Backlog of whistleblower complaints piles up

The number of civil servants who lodge allegations of waste, fraud and abuse in federal agencies is growing, and they aren't getting timely responses to their complaints.

The Office of Special Counsel, charged with reviewing whistleblower disclosures and referring them for further investigation when warranted, is faced with a rapidly increasing backlog of cases, according to statistics released Monday by Public Employees for Environmental Responsibility (PEER), a Washington-based advocacy group.

Between fiscal 2001 and fiscal 2002, the number of cases filed at OSC increased by 46 percent, from 380 to 555. This growth is partly because federal employees are now more aware of their whistleblower rights, thanks to news media coverage of several high-profile cases, said Jeff Ruch, executive director of PEER.

OSC had a backlog of 628 whistleblower allegations awaiting review at the beginning of June, data recently obtained by PEER indicates. Of those cases, more than 70 percent, or 448, were at least six months old. Roughly 13 percent, or 82 cases, were three to six months old. The remaining cases were less than three months old. These statistics are based on internal OSC documents, Ruch said.

The current backlog of disclosures is more than double the number of whistleblower cases that were pending at OSC at the end of fiscal 2001. That year, the agency left 245 whistleblower disclosures unresolved, according to its annual report to Congress. In comparison, 534 cases remained open at the end of fiscal 2002.

The Office of Special Counsel declined to comment on the reasons behind the backlog of cases, or possible remedies.

"Hundreds of federal employees risk their careers to blow the whistle, only to find that no one is home to hear it," said Ruch. "It's like dialing 911 and being put on hold."

Ruch attributed the pileup of whistleblower disclosures partly to a leadership void at OSC. Special Counsel Elaine Kaplan left the agency in June, following a five-year term during which she oversaw several high-profile investigations, including one instigated by Donald Sweeney, an Army Corps of Engineers economist whose disclosures eventually prompted the Corps to rethink the way it plans multibillion-dollar water projects.

President Bush has nominated Scott Bloch, associate director of faith-based initiatives at the Justice Department, to replace Kaplan. William Reukauf, OSC's associate special counsel for investigations and prosecution, will serve as acting head of the agency until the Senate votes on Bloch.

Bloch's lack of experience in whistleblower litigation and his "conservative record" make him a poor replacement for Kaplan, Ruch argued.

Kaplan, who now works at the Washington law firm of Bernabei and Katz, said she has no opinion on Bloch. But in general, she said she would like her successor to have a strong commitment to helping whistleblowers.

The OSC could benefit from more personnel to address the rising number of disclosures, Kaplan said. According to PEER, the agency currently has fewer than eight full-time staff members assigned to review whistleblower cases. An OSC spokesman declined to provide an exact number. Only two staff members looked over disclosures when Kaplan took over as special counsel five years ago. Now, the OSC caseload probably warrants as many as 30 employees assigned to the disclosures unit, she said.

In addition to hiring more employees, OSC staff members should spend less time deciding whether to refer disclosures for further investigation, Ruch said. To decide whether a case merits investigation, the OSC simply needs to establish that there is a probable cause for review, he said. The way that OSC "implements the statute is hyper-technical, slow and fearful," he said. "[The OSC] is afraid of ruffling feathers."

But Kaplan said the standard for referring a case for investigation is "relatively demanding," and reviewers must establish a "substantial likelihood" that the whistleblowers' accusations have merit.

"I spent a lot of time when I was [at the OSC] trying to figure out ways to get more done with fewer people," Kaplan said. The agency made some progress toward closing "trivial disclosures" quickly, she added.

William Rudman, an attorney who runs his own firm specializing in federal employment law, said he cannot "make heads or tails" of the criteria OSC uses to decide a disclosure's fate.

"It seems like a crapshoot as to whether they blow off [a case] or run with the ball," he said. "I don't know how they decide what cases to run with."

While much of the OSC's current backlog is due to understaffing, the agency would do well to establish more consistent criteria for pursuing disclosures, Rudman said. The agency might consider holding open forums with practitioners to collect input on how to resolve its problems, he added.