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Report to Congressional Requesters: 

March 2004: 

U.S. OFFICE OF SPECIAL COUNSEL: 

Strategy for Reducing Persistent Backlog of Cases Should Be Provided to 
Congress: 

[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-04-36]: 

GAO Highlights: 

Highlights of GAO-04-36, a report to congressional requesters 

Why GAO Did This Study: 

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. 

What GAO Found: 

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.

What GAO Recommends: 

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.

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.

[End of section]

Contents: 

Letter: 

Results In Brief: 

Background: 

Caseload Has Consisted Mainly of Prohibited Personnel Practices Cases, 
and a Large Increase in Whistleblower Disclosure Cases Occurred After 
September 11, 2001: 

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: 

Agency Data Indicate Attempts to Handle Caseload More Efficiently Have 
Had Salutary Effects: 

Agency Says Existing Resources Are Inadequate, But It Is Not Clear How 
Additional Resources Would Help Alleviate Backlogs: 

Conclusion: 

Recommendation for Executive Action: 

Agency Comments: 

Appendixes: 

Appendix I: OSC's Data Tracking System and Privacy Protection 
Policies: 

Data Tracking System: 

Privacy Protection Policies: 

Appendix II: Scope and Methodology: 

Appendix III: Organization of the Office of Special Counsel: 

Appendix IV: Comments from the Office of Special Counsel: 

Appendix V: GAO Contact and Staff Acknowledgments: 

GAO Contact: 

Acknowledgments: 

Tables: 

Table 1: Statutes That Govern OSC Authority: 

Table 2: Processing Times for Prohibited Personnel Practices Cases, 
Fiscal Years 1997-2003: 

Table 3: Processing Times for Whistleblower Disclosure Cases, Fiscal 
Years 1997-2003: 

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

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

Figures: 

Figure 1: Prohibited Personnel Practices: 

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

Letter March 8, 2004: 

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.[Footnote 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 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 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, 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: 

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).  

[End of figure]

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).[Footnote 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.

Unless the agency has found evidence of a criminal violation, OSC 
provides the whistleblower with a copy of the agency report for 
comment.[Footnote 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.

OSC's authority comes from five federal statutes: the Civil Service 
Reform Act of 1978,[Footnote 4] the Whistleblower Protection Act of 
1989,[Footnote 5] the Hatch Act,[Footnote 6]Office of Special Counsel 
Reauthorization Act of 1994,[Footnote 7] and the Uniformed Services 
Employment and Reemployment Rights Act of 1994, as described in table 
1.

Table 1: Statutes That Govern OSC Authority: 

Statute: Civil Service Reform Act of 1978; 
Applicable Provisions: 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.

Statute: Whistleblower Protection Act of 1989; 
Applicable Provisions: 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.

Statute: Office of Special Counsel Reauthorization Act of 1994; 
Applicable Provisions: 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.

Statute: Hatch Act; 
Applicable Provisions: 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.

Statute: Uniformed Services Employment and Reemployment Rights Act of 
1994; 
Applicable Provisions: 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. 

Source: OSC.

[End of table]

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).

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

[See PDF for image]

[End of figure]

OSC officials could not tell us with any certainty the reasons for the 
year-to-year 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 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.[Footnote 8] 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.

Table 2: Processing Times for Prohibited Personnel Practices Cases, 
Fiscal Years 1997-2003: 

Fiscal year: 1997; 
Processed within 240 days: 1,499; 
Processed in over 240 days: 604; 
Total processed: 2,103; 
Average days to process: 194; 
Percent processed within 240 days: 71.

Fiscal year: 1998; 
Processed within 240 days: 1,577; 
Processed in over 240 days: 362; 
Total processed: 1,939; 
Average days to process: 162; 
Percent processed within 240 days: 81.

Fiscal year: 1999; 
Processed within 240 days: 1,395; 
Processed in over 240 days: 300; 
Total processed: 1,695; 
Average days to process: 167; 
Percent processed within 240 days: 82.

Fiscal year: 2000; 
Processed within 240 days: 1,361; 
Processed in over 240 days: 253; 
Total processed: 1,614; 
Average days to process: 166; 
Percent processed within 240 days: 84.

Fiscal year: 2001; 
Processed within 240 days: 945; 
Processed in over 240 days: 680; 
Total processed: 1,625; 
Average days to process: 242; 
Percent processed within 240 days: 58.

Fiscal year: 2002; 
Processed within 240 days: 1,284; 
Processed in over 240 days: 420; 
Total processed: 1,704; 
Average days to process: 187; 
Percent processed within 240 days: 75.

Fiscal year: 2003; 
Processed within 240 days: 1,471; 
Processed in over 240 days: 261; 
Total processed: 1,732; 
Average days to process: 135; 
Percent processed within 240 days: 85.

Fiscal year: Average[A]; 
Processed within 240 days: 1,362; 
Processed in over 240 days: 411; 
Total processed: 1773; 
Average days to process: 179; 
Percent processed within 240 days: 77.

Source: OSC.

[A] Numbers and percentages may not add due to rounding.

[End of table]

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: 

Fiscal year: 1997; 
Processed within 15 days: 73; 
Processed in over 15 days: 209; 
Total processed: 282; 
Average days to process: 193; 
Percent processed within 15 days: 26.

Fiscal year: 1998; 
Processed within 15 days: 53; 
Processed in over 15 days: 268; 
Total processed: 321; 
Average days to process: 272; 
Percent processed within 15 days: 17.

Fiscal year: 1999; 
Processed within 15 days: 71; 
Processed in over 15 days: 343; 
Total processed: 414; 
Average days to process: 253; 
Percent processed within 15 days: 17.

Fiscal year: 2000; 
Processed within 15 days: 122; 
Processed in over 15 days: 267; 
Total processed: 389; 
Average days to process: 226; 
Percent processed within 15 days: 31.

Fiscal year: 2001; 
Processed within 15 days: 97; 
Processed in over 15 days: 243; 
Total processed: 340; 
Average days to process: 267; 
Percent processed within 15 days: 29.

Fiscal year: 2002; 
Processed within 15 days: 94; 
Processed in over 15 days: 192; 
Total processed: 286; 
Average days to process: 230; 
Percent processed within 15 days: 33.

Fiscal year: 2003; 
Processed within 15 days: 111; 
Processed in over 15 days: 290; 
Total processed: 401; 
Average days to process: 264; 
Percent processed within 15 days: 28.

Fiscal year: Average[A]; 
Processed within 15 days: 89; 
Processed in over 15 days: 259; 
Total processed: 348; 
Average days to process: 244; 
Percent processed within 15 days: 26. 

Source: OSC.

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.

[End of table]

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,[Footnote 9](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 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: 

Fiscal year: 1997; 
Beginning inventory: 1,135; 
Cases received: 1,852; 
Total caseload: 2,987; 
Processed cases: 2,103; 
Ending inventory: 884; 
Pending cases[A]: 629; 
Backlogged cases[B]: 255; 
Percent of cases in backlog: 29.

Fiscal year: 1998; 
Beginning inventory: 884; 
Cases received: 1,730; 
Total caseload: 2,614; 
Processed cases: 1,939; 
Ending inventory: 675; 
Pending cases[A]: 435; 
Backlogged cases[B]: 240; 
Percent of cases in backlog: 36.

Fiscal year: 1999; 
Beginning inventory: 675; 
Cases received: 1,729; 
Total caseload: 2,404; 
Processed cases: 1,695; 
Ending inventory: 709; 
Pending cases[A]: 504; 
Backlogged cases[B]: 205; 
Percent of cases in backlog: 29.

Fiscal year: 2000; 
Beginning inventory: 709; 
Cases received: 1,969; 
Total caseload: 2,678; 
Processed cases: 1,614; 
Ending inventory: 1,064; 
Pending cases[A]: 756; 
Backlogged cases[B]: 308; 
Percent of cases in backlog: 29.

Fiscal year: 2001; 
Beginning inventory: 1,064; 
Cases received: 1,301; 
Total caseload: 2,365; 
Processed cases: 1,625; 
Ending inventory: 740; 
Pending cases[A]: 414; 
Backlogged cases[B]: 326; 
Percent of cases in backlog: 44.

Fiscal year: 2002; 
Beginning inventory: 740; 
Cases received: 1,558; 
Total caseload: 2,298; 
Processed cases: 1,704; 
Ending inventory: 594; 
Pending cases[A]: 362; 
Backlogged cases[B]: 232; 
Percent of cases in backlog: 39.

Fiscal year: 2003; 
Beginning inventory: 594; 
Cases received: 1,791; 
Total caseload: 2,385; 
Processed cases: 1,732; 
Ending inventory: 653; 
Pending cases[A]: 449; 
Backlogged cases[B]: 204; 
Percent of cases in backlog: 31.

Fiscal year: Average[C]; 
Beginning inventory: 829; 
Cases received: 1,704; 
Total caseload: 2,533; 
Processed cases: 1,773; 
Ending inventory: 760; 
Pending cases[A]: 507; 
Backlogged cases[B]: 253; 
Percent of cases in backlog: 34.

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.

[End of table]

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.

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

Fiscal Year: 1997; 
Beginning inventory: 211; 
Cases received: 311; 
Total caseload: 522; 
Processed cases: 282; 
Ending inventory: 240; 
Pending cases[A]: 11; 
Backlogged cases[B]: 229; 
Percent of cases in backlog: 95.

Fiscal Year: 1998; 
Beginning inventory: 240; 
Cases received: 330; 
Total caseload: 570; 
Processed cases: 321; 
Ending inventory: 249; 
Pending cases[A]: 8; 
Backlogged cases[B]: 241; 
Percent of cases in backlog: 97.

Fiscal Year: 1999; 
Beginning inventory: 249; 
Cases received: 374; 
Total caseload: 623; 
Processed cases: 414; 
Ending inventory: 209; 
Pending cases[A]: 9; 
Backlogged cases[B]: 200; 
Percent of cases in backlog: 96.

Fiscal Year: 2000; 
Beginning inventory: 209; 
Cases received: 427; 
Total caseload: 636; 
Processed cases: 389; 
Ending inventory: 247; 
Pending cases[A]: 11; 
Backlogged cases[B]: 236; 
Percent of cases in backlog: 96.

Fiscal Year: 2001; 
Beginning inventory: 247; 
Cases received: 380; 
Total caseload: 627; 
Processed cases: 340; 
Ending inventory: 287; 
Pending cases[A]: 11; 
Backlogged cases[B]: 276; 
Percent of cases in backlog: 96.

Fiscal Year: 2002; 
Beginning inventory: 287; 
Cases received: 555; 
Total caseload: 842; 
Processed cases: 286; 
Ending inventory: 556; 
Pending cases[A]: 14; 
Backlogged cases[B]: 542; 
Percent of cases in backlog: 97.

Fiscal Year: 2003; 
Beginning inventory: 556; 
Cases received: 535; 
Total caseload: 1,091; 
Processed cases: 401; 
Ending inventory: 690; 
Pending cases[A]: 21; 
Backlogged cases[B]: 669; 
Percent of cases in backlog: 97.

Fiscal Year: Average[C]; 
Beginning inventory: 286; 
Cases received: 416; 
Total caseload: 702; 
Processed cases: 348; 
Ending inventory: 354; 
Pending cases[A]: 12; 
Backlogged cases[B]: 342; 
Percent of cases in backlog: 96. 

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.

[End of table]

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.

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 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.

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 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 full-time 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 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 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 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 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.

Strategic workforce planning--planning that focuses on developing long-
term 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.[Footnote 10] 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 
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  [Hyperlink, 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,

Signed by: 

George H. Stalcup 
Director, Strategic Issues: 

[End of section]

Appendixes: 

Appendix I: OSC's Data Tracking System and Privacy Protection Policies: 

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 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.

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.[Footnote 
11] 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 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 highly-sensitive 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.[Footnote 12] 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.

[End of section]

Appendix II: Scope and Methodology: 

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 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.

[End of section]

Appendix III: Organization of the Office of Special Counsel: 

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.[Footnote 13] 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 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.

[End of section]

Appendix IV: Comments from the Office of Special Counsel: 

U.S, OFFICE of SPECIAL COUNSEL 
1730 M Street, NW Suite 300 
Washington D.C. 20036-4505:

The Special Counsel:

February 24, 2004:

The Honorable David M. Walker 
Comptroller General of the United States 
General Accounting Office:

441 G Street, N.W. Washington, DC 20548:

Dear Mr. Walker:

Thank you for the opportunity to formally respond in writing to the 
General Accounting Office's (GAO's) recent draft report (# GAO-04-36) 
on case management-related operations of the U.S. Office of Special 
Counsel (OSC). OSC has already conveyed several technical edits and 
corrections that I understand will be incorporated in the final report.

In examining case processing backlogs at OSC (primarily those involving 
prohibited personnel practice complaints and whistleblower 
disclosures), the GAO 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. In the draft report received last month, GAO recommended that 
OSC's next annual report to Congress provide 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. I accept the recommendation to provide 
Congress with such a strategy, and will work to implement that 
recommendation as expeditiously as possible.

As noted in the meeting with the GAO review team two weeks ago, 
previous Special Counsels have employed a variety of strategies to 
address case processing backlogs in one or more units of the agency; 
they have also communicated those strategies at various times and by 
various means within the Executive Branch (primarily to the Office of 
Management and Budget), and to OSC congressional oversight committees. 
Some strategies have succeeded more than others, and progress was made 
in reducing the backlog of prohibited personnel practice complaints 
during fiscal year (FY) 2003, but OSC cannot become complacent in the 
face of the continuing challenges posed by case processing backlogs 
across the board.  

In the less than three months that I have been Special Counsel, it is 
already clear that the reasons for the persistence of case processing 
backlogs are many and variable; some are within OSC's control, while 
others are not. More remains to be done in coming weeks and months 
before we can arrive at and communicate a comprehensive and feasible 
strategy to address long-standing case processing backlogs. For that 
reason, and because OSC's annual report to Congress for FY 2003 has 
been substantially completed, a report to Congress on OSC's future 
strategy will be made as expeditiously as possible this year.

In closing, the convergence of the GAO report with the start of my 
tenure as Special Counsel has presented me and my staff with a valuable 
opportunity to build upon what has gone before, and to define a 
comprehensive new strategy for dealing with OSC case processing 
backlogs. I appreciate the contribution your staff has made to our 
understanding of the issues involved as we embark on that process, in 
furtherance of our commitment to provide all those we serve with 
quality service on a timely basis.

Sincerely,

Signed by: 

Scott J. Bloch: 

[End of section]

Appendix V: GAO Contact and Staff Acknowledgments: 

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): 

FOOTNOTES

[1] Reprisal for a whistleblower disclosure, however, is a prohibited 
personnel practice.

[2] MSPB is an independent, quasi-judicial agency in the executive 
branch that serves as the guardian of federal merit systems. 

[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. 

[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] OSC may continue to investigate beyond the 240-day limit with the 
complainant's permission.

[9] 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.

[10] This workforce plan was prepared by OSC in response to "Workforce 
Planning and Restructuring," OMB Bulletin No. 01-07, May 8, 2001.

[11] 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. 

[12] 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.

[13] 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.

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