OSC has never assigned more than five 

staff to whistleblower disclosure cases and typically has assigned only two. 

Given that OSC’s total full-time staff has never exceeded more than 106 and 

given the greater volume of prohibited personnel practices cases, assigning 

several more staff to whistleblower disclosure cases would require the 

agency to shift staff from one kind of case to the other. OSC officials said 

they have not shifted staff from what they consider their primary mission—

prohibited personnel practices cases—to whistleblower disclosure cases 

because this would decrease timeliness for prohibited personnel practices 

cases. 

OSC officials pointed out that no special counsel has believed that OSC 

could meet the 15-day case processing time limit for whistleblower 

disclosures and that cases have generally become more complex in recent 

years. OSC officials told us they were not aware of any proposal by the 

agency to have the 15-day limit increased. 

Another reason that OSC officials cited for not meeting the 15-day time 

limit is that it can be difficult to contact whistleblowers to discuss their 

allegations and receive relevant documentation from them and from 

agency officials within this short time frame. In one case that was referred 

by a congressional committee, for example, it became increasingly difficult 
Page 22 GAO-04-36 U.S. Office of Special Counsel

to conduct business during the day because the whistleblower preferred to 

receive calls at night and would use only a commercial fax machine on 

weekends to send supporting documentation. In this case, delays in 

submitting the evidence contributed to OSC missing the 15-day limit. 

More broadly, if OSC has a strategy for deploying any or all of the 

additional staff it received in 2000 and 2001 on whistleblower disclosure 

cases and a way of evaluating whether that strategy is working, the agency 

has not shared it with us. Having such a strategy could be important for 

ensuring that the most serious whistleblower disclosure cases receive not 

just the most prompt—but also the most comprehensive—attention. If the 

OSC 2000 data are any guide to the future, the majority of cases (96 percent 

from fiscal years 1997-2003) will continue to be those that do not meet the 

“substantial likelihood” standard. If a quick determination can be made in 

a large number of these cases that the standard is not met, it may be that 

OSC should deploy more staff to this “weeding out” process. Alternatively, 

if it is not immediately clear in a significant number of these cases whether 

the “substantial likelihood” standard can be met, then OSC might consider 

devoting more staff to reviewing these cases. Although OSC’s description 

of the cases priority system indicates that they can track pending and 

closed whistleblower disclosure cases and use these data to review 

workload distribution and cases processing efficiency, officials have not 

indicated that they have been able to use these data to reduce the time 

spent processing cases. 

While OSC Reports to 

Congress and OMB Specify 

Some Reasons for Case 

Processing Difficulties, 

These Reports Have Not 

Proposed Solutions to Them

In the last several years, OSC has issued a number of mandated reports and 

correspondence to the Congress and the Office of Management and Budget 

that discuss OSC’s case processing difficulties and resulting backlog. But 

OSC has not specified proposed long-term solutions for them. In its Annual 

Report to Congress, OSC is required to report information on prohibited 

personnel practices cases that are backlogged. In the annual reports that 

we reviewed, the agency did so and acknowledged that the backlog was a 

problem. For example, in its fiscal year 1999 report to Congress, OSC 

disclosed that a significant backlog of cases was pending at the agency that 

resulted in delays in resolving complaints. The fiscal year 2002 report 

noted that reducing the backlog is important because (1) Congress 

imposed the 240-day limit for prohibited personnel practices cases in 

response to widespread criticism concerning long delays in the processing 

of complaints by OSC, and (2) a large backlog can prevent OSC staff from 

quickly investigating and resolving more critical cases. But none of the 

annual reports has discussed specific actions that OSC expects to take and 
Page 23 GAO-04-36 U.S. Office of Special Counsel

how these actions would affect its ability to process cases—either within 

or outside statutory time limits—and reduce the backlog or the actual 

effects of actions the agency took in previous years. 

OSC requested seven additional staff in its fiscal year 2004 budget request 

to the Congress, but did not discuss how the additional staff would be 

deployed or the extent to which they would help the agency process cases 

more quickly and reduce the backlog. Nor did OSC provide the Congress 

with an estimate of the number of staff required to solve these problems 

and/or an analysis of other changes necessary to do so.

In September 2003, the Chairman of the Senate Finance Committee wrote 

to OSC expressing concerns about the backlog of whistleblower disclosure 

cases and requesting information on how OSC planned to address the 

backlog. In an October 2003 response, the Acting Special Counsel said OSC 

has long struggled with how best to address the backlog of whistleblower 

disclosure cases. He cited past efforts, including assigning such cases to 

attorneys from units that would not normally handle whistleblower 

disclosure cases, which led to the resolution of some cases, but was not as 

successful as the agency hoped. He said he had assigned two more 

investigators to assist with the whistleblower disclosure caseload. But the 

Acting Special Counsel did not specifically discuss what effect the 

additional investigators would have on the agency’s ability to meet the 15-

day limit or to reduce the number of backlogged whistleblower disclosure 

cases.
Page 24 GAO-04-36 U.S. Office of Special Counsel

Strategic workforce planning—planning that focuses on developing longterm strategies for acquiring, developing, and retaining an organization's 

people aligned with human capital approaches that are clearly linked to 

achieving programmatic goals—is an essential element of a modern, 

effective human capital management system. OSC’s fiscal year 2004 annual 

performance plan includes workforce strategy as one of six strategic goals 

and discusses strategies that the agency plans to take “to maintain a highly 

skilled, well-trained, customer-oriented workforce, and to deploy it most 

effectively to carry out the agency’s mission.” This plan discusses changes 

in staff at the beginning of fiscal year 2001 due to attrition and the addition 

of new staff, and the fact that experienced staff has been diverted from 

their usual duties to mentor and help train new staff. The agency has also 

identified critical skills and developed data on employee attrition and 

retirement.11 However, the agency’s planning to date lacks in long-term 

solutions directly associated with improving case processing and reducing 

case backlog. The agency has not identified (1) critical skills needed to 

meet current and emerging goals, (2) gaps in identified skills, (3) strategies 

to meet gaps, (4) an action plan to implement strategy, and (5) a plan to 

evaluate the results. 

Conclusion OSC’s challenge in meeting its case processing time standards continues 

despite actions taken by the Congress and the agency. The delays in 

processing whistleblower disclosure cases are pervasive: Of the total 

inventory of cases at the end of fiscal year 2003, 97 percent had not been 

processed in the 15-day statutory time frame. OSC’s actions, including 

realigning its staff and developing a case priority system, have not 

significantly reduced the case backlog. Presenting a strategy to Congress 

that demonstrates how additional staffing, organizational changes, or 

legislative solutions would help reduce the backlog of prohibited personnel 

practices and whistleblower disclosure cases would provide Congress with 

information that it needs for oversight and resource allocation. 

Recommendation for 

Executive Action

We recommend that the Special Counsel provide Congress with a detailed 

strategy designed to allow more consistent processing of cases within 

11This workforce plan was prepared by OSC in response to “Workforce Planning and 

Restructuring,” OMB Bulletin No. 01-07, May 8, 2001.
Page 25 GAO-04-36 U.S. Office of Special Counsel

statutory time limits and a reduction in the backlog of cases for which 

these limits have already passed.

Agency Comments On January 21, 2004, we provided a draft of this report to OSC for review 

and comment. We met with the Special Counsel and the Associate Special 

Counsel for Legal Counsel and Policy to discuss the draft report and also 

received written comments from the agency. OSC generally agreed with 

the contents of the report noting that our review “has addressed a critical, 

long-standing issue of importance not just to this agency, but to individuals 

who seek its assistance, other government agencies, Congress, and the 

public.” The agency agreed with our recommendation to provide Congress 

with a detailed strategy designed to allow more consistent processing of 

cases within statutory time limits and a reduction in the backlog of cases. 

Noting that its annual report to Congress for fiscal year 2003 has been 

substantially completed, OSC stated that it plans to report to Congress on 

its future strategy as expeditiously as possible this year. We believe this is 

reasonable. OSC’s written response is included in appendix IV. In addition, 

OSC provided technical comments and clarifications, which we have 

incorporated where appropriate.

As agreed with your office, unless you publicly announce its contents 

earlier, we plan no further distribution of this report until 30 days after its 

issuance date. At that time we will send copies to OSC and interested 

congressional committees. We will make copies available to others upon 

request. In addition, the report will be available at no charge on GAO’s Web 

site at http://www.gao.gov. If you or your staff have questions about this 

report, please call me at (202) 512-9490 or Belva Martin, Assistant Director, 

on (202) 512-4285. Key contributors to this engagement are listed in 

appendix V. 

Sincerely yours, 

George H. Stalcup

Director, Strategic Issues 
Page 26 GAO-04-36 U.S. Office of Special Counsel

Appendix I

OSC’s Data Tracking System and Privacy Apendxies

Protection Policies ApendxiI

Data Tracking System In July 1999, OSC developed a system that tracks its workload across the 

different case types. This computerized system, known as “OSC 2000,” 

serves two purposes (1) to code and track information received in, and all 

official actions taken on, each case so that it is available independent of the 

official paper case file, and (2) to create a database from which 

management workload and other reports can be generated. 

OSC 2000 is designed to capture and record data on all case types from the 

initial filing of the complaint, disclosure, or request for an advisory opinion, 

until closure and archiving of the file. Information, including data on the 

complainant, agency involved, named official, allegations, assigned OSC 

staff person, and all official OSC actions in the case are captured in 

chronological order. A case “profile” report has real time information on a 

case from the point of initiation to closure, including the case status, 

actions taken, staff assigned, allegations and other complaint-related 

information. Only those users who have need for the information OSC 2000 

contains, which generally includes attorneys, investigators and managers, 

have access rights. In addition, only those users who have the need for 

information on a day-to-day basis are assigned a logon identification and 

password. For example, the Human and Administrative Resource 

Management Branch has no need to use the system because that unit only 

deals with internal OSC personnel and administrative issues; therefore, 

none of its staff can access OSC 2000. 

OSC 2000 includes an automated real-time data reporting system, OSC 2000 

Reports, which queries the database to create a number of management 

and workload reports. Reports include ones for total pending workload, 

average age of cases, cases pending by division, attorney or investigator; 

and cases resolved by month and category. These reports serve as tools for 

management to look across the agency at the status of caseload activity 

and resource allocation. 

To help ensure reliable and accurate data, and reports generated based on 

that data, OSC 2000 has a number of built-in, multi-layered safeguard and 

security features. For example, the system is designed to control what can 

be entered, edited, or deleted by a given user. The system also incorporates 

several layers of review to minimize the possibility of user error. Other 

procedures maintain integrity of key data entered into the system. These 

include system blocks to prevent case closures without essential data, and 

data reconciliation, as needed, by the Records Management Officer and 

management officials. Moreover, senior staff are required to review and 
Appendix I

OSC’s Data Tracking System and Privacy 

Protection Policies

Page 27 GAO-04-36 U.S. Office of Special Counsel

continually monitor monthly reports pertaining to case intake and 

processing. These reports provide the basis for the statistical data reported 

in OSC’s Annual Reports to Congress. 

OSC 2000 is tied to the agency’s network operating system and its e-mail 

system. When a new case is entered into the system, required reporting 

dates for the case are calculated and the system automatically notifies the 

assigned staff before these dates arrive. For prohibited personnel practices 

cases, OSC is required by law to provide each complainant:

(1) a letter acknowledging receipt of the complaint and identifying the 

agency staff member assigned to the case within 15 days of receipt;

(2) a status report 90 days after the acknowledgement letter and a 

status report every 60 days thereafter while the case is active; and

(3) a preliminary determination letter when OSC proposes to close a 

complaint based on a lack of evidence or insufficient evidence, 

providing the complainant with one more opportunity for input before 

OSC makes its final decision.

OSC’s Information Systems Branch has oversight responsibility for OSC 

2000 to ensure reliability and accuracy is maintained. For example, system 

users cannot delete a case; only the system administrator is permitted to do 

so. To safeguard against accidental deletions, data pertaining to a specific 

type of allegations and certain case actions, such as the date when a 

complaint is received, cannot be deleted by anyone. Also, for security 

purposes, the system maintains an audit trail for deletions. This audit trail 

keeps track of all deleted data, which are kept in the system’s “holding 

area” in accordance with an electronic record retention schedule. Paper 

documents in a typical case file are retained for a total of three years after 

closure before being destroyed.

All OSC program staff receive training about the operation of OSC 2000 and 

OSC 2000 Reports as part of new employee orientation, and on an ongoing 

basis. Moreover, an “OSC 2000 Users’ Group” meeting is held 

approximately every six weeks with representatives from each work unit. 

The purpose is to obtain regular feedback from customers, and to review 

changes and improvements to the system. These regular meetings provide 

a forum for problems to be raised and solved and for enhancements to the 

system to be suggested. 
Appendix I

OSC’s Data Tracking System and Privacy 

Protection Policies

Page 28 GAO-04-36 U.S. Office of Special Counsel

Privacy Protection 

Policies

Given the nature of OSC’s enforcement mission, its complaint and litigation 

files often contain personal or sensitive information, including information 

from or about complaint filers, and other information made or received by 

OSC during its investigative and prosecuting activities. OSC’s basic privacy 

protection policies are derived from the Privacy Act of 1974, 5 U.S.C., 

section 552a.1

 In addition to the Privacy Act, the Whistleblower Protection 

Act requires that the identity of any employee, former employee, or 

applicant for employment who makes a whistleblower disclosure may not 

be disclosed by OSC without such individual’s consent unless OSC 

determines that the disclosure of the individual’s identity is necessary 

because of an imminent danger to public health or safety or imminent 

violation of any criminal law.

Generally, unless permitted under one of the Privacy Act’s exceptions, OSC 

cannot disclose any of its records by any means to any person, or to 

another agency, except pursuant to a written request by, or with the prior 

written consent of, the individual to whom the record pertains. Exceptions 

to the Privacy Act permit certain disclosures without such a request or 

consent. For example, OSC may disclose information within the agency 

when other OSC employees need the information to do their jobs, to 

federal law enforcement agencies for civil or criminal law enforcement 

purposes, or under OSC’s routine uses.

Under the Privacy Act, OSC is permitted to disclose information from its 

files when doing so would be in accordance with a routine use of such 

information. As required by the Privacy Act, OSC has published a 

descriptive listing of its routine uses in the Federal Register, 66 Fed. Reg. 

36611 and 51095 (2001). For example, OSC may provide information to the 

Equal Employment Opportunity Commission about allegations of 

discrimination and to the Merit Systems Protection Board when filing a 

petition for disciplinary action. In the event that OSC believes that 

disclosure may be appropriate in a circumstance when it has not received a 

written request or consent from a complainant or whistleblower, and 

1

The Privacy Act addresses the permissible disclosure of those agency records that are 

contained in a system of records, which is a group of records from which information is 

retrievable by name or other personal identifier of an individual. OSC’s system of records, 

designated as “OSC GOVT-1, Complaint, Litigation and Political Activity Files,” include 

records in complaint files, disclosures files, Hatch Act advisory opinion files, and litigation 

files. OSC is required to publish in the Federal Register upon establishing or revising its 

record system a notice of the existence and character of the system of records. 
Appendix I

OSC’s Data Tracking System and Privacy 

Protection Policies

Page 29 GAO-04-36 U.S. Office of Special Counsel

routine use or other Privacy Act condition of disclosure does not apply, 

OSC will seek written authorization from the complainant or 

whistleblower. 

Regardless of the permissibility of disclosure under the Privacy Act, OSC is 

specifically prohibited by law from responding to inquiries concerning 

work performance, ability, aptitude, general qualifications, character, 

loyalty or suitability for any personnel action of any complainant who filed 

a prohibited personnel practice allegation, unless (1) the complainant 

consents in advance, or (2) an agency requires the information in order to 

make a determination concerning the complainant’s access to highlysensitive national security information. (5 U.S.C., § 1212(g)(2)).

When a prohibited personnel practice complaint is filed, it is OSC’s policy 

not to reveal the identity of the complainant even to the involved agency 

unless OSC has the complainant’s consent. OSC requires each filer to 

select one of three consent statements that contains varying restrictions on 

OSC’s disclosure and use of complainant information. 

OSC has taken a number of steps within the agency to ensure that the rights 

and privacy of the complainants are adequately protected. The agency 

requires that all staff receive training about ensuring the confidentiality of 

OSC records and the privacy rights of those individuals bringing cases to it. 

In addition, the agency makes information about its policy statements and 

disclosure policies under the Whistleblower Protection Act available to 

each person alleging reprisal for whistleblowing.2

 For example, in April 

1995, OSC issued “Policy Statement Concerning the Disclosure of 

Information Regarding Prohibited Personnel Practice Complaints.” OSC 

enhanced this statement in September 1995, when it issued another policy 

statement on the “Disclosure and Use of Information from OSC Files,” 

which contains disclosure information relevant to all OSC case types and 

outlines the Privacy Act provisions under which OSC may disclose 

information about a case. Moreover, in September 2002, OSC issued two 

updates to the statements that expounded on the disclosure and use of 

information from OSC program files. These policy papers afford better 

understanding of how OSC uses and discloses the information that OSC 

acquires or creates while investigating and prosecuting cases.

2

The Office of Special Counsel Reauthorization Act of 1994, P.L. 103-424, required OSC to 

issue a policy statement providing detailed guidelines on the disclosure and the use of 

information to be made available to each person alleging reprisal for whistleblowing.
Page 30 GAO-04-36 U.S. Office of Special Counsel

Appendix II

Scope and Methodology ApendxiI

We examined efforts by OSC to manage its caseload. Our review provided 

information in the following areas (1) OSC’s caseload by type and number 

and changes to the caseload between fiscal years 1997 to 2003, (2) the 

extent to which cases were processed within time frames set by Congress, 

(3) actions taken by management to address workload issues, and (4) the 

agency’s perspective on the adequacy of its resources. In addition, we were 

asked to provide information on OSC’s data tracking system and its privacy 

protection policies.

To determine the agency’s caseload by type, number, and changes over 

time, we reviewed OSC’s Annual Reports to Congress for fiscal years 1997 

through 2002, the latest available, as well as information in OSC’s budget 

request, annual performance plans, and other reports to Congress. We 

examined the information across the various reports and compared them 

to agency-generated data to ensure that data for each year were 

consistently stated. We discussed with agency officials the reasons for the 

fluctuations that occurred in the caseload over time.

For the reportable years under review, we received and reviewed data by 

case type. In our examination of the data, we identified discrepancies, 

primarily in the beginning and ending inventory of cases. To resolve these 

discrepancies, we met with OSC’s Chief Information Officer. He told us 

that the methodology used for querying the system had limitations. In 

particular, the data entry operator used ad hoc queries that were not 

reviewed and verified. To provide us with accurate data, he developed a 

software program that offered a more reliable and consistent approach to 

querying OSC’s database. We tested the accuracy and completeness of a 

sample of cases from OSC’s database. Based on the results of our tests of 

required elements, we determined that the data were sufficiently reliable 

for the purposes of our report. 

To determine the statutory time frames set by Congress, we reviewed 

statutory requirements for processing prohibited personnel practice and 

whistleblower disclosure cases. To determine the number of cases that 

were not meeting the prescribed timeframes, we obtained data on (1) the 

total number of cases processed, including subsets of the number of cases 

processed within and outside of the statutory timeframes, (2) the average 

time spent to process cases, (3) the beginning inventory levels, and (4) the 

number of cases in backlog. Based on this information, we computed and 

verified the number and percentage of cases in backlog for each year. 

Throughout the report, we refer to “processed cases” to denote that OSC 

has made the determination required within the statutory time limits for 
Appendix II

Scope and Methodology

Page 31 GAO-04-36 U.S. Office of Special Counsel

prohibited personnel practices cases or whistleblower disclosure cases. 

We met with agency officials to discuss the delays in processing the cases 

and to obtain their views on the agency’s ability to meet these time 

standards.

To learn about the actions taken by management to address workload 

issues, we met with various managers and staff responsible for 

implementing several agency-wide initiatives. We reviewed documentation 

describing the progress the agency made toward accomplishing internal 

reforms, including a major restructuring of organizational units and 

streamlining case processing procedures. We examined productivity 

measures resulting from changes to case processing procedures.

 To obtain the agency’s perspective on the adequacy of its resources, we 

spoke with agency officials and reviewed documents on the benefits of 

obtaining additional staff and funding to help eliminate the backlog and 

process cases more timely. We discussed the agency’s view on the 

principal contributors to its inability to eliminate backlog cases. We then 

analyzed the information that we obtained to form conclusions about the 

extent to which the agency had made optimum use of its existing 

resources. Our findings about the need for an overall strategy on how the 

agency plans to reduce the backlog are based in part on our extensive work 

on strategic workforce planning. 

To learn about OSC’s case tracking system, OSC 2000, we reviewed 

documentation on the system’s internal security controls and security 

features for safeguarding complaint information. To determine the policies 

and procedures in place, and management oversight capabilities to ensure 

reliability and quality, we met with the Chief Information Officer and the 

System Administrator. We also received a hands-on demonstration of 

system requirements for entering data. We assessed the reliability of the 

data in OSC 2000 by reviewing electronic queries of required data elements, 

reviewing existing information about the data and the system that 

produced them, and interviewing agency officials knowledgeable about the 

data. Based on our assessment of required data elements, including the 

recently generated caseload data, we determined that the data were 

sufficiently reliable for the purposes of our report. 

To determine OSC’s policy on privacy protection for the types of cases that 

it handles, we met with agency officials and examined agency policy 

statements and disclosure procedures developed for the privacy and 

confidentiality of complainants. 
Page 32 GAO-04-36 U.S. Office of Special Counsel

Appendix III

Organization of the Office of Special Counsel ApendxiI

In fiscal year 2003, OSC had five operating divisions: the Complaints and 

Disclosure Analysis Division, three Investigation and Prosecution 

Divisions, and the Legal Counsel and Policy Division. The three 

Investigation and Prosecution Divisions resulted from the 2001 merging of 

the former Investigation Division and Prosecution Divisions.

The Complaints and Disclosure Analysis Division includes OSC’s two 

principal intake units for new cases received by the agency—the 

Complaints Examining Unit and the Disclosure Unit—and employs a total 

of 24 staff. The Complaints Examining Unit is the intake point for all 

prohibited personnel practices and other violations of civil service law, 

rule, or regulation within the OSC’s jurisdiction. The attorneys and 

personnel management specialists in this unit conduct an initial review of 

complaints to determine whether they are within OSC’s jurisdiction and 

whether further investigation is warranted. They refer all matters with a 

potentially valid claim to the Investigation and Prosecution Divisions.1

 The 

Disclosure Unit is responsible for reviewing information submitted by 

whistleblowers, and for advising the Special Counsel on the appropriate 

disposition of the case, including possible referral to the head of the 

relevant agency for investigation, referral to an agency Inspector General, 

or closure. Attorneys in this unit also analyze the reports of agency heads 

in response to the Special Counsel’s referral to determine whether the 

reports appear reasonable and meet statutory requirements before the 

Special Counsel transmits them to the President and appropriate 

congressional oversight committees.

The Investigation and Prosecution Divisions consist of three divisions, 

including the Hatch Act Unit and the Alternative Dispute Resolution Unit. 

The three Investigation and Prosecution Divisions investigate complaints 

referred to them by the Complaints Examining Unit. Each division reviews 

pertinent records and interviews complainants and witnesses with 

knowledge of the matters alleged. Matters not resolved during the 

investigative phase undergo legal review and analysis to determine whether 

the matter warrants corrective action, disciplinary action or both. 

Attorneys from these units conduct litigation before the Merit Systems 

Protection Board. The units also represent the Special Counsel when OSC 

1

When a matter is not referred for investigation, OSC provides complainants with a written 

statement of reasons, to which they may respond. On the basis of the response, if any, the 

Complaints Unit decides whether to finalize its preliminary determination to close the 

matter or to refer the matter for investigation.
Appendix III

Organization of the Office of Special Counsel

Page 33 GAO-04-36 U.S. Office of Special Counsel

intervenes or otherwise participates in other proceedings before the Merit 

Systems Protection Board. 

The Hatch Act Unit, part of one of the Investigation and Prosecution 

Divisions, is responsible for the administration of Hatch Act restrictions on 

political activity by federal and certain state and local government 

employees. The unit issues advisory opinions to requesters seeking 

information about the application of the Act’s provisions to specific 

activities. It also receives and reviews complaints alleging Hatch Act 

violations, referring complaints to an Investigation and Prosecution 

Division, when warranted, for further investigation and possible 

prosecution before the Merit Systems Protection Board. 

In selected cases that have been referred for further investigation, the 

Alternative Dispute Resolution (ADR) unit, a part of another one of the 

Investigation and Prosecution Divisions, contacts the complainant and the 

employing agency to invite them to participate in OSC’s voluntary 

Mediation Program. If both parties agree, OSC conducts a mediation 

session, led by OSC mediators who have mediation training and experience 

in federal personnel law. When mediation resolves the complaint, the 

parties execute a written and binding settlement agreement. If mediation 

does not resolve the complaint, it is referred for further investigation, as it 

would have been had the parties not attempted mediation. 

The Legal Counsel and Policy Division serves as OSC’s office of general 

counsel, manages the agency’s Freedom of Information/Privacy Act, and 

ethics programs, and engages in policy planning, development, and 

implementation. The division is allotted five positions to carry out these 

functions.

OSC also has two administrative support units. The Human and 

Administrative Resources Management Branch, composed of six 

employees, provides personnel, procurement, and other administrative 

services; and the Information Systems Branch, with seven employees, 

provides information technology, records management and mail services.
Page 34 GAO-04-36 U.S. Office of Special Counsel

Appendix IV

Comments from the Office of Special Counsel ApendxiIV
Appendix IV

Comments from the Office of Special Counsel

Page 35 GAO-04-36 U.S. Office of Special Counsel
Page 36 GAO-04-36 U.S. Office of Special Counsel

Appendix V

GAO Contact and Staff Acknowledgments ApendxiV

GAO Contact Belva Martin, (202) 512-4285

Acknowledgments In addition to the person named above, Karin Fangman, Sharon Hogan, 

Michael Rose, and Greg Wilmoth made key contributions to this report.

(450121)
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