The Office of Special Counsel has intervened in a whistleblower-related case before the MSPB to argue in favor of a broad reading of federal employee protections against retaliation.

The case before the merit board involves a DHS employee who asserts he suffered reprisal for making disclosures about the conduct of co-workers. A hearing officer ruled that he was not protected on grounds that he did not exhaust his “administrative remedies” because he had not provided comments in response to a preliminary determination letter from the OSC.

The OSC argues that under the law, “providing comments in response to OSC’s preliminary determination is optional, not required. OSC also argues in its brief that requiring complainants to respond to OSC’s preliminary determination letters would impose additional burdens on complainants and diminish OSC’s administrative efficiency,” a summary by that agency says.

It is the third whistleblower case this year in which the OSC has filed briefs before the merit board. One also involved procedures under the Whistleblower Protection Act and the other involved whether personal motivation should play a role in whether a disclosure is protected.

With just one of its three seats currently filled, the MSPB is unable to make rulings on those matters, leaving the issues to be decided after at least one more member is nominated and confirmed.