OSC Seal

 U.S. Office of Special Counsel
 1730 M Street, N.W., Suite 201
 Washington, D.C. 20036-4505


(202) 653-7984               

    The U.S. Office of Special Counsel (OSC) today announced the resolution of two prohibited personnel practice complaints filed by employees of the former Immigration and Naturalization Service (INS) regarding that agency’s merit promotion process. In response to a report submitted by OSC, the INS changed its merit promotion policy, effective June 20, 2003, to come into compliance with federal law and regulation.

    In their complaints, two INS employees alleged that INS was violating federal regulation and committing a prohibited personnel practice because it did not consider employees’ performance evaluations when making merit promotion decisions. Pursuant to 5 U.S.C. § 2302(b)(12), agency officials with personnel action authority may not take or fail to take personnel actions if doing so violates any law, rule, or regulation that implements or directly concerns the merit system principles defined in 5 U.S.C. § 2301. 

    OSC concluded that INS’s merit promotion policy, which did not call for the consideration of employees’ performance evaluations at any point during the promotion process, violated 5 U.S.C. § 2302(b)(12). Specifically, by taking and failing to take personnel actions (i.e., promotions) without considering performance evaluations, INS was violating a federal regulation that requires agencies to give “due weight” to employees’ performance evaluations when determining which candidates are “best qualified” for promotion. OSC further concluded that this regulation implements or directly concerns two merit system principles which provide that advancement in the government should be determined solely on the basis of ability, knowledge, and skills, and on demonstrated performance.

    OSC reported its conclusions to the INS in a Report of Prohibited Personnel Practice. INS promptly modified its Merit Promotion and Reassignment Plan so that employees’ performance evaluations will now be used during the merit promotion process by human resource and selecting officials as a tool for determining the quality of an employee’s experience and overall qualifications for promotion.

    OSC appreciates INS’s cooperation in resolving these cases. INS’s actions reflect its commitment to advancing its employees based on merit and demonstrated performance, and to upholding the ideals of the government’s merit system of employment. 

    The U.S. Office of Special Counsel is an independent federal agency that investigates and prosecutes complaints alleging the commission of prohibited personnel practices, including retaliation for whistleblowing. Pursuant to statute, OSC, acting on behalf of victims of prohibited personnel practices, has authority to seek voluntary corrective action from federal agencies or through administrative litigation before the U.S. Merit Systems Protection Board.