Powers and functions of the Office of Special Counsel

5 U.S.C. § 1212

• Title: 5 — Government Organization and Employees
• Chapter: SUBCHAPTER II—OFFICE OF SPECIAL COUNSEL

Text

(a) The Office of Special Counsel shall—
(1) in accordance with section 1214(a) and other applicable provisions of this subchapter, protect employees, former employees, and applicants for employment from prohibited personnel practices;
(2) receive and investigate allegations of prohibited personnel practices, and, where appropriate—
(A) bring petitions for stays, and petitions for corrective action, under section 1214; and
(B) file a complaint or make recommendations for disciplinary action under section 1215;
(3) receive, review, and, where appropriate, forward to the Attorney General or an agency head under section 1213, disclosures of violations of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;
(4) review rules and regulations issued by the Director of the Office of Personnel Management in carrying out functions under section 1103 and, where the Special Counsel finds that any such rule or regulation would, on its face or as implemented, require the commission of a prohibited personnel practice, file a written complaint with the Board; and
(5) investigate and, where appropriate, bring actions concerning allegations of violations of other laws within the jurisdiction of the Office of Special Counsel (as referred to in section 1216).
(b)(1) The Special Counsel and any employee of the Office of Special Counsel designated by the Special Counsel may administer oaths, examine witnesses, take depositions, and receive evidence.
(2) The Special Counsel may—
(A) issue subpoenas; and
(B) order the taking of depositions and order responses to written interrogatories;
in the same manner as provided under section 1204.
(3)(A) In the case of contumacy or failure to obey a subpoena issued under paragraph (2)(A), the Special Counsel may apply to the Merit Systems Protection Board to enforce the subpoena in court pursuant to section 1204(c).
(B) A subpoena under paragraph (2)(A) may, in the case of any individual outside the territorial jurisdiction of any court of the United States, be served in the manner referred to in subsection (d) of section 1204, and the United States District Court for the District of Columbia may, with respect to any such individual, compel compliance in accordance with such subsection.
(4) Witnesses (whether appearing voluntarily or under subpoena) shall be paid the same fee and mileage allowances which are paid subpoenaed witnesses in the courts of the United States.
(5)(A) Except as provided in subparagraph (B), the Special Counsel, in carrying out this subchapter, is authorized to—
(i) have timely access to all records, data, reports, audits, reviews, documents, papers, recommendations, or other material available to the applicable agency that relate to an investigation, review, or inquiry conducted under—
(I) section 1213, 1214, 1215, or 1216 of this title; or
(II) section 4324(a) of title 38;
(ii) request from any agency the information or assistance that may be necessary for the Special Counsel to carry out the duties and responsibilities of the Special Counsel under this subchapter; and
(iii) require, during an investigation, review, or inquiry of an agency, the agency to provide to the Special Counsel any record or other information that relates to an investigation, review, or inquiry conducted under—
(I) section 1213, 1214, 1215, or 1216 of this title; or
(II) section 4324(a) of title 38.
(B)(i) The authorization of the Special Counsel under subparagraph (A) shall not apply with respect to any entity that is an element of the intelligence community, as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 3003), unless the Special Counsel is investigating, or otherwise carrying out activities relating to the enforcement of, an action under subchapter III of chapter 73.
(ii) An Inspector General may withhold from the Special Counsel material described in subparagraph (A) if the Inspector General determines that the material contains information derived from, or pertaining to, intelligence activities.
(iii) The Attorney General or an Inspector General may withhold from the Special Counsel material described in subparagraph (A) if—
(I)(aa) disclosing the material could reasonably be expected to interfere with a criminal investigation or prosecution that is ongoing as of the date on which the Special Counsel submits a request for the material; or
(bb) the material—
(AA) may not be disclosed pursuant to a court order; or
(BB) has been filed under seal under section 3730 of title 31; and
(II) the Attorney General or the Inspector General, as applicable, submits to the Special Counsel a written report that describes—
(aa) the material being withheld; and
(bb) the reason that the material is being withheld.
(C)(i) A claim of common law privilege by an agency, or an officer or employee of an agency, shall not prevent the Special Counsel from obtaining any material described in subparagraph (A)(i) with respect to the agency.
(ii) The submission of material described in subparagraph (A)(i) by an agency to the Special Counsel may not be deemed to waive any assertion of privilege by the agency against a non-Federal entity or against an individual in any other proceeding.
(iii) With respect to any record or other information made available to the Special Counsel by an agency under subparagraph (A), the Special Counsel may only disclose the record or information for a purpose that is in furtherance of any authority provided to the Special Counsel under this subchapter.
(6) The Special Counsel shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on Oversight and Government Reform of the House of Representatives, and each committee of Congress with jurisdiction over the applicable agency a report regarding any case of contumacy or failure to comply with a request submitted by the Special Counsel under paragraph (5)(A).
(c)(1) Except as provided in paragraph (2), the Special Counsel may as a matter of right intervene or otherwise participate in any proceeding before the Merit Systems Protection Board, except that the Special Counsel shall comply with the rules of the Board.
(2) The Special Counsel may not intervene in an action brought by an individual under section 1221, or in an appeal brought by an individual under section 7701, without the consent of such individual.
(d)(1) The Special Counsel may appoint the legal, administrative, and support personnel necessary to perform the functions of the Special Counsel.
(2) Any appointment made under this subsection shall be made in accordance with the provisions of this title, except that such appointment shall not be subject to the approval or supervision of the Office of Personnel Management or the Executive Office of the President (other than approval required under section 3324 or subchapter VIII of chapter 33).
(e) The Special Counsel may prescribe such regulations as may be necessary to perform the functions of the Special Counsel. Such regulations shall be published in the Federal Register.
(f) The Special Counsel may not issue any advisory opinion concerning any law, rule, or regulation (other than an advisory opinion concerning chapter 15 or subchapter III of chapter 73).
(g)(1) The Special Counsel may not respond to any inquiry or disclose any information from or about any person making an allegation under section 1214(a), except in accordance with the provisions of section 552a of title 5, United States Code, or as required by any other applicable Federal law.
(2) Notwithstanding the exception under paragraph (1), the Special Counsel may not respond to any inquiry concerning an evaluation of the work performance, ability, aptitude, general qualifications, character, loyalty, or suitability for any personnel action of any person described in paragraph (1)—
(A) unless the consent of the individual as to whom the information pertains is obtained in advance; or
(B) except upon request of an agency which requires such information in order to make a determination concerning an individual's having access to the information unauthorized disclosure of which could be expected to cause exceptionally grave damage to the national security.
(h)(1) The Special Counsel is authorized to appear as amicus curiae in any action brought in a court of the United States related to section 2302(b)(8) or (9), or as otherwise authorized by law. In any such action, the Special Counsel is authorized to present the views of the Special Counsel with respect to compliance with section 2302(b)(8) or (9) and the impact court decisions would have on the enforcement of such provisions of law.
(2) A court of the United States shall grant the application of the Special Counsel to appear in any such action for the purposes described under subsection (a).
(i) The Special Counsel shall enter into at least 1 agreement with the Inspector General of an agency under which—
(1) the Inspector General shall—
(A) receive, review, and investigate allegations of prohibited personnel practices or wrongdoing filed by employees of the Office of Special Counsel; and
(B) develop a method for an employee of the Office of Special Counsel to communicate directly with the Inspector General; and
(2) the Special Counsel—
(A) may not require an employee of the Office of Special Counsel to seek authorization or approval before directly contacting the Inspector General in accordance with the agreement; and
(B) may reimburse the Inspector General for services provided under the agreement.

History

(Added Pub. L. 101–12, §3(a)(13), Apr. 10, 1989, 103 Stat. 19; amended Pub. L. 103–424, §3(b), Oct. 29, 1994, 108 Stat. 4362; Pub. L. 112–199, title I, §113, Nov. 27, 2012, 126 Stat. 1472; Pub. L. 115–91, div. A, title X, §1097(a), (g), Dec. 12, 2017, 131 Stat. 1615, 1623.)

Editorial Notes

Editorial Notes

Amendments
2017—Subsec. (b)(5), (6). Pub. L. 115–91, §1097(a), added pars. (5) and (6).
Subsec. (i). Pub. L. 115–91, §1097(g), added subsec. (i).
2012—Subsec. (h). Pub. L. 112–199 added subsec. (h).
1994—Subsec. (g)(1). Pub. L. 103–424, §3(b)(1) substituted "disclose any information from or about" for "provide information concerning".
Subsec. (g)(2). Pub. L. 103–424, §3(b)(2), substituted "an evaluation of the work performance, ability, aptitude, general qualifications, character, loyalty, or suitability for any personnel action of any" for "a matter described in subparagraph (A) or (B) of section 2302(b)(2) in connection with a".

Statutory Notes and Related Subsidiaries

Change of Name
Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.

Effective Date of 2012 Amendment
Amendment by Pub. L. 112–199 effective 30 days after Nov. 27, 2012, see section 202 of Pub. L. 112–199, set out as a note under section 1204 of this title.

Regulations
Pub. L. 115–91, div. A, title X, §1097(m), Dec. 12, 2017, 131 Stat. 1626, provided that:
"(1) In general.—Not later than 2 years after the date of enactment of this Act [Dec. 12, 2017], the Special Counsel shall prescribe such regulations as may be necessary to perform—
"(A) the functions of the Special Counsel under subchapter II of chapter 12 of title 5, United States Code, including regulations that are necessary to carry out sections 1213, 1214, and 1215 of that title; and
"(B) any functions of the Special Counsel that are required because of the amendments made by this section [enacting section 7515 of this title, amending this section and sections 1212 to 1214, 1217 to 1219, 1221, 2302, 4301, 4302, 4313, 4505a, 5755, and 7326 of this title and sections 3657 and 3673 of Title 22, Foreign Relations and Intercourse, repealing section 2307 of this title and former section 7515 of this title, enacting provisions set out as notes under this section and sections 4302, 5509, 7326, and 7503 of this title, and amending provisions set out as notes under this section and sections 2302 and 5509 of this title].
"(2) Publication.—Any regulations prescribed under paragraph (1) shall be published in the Federal Register."

Suicide by Employees
Pub. L. 115–73, title I, §105, Oct. 26, 2017, 131 Stat. 1238, as amended by Pub. L. 115–91, div. A, title X, §1097(l), Dec. 12, 2017, 131 Stat. 1626, provided that:
"(a) Referral.—The head of an agency shall refer to the Special Counsel, along with any information known to the agency regarding the circumstances described in paragraphs (2) and (3), any instance in which the head of the agency has credible information indicating—
"(1) an employee of the agency committed suicide;
"(2) prior to the death of the employee, the employee made any disclosure of information which reasonably evidences—
"(A) any violation of any law, rule, or regulation; or
"(B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; and
"(3) after a disclosure described in paragraph (2), a personnel action was taken against the employee.
"(b) Office of Special Counsel Review.—For any referral to the Special Counsel under subsection (a), the Special Counsel shall—
"(1) examine whether any personnel action was taken because of any disclosure of information described in subsection (a)(2); and
"(2) take any action the Special Counsel determines appropriate under subchapter II of chapter 12 of title 5, United States Code.
"(c) Permission of Next of Kin.—The head of the agency shall only make a referral under subsection (a) regarding an employee after receiving written permission from the next of kin, as such term is defined in section 6381 of title 5, United States Code, of the employee."
[For definitions of "agency", "employee", and "personnel action" as used in section 105 of Pub. L. 115–73, set out above, see section 101 of Pub. L. 115–73, set out below.]

Policy Statement Regarding Implementation of Whistleblower Protection Act
Pub. L. 103–424, §12(a), Oct. 29, 1994, 108 Stat. 4366, provided that: "No later than 6 months after the date of enactment of this Act [Oct. 29, 1994], the Special Counsel shall issue a policy statement regarding the implementation of the Whistleblower Protection Act of 1989 [see Short Title of 1989 Amendment note set out under section 1201 of this title]. Such policy statement shall be made available to each person alleging a prohibited personnel practice described under section 2302(b)(8) of title 5, United States Code, and shall include detailed guidelines identifying specific categories of information that may (or may not) be communicated to agency officials for an investigative purpose, or for the purpose of obtaining corrective action under section 1214 of title 5, United States Code, or disciplinary action under section 1215 of such title, the circumstances under which such information is likely to be disclosed, and whether or not the consent of any person is required in advance of any such communication."

Annual Survey of Individuals Seeking Assistance
Pub. L. 103–424, §13, Oct. 29, 1994, 108 Stat. 4367, provided that:
"(a) In General.—The Office of Special Counsel shall, after consulting with the Office of Policy and Evaluation of the Merit Systems Protection Board, conduct an annual survey of all individuals who contact the Office of Special Counsel for assistance. The survey shall—
"(1) determine if the individual seeking assistance was fully apprised of their rights;
"(2) determine whether the individual was successful either at the Office of Special Counsel or the Merit Systems Protection Board; and
"(3) determine if the individual, whether successful or not, was satisfied with the treatment received from the Office of Special Counsel.
"(b) Report.—The results of the survey conducted under subsection (a) shall be published in the annual report of the Office of Special Counsel."

Definitions
Pub. L. 115–73, title I, §101, Oct. 26, 2017, 131 Stat. 1235, provided that: "In this title [enacting sections 2307 and 7515 of this title, amending sections 1214, 1221, 2302, 4505a, and 5755 of this title and sections 3657 and 3673 of Title 22, Foreign Relations and Intercourse, enacting provisions set out as notes under this section and section 2301 of this title, and amending provisions set out as a note under section 2302 of this title]—
"(1) the term 'agency'—
"(A) except as provided in subparagraph (B), means an entity that is an agency, as defined under section 2302 of title 5, United States Code, without regard to whether one or more portions of title 5 of the United States Code are inapplicable to the entity; and
"(B) does not include any entity that is an element of the intelligence community, as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 3003(4));
"(2) the term 'employee' means an employee (as defined in section 2105 of title 5, United States Code) of an agency; and
"(3) the term 'personnel action' has the meaning given that term under section 2302 of title 5, United States Code."