United States Office of Special Counsel

Pursuant to 5 U.S.C. § 1214, the U.S. Office of Special Counsel has jurisdiction over most prohibited personnel practice (PPP) complaints brought by executive branch employees, former employees, and applicants for employment (hereinafter simply "employee" or "employees"). When a PPP complaint is submitted, the agency examines the allegations. If OSC finds sufficient evidence to prove a violation, it may seek corrective action, disciplinary action, or both.

By statute, federal employees may not be retaliated against when they disclose information that they reasonably believe evidences the following types of wrongdoing: a violation of law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety.[2] The Special Counsel is authorized to receive such disclosures of wrongdoing, but it lacks jurisdiction over PPPs committed against employees of the Central Intelligence Agency, Defense Intelligence Agency, National Security Agency, and certain other intelligence agencies found at 5 U.S.C. §2302(a)(2)(C)(ii), as well as the Government Accountability Office and any executive branch agencies principally concerned with counterintelligence or foreign intelligence, as designated by the President.

OSC's primary mission is to protect federal employees and others from "prohibited personnel practices." Those practices, defined by law at § 2302(b) of Title 5 of the United States Code (U.S.C.), generally stated, provide that a federal employee may not take, direct others to take, recommend or approve any personnel action that:

1. discriminate against an employee or applicant based on race, color, religion, sex, national origin, age, handicapping condition, marital status, or political affiliation;
2. solicit or consider employment recommendations based on factors other than personal knowledge or records of job-related abilities or characteristics;
3. coerce the political activity of any person;
4. deceive or willfully obstruct anyone from competing for employment;
5. influence anyone to withdraw from competition for any position so as to improve or injure the employment prospects of any other person;
6. give an unauthorized preference or advantage to anyone so as to improve or injure the employment prospects of any particular employee or applicant;
7. engage in nepotism (i.e., hire, promote, or advocate the hiring or promotion of relatives);
8. engage in reprisal for whistleblowing—i.e., take, fail to take, or threaten to take or fail to take a personnel action with respect to any employee or applicant because of any disclosure of information by the employee or applicant that he or she reasonably believes evidences a violation of a law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety (if such disclosure is not barred by law and such information is not specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs—if so restricted by law or Executive Order, the disclosure is only protected if made to the Special Counsel, the Inspector General, or comparable agency official);
9. take, fail to take, or threaten to take or fail to take a personnel action against an employee for exercising an appeal, complaint, or grievance right; testifying for or assisting another in exercising such a right; cooperating with or disclosing information to the Special Counsel or to an Inspector General; or refusing to obey an order that would require the individual to violate a law, rule, or regulation;[3]
10. discriminate based on personal conduct which is not adverse to the on-the-job performance of an employee, applicant, or others;
11. take or fail to take, recommend, or approve a personnel action if taking or failing to take such an action would violate a veterans' preference requirement;
12. take or fail to take a personnel action, if taking or failing to take action would violate any law, rule or regulation implementing or directly concerning merit system principles at 5 U.S.C. § 2301; or
13. implement or enforce a nondisclosure agreement or policy lacking notification of whistleblower rights.[4]

OSC was established on January 1, 1979. From then until 1989, the Office operated as the independent investigative and prosecutorial arm of the Merit Systems Protection Board, also called MSPB, or the "Board." By law, OSC received and investigated complaints from employees alleging prohibited personnel practices by federal agencies; enforced the Hatch Act, including by providing advice on restrictions imposed by the act on political activity by covered federal, state, and local government employees; and received disclosures from federal employees about wrongdoing in government agencies. OSC enforced restrictions against prohibited personnel practices and unlawful political activity by filing, where appropriate, petitions for corrective and/or disciplinary action with the Board.

In 1989, Congress enacted the Whistleblower Protection Act (WPA). The statute made OSC an independent agency within the executive branch of the federal government, with continued responsibility for the functions described above. It also strengthened protections against reprisal for employees who disclose wrongdoing in the government, and it enhanced OSC's ability to enforce those protections.

Congress enacted legislation in 1993 that significantly amended Hatch Act provisions applicable to federal and District of Columbia (D.C.) government employees, and enforced by OSC. (Provisions of the Act regarding certain state and local government employees were unaffected by the 1993 amendments.)

In 1994, USERRA became law. It defined employment-related rights of persons in connection with military service, prohibited discrimination against them because of that service, and gave OSC new authority to pursue remedies for violations by federal agencies.

Also in 1994, OSC's reauthorization act expanded protections for federal employees, and defined new responsibilities for OSC and other federal agencies. It provided, for example, that within 240 days after receiving a prohibited personnel practice complaint, OSC should determine whether there are reasonable grounds to believe that such a violation occurred, exists, or will be taken. The act extended the protections of certain legal provisions enforced by OSC to approximately 60,000 employees of what is now the Department of Veterans Affairs (DVA), and to employees of certain government corporations. It also broadened the scope of personnel actions covered under those provisions. Finally, the act made federal agencies responsible for informing their employees of available rights and remedies under the WPA, and directed agencies to consult with OSC in that process.

In November 2001, Congress enacted the Aviation and Transportation Security Act, creating the Transportation Security Administration (TSA). Under the Act, non-security screener employees of TSA can file allegations of reprisal for whistleblowing with OSC and the MSPB. Approximately 45,000 security screeners in TSA, however, could not pursue such complaints at OSC or the Board. OSC efforts led to the signing of a memorandum of understanding (MOU) with TSA in May 2002, under which OSC reviews whistleblower retaliation complaints from security screeners, and recommends corrective or disciplinary action to TSA when warranted.

The Whistleblower Protection Enhancement Act of 2012 (WPEA) became law on November 27, 2012. The WPEA strengthens protections for federal whistleblowers by removing loopholes that deterred federal employees from disclosing waste, fraud, abuse, and mismanagement. It also removes restrictions that narrowed the scope of what constituted a "protected disclosure" under the Whistleblower Protection Act. In addition, it enhances OSC's ability to hold managers and supervisors accountable for retaliating against whistleblowers, and it bolsters remedies available to federal whistleblowers who have been the victim of retaliation. Finally, it expands whistleblower reprisal protection to employees of the TSA.[5]

On December 28, 2012, President Obama signed the Hatch Act Modernization Act of 2012 into law. This update to the Hatch Act of 1939 allows most state and local government employees to run for partisan political office, many of whom were prohibited from running for partisan office under the original Hatch Act. Under the new law, state and local government employees are no longer prohibited from running for partisan office unless their salary is paid for completely by federal loans or grants. As a result of the Hatch Act Modernization Act, many state and local government employees will be able to participate more actively in governance of their communities.[6]

• Henry Kerner (October 2017 – ) Confirmed by the 115th United States Senate (voice vote) on October 16, 2017. He graduated from Harvard Law School and spent 18 years working as a career prosecutor in California. In 2011, he joined the staff of the House Committee on Oversight and Government Reform, the chief investigative committee of the United States House of Representatives. Kerner was also the staff director under Ranking Member Sen. John McCain of the Senate Permanent Subcommittee on Investigations, the lead investigative committee of the Senate. He left in early 2016 and joined Cause of Action Institute as vice president for Investigations. The group is a nonpartisan oversight foundation committed to exposing waste, fraud and abuse in the federal government, which itself has worked with whistleblower and government groups throughout the country.[43]
• Tristan L. Leavitt, Acting (September – October 2017)[44]
• Adam Miles, Acting (June – September 2017)
• Carolyn N. Lerner (April 2011 – June 2017 ) – The United States Senate confirmed Carolyn Lerner as the 8th Special Counsel on April 14, 2011.[45] Prior to her appointment as Special Counsel, Lerner was a partner in the Washington, D.C., civil rights and employment law firm Heller, Huron, Chertkof, Lerner, Simon & Salzman, where she represented individuals in discrimination and employment matters, as well as non-profit organizations on a wide variety of issues. She previously served as the federal court appointed monitor of the consent decree in Neal v. D.C. Department of Corrections, a sexual harassment and retaliation class action. Before to becoming Special Counsel, Lerner taught mediation as an adjunct professor at George Washington University Law School, and was mediator for the United States District Court for the District of Columbia and the D.C. Office of Human Rights. When she was in private practice, Lerner was featured in Best Lawyers in America, with a specialty of civil rights law, and was one of Washingtonian magazine's top employment lawyers. Lerner earned her undergraduate degree from the honors program at the University of Michigan with high distinction and was selected to be a Truman Scholar. She received a diploma in general studies from the London School of Economics, and she earned her law degree from New York University (NYU) School of Law, where she was a Root-Tilden-Snow public interest scholar. After law school, she served for two years as a law clerk to the Honorable Julian Abele Cook, Jr., Chief U.S. District Court Judge for the Eastern District of Michigan.[46]
• William E. Reukauf, Acting (November 2008 – April 2011). Reukauf joined the legal staff of the U.S. Office of Special Counsel (OSC) in January 1983. He was appointed Associate Special Counsel for Prosecution in February 1985. In 2001 he became the head of an Investigation and Prosecution division. Prior to taking over as Acting Special Counsel, he had responsibility for managing the activities of the agency's regional field offices, as well as responsibility for OSC's Alternative Dispute Resolution Program.[47] Prior to joining OSC, Mr. Reukauf was, for several years, in private practice in Washington, DC. His practice was focused on general civil litigation and criminal defense. Reukauf began his legal career in 1970, as an Assistant United States Attorney for the District of Columbia. In 1973 he joined the General Counsel's office of the U.S. Environmental Protection Agency, as a senior trial attorney where he prosecuted enforcement actions involving toxic chemicals in the Division of Pesticides & Toxic Substances. Mr. Reukauf received his undergraduate degree from Hamilton College in 1966 and his law degree from Georgetown University Law Center in 1969. He is the author of Regulation of Toxic Pesticides, 62 Iowa L. Rev. 909 (1976–1977).
• Scott J. Bloch (December 2003 – November 2008). On June 26, 2003, President George W. Bush nominated Bloch for the position of Special Counsel at the Office of Special Counsel. The Senate unanimously confirmed Bloch on December 9, 2003. On Jan. 5, 2004, he was sworn in to serve a five-year term. Bloch brought 17 years of experience to the Office of Special Counsel, including litigation of employment, lawyer ethics, and complex cases before state courts, federal courts and administrative tribunals. He briefed and argued cases before state and federal appellate courts. From 2001 to 2003, Bloch served as associate director and then deputy director and Counsel to the Task Force for Faith-based and Community Initiatives at the U.S. Department of Justice, where he worked on First Amendment cases, regulations, intergovernmental outreach, and programmatic initiatives. Before serving in the Justice Department, he was a partner with Stevens & Brand, LLP, of Lawrence, Kansas, where he practiced in the areas of civil rights law, employment law, and legal ethics. Bloch tried jury trials before state and federal courts, representing employees and employers in cases involving whistleblower and other retaliation claims, as well as civil rights claims. He worked on important cases that set precedents in the field of legal ethics, including a ground-breaking Texas case that changed the way plaintiffs' lawyers handle mass tort cases. Bloch served as chair of his county Bar Ethics and Grievance Committee, investigating cases of alleged breaches by attorneys of ethics rules, and making recommendations to the state Supreme Court on disciplinary action. He also served on the state board of discipline, hearing testimony and legal arguments, and making findings on appropriate discipline of attorneys. For five years, he served as an adjunct professor at the University of Kansas School of Law. Mr. Bloch earned his bachelor's and law degree from the University of Kansas, where he graduated Order of the Coif, and served on the Boards of Editors of The Kansas Law Review and The Kansas Criminal Procedure Review. He lives with his wife, Catherine, and their seven children in Alexandria, Virginia.[48]
• Elaine D. Kaplan (April 1998 – June 2003). Kaplan came to OSC with extensive experience litigating employment-related issues before federal courts and administrative tribunals. Prior to her appointment as Special Counsel by President Bill Clinton, Kaplan served as Deputy General Counsel of the National Treasury Employees Union (NTEU), where she represented the interests of 150,000 employees in the areas of civil liberties, administrative law, racial and sexual discrimination, and labor law. During her 13 years at NTEU, Kaplan briefed and argued dozens of cases at all levels of the federal courts on behalf of the union and the federal employees it represented. Many of the cases in which Kaplan participated resulted in important precedent-setting decisions including, among others, National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) (the first Supreme Court decision addressing Fourth Amendment implications of urinalysis drug-testing in the public workforce) and National Treasury Employees Union v. United States, 115 S.Ct. 1003 (1995) (which struck down on First Amendment grounds the statutory "honoraria ban" as applied to federal employees). Kaplan began her legal career in 1979 at the U.S. Department of Labor, Office of the Solicitor, where she worked as a staff attorney in the Division of Employee Benefits. In 1982, Kaplan was selected to serve on the staff of the newly created Division of Special Appellate and Supreme Court Litigation, which was established to handle the department's most significant appellate cases and all of its Supreme Court work. She subsequently held the position of staff attorney at the State and Local Legal Center, where she drafted amicus briefs on behalf of state and local governments for submission to the United States Supreme Court. Kaplan, who is a native of Brooklyn, New York, received her undergraduate degree from Binghamton University and her law degree from the Georgetown University Law Center.[49]
• William E. Reukauf, Acting (~1997 – April 1998)
• Kathleen Day Koch (December 1991 – ~1997). Prior to appointment by President George Herbert Walker Bush, Koch previously held the position of General Counsel of the Federal Labor Relations Authority from December 1988 to December 1991. In her term as General Counsel, she encouraged a heightened emphasis on conflict resolution through cooperation and dispute avoidance. She has been instrumental in creating a conflict resolution seminar program that has been utilitized by various federal agencies nationwide. Koch's entire legal career has been in public service, where she has developed expertise in federal employee and government ethics issues. Prior to her appointment to the FLRA, she served as Associate Counsel to the President. She was asked to join the White House staff while serving as Senior Attorney in the Personnel Law Division at the Commerce Department. During the significant formative period of the Merits Systems Protection Board (1979–84), Koch participated in the development of the adjudicatory agency's procedural and substantive precedents. Her government career began in 1977 when she was appointed an Honors Program attorney at the Department of Housing and Urban Development. A native of St. Louis, Missouri, Koch studied at Concordia College in Riverside, Illinois. She received her B.S. degree with honors from the University of Missouri at St. Louis in 1971, and was honored that year as a finalist in the Danforth Urban Leadership Fellow competition. Koch took her J.D. degree from the University of Chicago Law School, graduating in 1977.[50]
• Mary F. Weiseman (September 1986 – 1991). The third Special Counsel appointed by Ronald Reagan, Weiseman formerly served as Inspector General of the Small Business Administration. As Special Counsel, Wiseman focused on enforcement of the Hatch Act, which was then under review for statutory change, weakening its provisions. Wiseman's goal was to vindicate the rights of government employees to be free from direct and indirect pressure by their supervisors to engage in partisan politics both on and off the job.[51]
• Lynn R. Collins, Acting (June 1986 – September 1986). Collins had been the Deputy Special Counsel; in the next decade he served as Special Assistant to the Regional Solicitor, U.S. Department of Interior, Sacramento, California.
• K. William O'Connor (October 1982 – June 1986). The second Special Counsel appointed by President Ronald Reagan, O'Conner formerly served as Inspector General of the Community Services Administration. Prior to 1981, O'Connor had served as Special Counsel for Interagency Coordination and Staff Director of the Executive Group Staff. His duties included advising the Deputy Attorney General on policy, programs, and matters affecting the Executive Group. In 1978–80 he was Senior Trial Attorney (Prosecutor/GSA Task Force) and led teams of investigators and lawyers in grand jury investigations of fraud schemes at the General Services Administration. In 1976–78 he was Associate Justice and then Chief Justice, High Court of American Samoa. O'Connor was vice president and counsel, Association of Motion Picture and Television Producers, Inc., in 1975–76; Special Counsel, Intelligence Coordination, Department of Justice, in 1975; Deputy Assistant Attorney General, Civil Rights Division, in 1971–75; Chief, Criminal Section, Civil Rights Division, in 1970–71; assistant to the Assistant Attorney General, Civil Rights Division, in 1967–70. Previously he held various positions with the Job Corps.[52] O'Connor was graduated from the University of Virginia (B.A., 1952; LL.B., 1958). He served in the U.S. Marine Corps and was discharged in 1955 as first lieutenant.
• Alex Kozinski (June 1981 – August 1982). The first Special Counsel appointed by President Reagan, Kozinski formerly served as an attorney with the Office of Counsel to the President; previously practiced with Covington & Burling in Washington, D.C.
• Mary Eastwood, Acting (January 1980 – June 1981). A native of Wisconsin, Eastwood was graduated from the University of Wisconsin Law School in 1955 and moved to Washington, D.C., where she worked on a temporary study project for the National Academy of Sciences. She joined the Justice Department's Office of Legal Counsel in 1960, serving both as an attorney advisor and later (1969–79) as an equal opportunity advisor. The following year Eastwood became the associate special counsel for investigation in the special counsel's office of the Merit System Protection Board, which was charged with looking into allegations of illegal personnel practices in the federal government. As technical secretary to the civil and political rights committee of President Kennedy's Commission on the Status of Women (PCSW), Eastwood researched decisions involving women and the Fourteenth Amendment, and became increasingly interested in the women's movement. With Pauli Murray she wrote the highly influential article "Jane Crow and the Law: Sex Discrimination and Title VII," which appeared in the Georgetown Law Review (34, December 1965). She was very active in the formation of the National Organization for Women (NOW); a board member of Human Rights for Women (HRW), an organization formed in 1968 to help finance sex discrimination litigation and research projects on women's issues; and a member of Federally Employed Women (FEW), a group that sought an end to sex discrimination in the federal government.[53]
• H. Patrick Swygert (January 1979 – December 1979). Swygert was a recess appointment by President Jimmy Carter, under an Administration whose support for the mission of Office of Special Counsel has been critiqued as lacking.

• Title 5 of the Code of Federal Regulations

• Official website
• Office of Special Counsel in the Federal Register