Critiques of the Judiciary
SEVENTH AMENDMENT VIOLATIONS
CHARLES W. HECKMAN
August 2, 2012
For many years, Congress has acknowledged the fact that whistleblowers employed by the federal government have no recourse against reprisal that is taken against them. Finally, in 2012, the Senate passed the Whistleblower Protection Enhancement Act by a unanimous vote, and the House passed its own version of the bill shortly before Congress went out of session. The House and Senate bills had to be coordinated so that they could become one law, but the final product was far less than satisfactory. While no member of Congress publicly alleges that whistleblowers should not be protected, there is an extreme bias against people who point out illegal or improper acts of senior agency personnel, and some very sneaky actions are taken behind the scenes in Congress to water down every new bill designed to protect whistleblowers and to assure that the statutory protections remain totally ineffective. The name of the bill itself was misleading because nobody can enhance something that does not exist, and before and after the bill became law, whistleblowers remained fully unprotected. The problems faced by whistleblowers in the private sector are bad enough, but they are relatively minor compared with those in the federal civil service.
Whistleblowers employed by the United States government are people whose
In fact, the House of Representatives passed a bill allegedly to improve whistleblower protection more than five years ago with a veto-proof majority, but the Senate failed to pass a matching bill. By December, 2010, both the House and Senate had passed such a bill, but the Senate failed to coordinate its version with that of the House before Congress went out of session; thus it did not become law. One unidentified senator secretly blocked the vote. Obviously, Congress wants to convince the public that whistleblowers will be protected from reprisal, but it does not seem to want any changes in the law. The most of important of the changes would be the addition of a statute that would allow whistleblowers to take their complaints to a real court and have them reviewed by a real jury. This is already a Constitutional right, but one to which nobody seems to pay attention anymore.
To see how the present fraudulent system functions, attention must be focused on several federal administrative agencies, which seem to exist just for the purpose of violating the Constitutional right to have a civil lawsuit involving a sum of money greater than $20 heard by a jury of peers. This right is clearly defined in Amendment VII of the United States Constitution, and there are no ifs, ands, or buts concerning the application of this fundamental law to all civil lawsuits, unless all litigants agree to allow a judge alone to make the decision.
The groups targeted for destruction by Congress's failure to protect their Seventh Amendment rights include whistleblowers in the federal civil service and veterans with rights to preference in public employment and protection from the government against employment discrimination because of previous, honorable military service.
If either a whistleblower or a veteran files a complaint establishing his or her right to protection under either the Whistleblower Protection Act (WPA), the Uniformed Services Employment and Reemployment Rights Act (USERRA) or the Veterans Employment Opportunities Act (VEOA), the federal agency has the burden of proof and must show that any negative action taken against the complainant was justified and would have been taken against him or her even if they had not made a report protected by the WPA and was not a war veteran.
An important difference between the WPA and the two veterans' laws is that the employer must provide "clear and convincing evidence" to prevail in a WPA complaint but only a preponderance of evidence under the veterans' laws. Clear and convincing evidence is the highest standard of proof in a civil case, while 51% of the evidence favoring the agency against 49% favoring the veteran is sufficient to establish a preponderance of evidence for the agency.
Because only the laws governing the federal civil service will be discussed here, the procedures foreseen by Congress can be presented in outline form. The law demands that whistleblowers take their cases first to the Office of Special Counsel (OSC), which can theoretically pressure the agency to comply with the law and is permitted to represent the whistleblower before the Merit System Protection Board (MSPB). If it dismisses the complaint from the whistleblower or does nothing for at least 60 days, the matter can be filed as an appeal before the MSPB. Initial decisions by the MSPB can be reviewed by the full Board in Washington, D.C., and the final decisions can then be reviewed by the United States Court of Appeals for the Federal Circuit. If the United States Supreme Court agrees to review a decision by the Federal Circuit Court, it can do so. Otherwise, the final decision rests with that appeals court. Notice the absence of a jury anywhere in the proceedings. This means that tens of thousands of whistleblowers have had another Constitutional right taken away by Congress without reason or explanation!
Veterans face a similar situation. If they are discriminated against in public employment, they are theoretically protected by the Uniformed Services Employment and Reemployment Rights Act (USERRA). If an agency breaks any law, rule or regulation providing them with any preference, they are protected by the Veterans Employment Opportunities Act (VEOA). In either case, a complaint must first be filed with the Veterans Employment and Training Service (VETS), an agency of the United States Department of Labor that is supposed to investigate the complaint and provide corrective action, if necessary.
The veteran should also file a complaint with the U.S. Office of Special Counsel when a violation of USERRA is cited. The Special Counsel and VETS may use each other's investigation results pursuant to USERRA as a basis for their decisions whether or not to take further action. However, these corrupt agencies go a step further.
My complaints concerning 57 fraudulent selections by the U.S. Department of the Interior were filed with the Special Counsel pursuant to the WPA and USERRA and with VETS pursuant to USERRA and VEOA. Patrick Harvey of VETS investigated and found only one violation of USERRA and did not even mention VEOA in his letter dismissing my complaint, which the MSPB later complained was left undated. The Special Counsel did not investigate my complaint at all on the grounds that it was already being investigated by VETS, and dismissed the complaints because VETS had dismissed them. The legal problem is that VETS has neither the jurisdiction nor the competence to investigate a whistleblower complaint. Therefore, the Special Counsel had completely failed to perform its statutory duty to investigate complaints filed by whistleblowers. Later, the MSPB overturned and dismissed an initial decision by one of its administrative judges, ruling that the corrective action imposed by VETS on the Department of the Interior for the one violation it had substantiated was inappropriate and inadequate, and it dismissed all parts of the decision concerning VEOA because the VETS investigator had never mentioned this statute in his report dismissing my complaints. The MSPB noted that I had demanded an investigation pursuant to VEOA in each of my complaints but that VETS did not take enough time with its investigation to adequately obtain sufficient information to determine the validity of the VEOA complaints. After this decision was rendered, however, VETS could not be persuaded to complete its investigations.
If VETS investigates the complaints and dismisses them or takes no action for at least 60 days, the veteran may file a complaint with the MSPB. The MSPB insisted from 1994 to 2011 that it had jurisdiction over USERRA complaints only if the veteran could prove that the adverse action taken against him was based upon animosity against veterans by the person making the decision to take the action. Obviously, it is clear that proof of this animosity can be obtained only by a certified mind-reader if the decision-maker denies it.
Having had four appeals before the MSPB, requiring me to study the case law intensively, I can say that the agencies charged with providing justice to aggrieved whistleblowers and veterans operate under unique rules that are different from and often in direct contradiction to the stated intent of Congress when it passed the WPA, USERRA, and VEOA. Ignoring the fraud, perjury, obstruction of justice, and other felonies committed by federal employees during my appeals, it is possible to identify basic operating procedures for the agencies assigned the duty of protecting whistleblowers and veterans. These procedures are used to keep investigators, lawyers, and administrative judges in the good graces of their fellow civil servants in the Executive Branch, enabling them to pursue financially successful careers in government after their tenure as "neutral defenders of the law" in employment disputes between federal agencies and aggrieved veterans and whistleblowers is completed.
The first and foremost rules are that no civil servant should ever be found to have committed any discriminatory act against any war veteran for any reason, and no federal employee ever retaliated in any way against a fellow civil servant or applicant for civil service employment for having reported an illegal act, gross waste, endangerment of public health or safety, or mismanagement. A direct violation of the law which cannot be overlooked may be reported only as a result of a minor clerical mistake or a misunderstanding. The reason for this is obvious. Our politicians do not want it ever to become part of a public record that a civil servant tried to keep a veteran out of his agency or that he tried to deny a veteran his earned right to preference in public employment. Such a finding could severely hurt recruitment and reduce our government's ability to engage in foreign wars.
Similarly, our politicians do not want the public to know that any federal supervisor was guilty of taking reprisal of any kind against a subordinate who reported something that he did not want known or did not want others to know that he knew about. If a project goes wrong, the person in charge can always say that he was acting on the best information available, as long as a subordinate never directly told him that his information was incorrect. Only illegal actions, dangerous practices, and gross waste that a senior civil servant knows about can bring him a reprimand, so subordinates who learn that anything is wrong must keep their mouths shut about it.
Other rules for conducting investigations and administrative adjudication of complaints filed by whistleblowers and veterans include seeing to it that a whistleblower or veteran can never receive any meaningful compensation for the wrongs done to him or her. Even if he technically wins a dispute with a federal agency, the MSPB has found a large number of ways to make his victory completely hollow. These include failure of the MSPB to enforce its own orders, allowing the agency to take reprisal again, and delaying the proceedings so long that the whistleblower will lose track of the innovations of his field of endeavor or even die after years of waiting for his complaint to be adjudicated.
Another rule for the adjudication of complaints is to act swiftly enough to prevent an aggrieved federal employee from presenting key pieces of evidence. Because federal agencies are required to provide clear and convincing evidence that their reprisal against a whistleblower was justified regardless of his protected disclosure, an administrative judge has to work harder to provide justification of the agency's action if the MSPB is determined to have jurisdiction over the appeal. The easiest way for an administrative judge to quickly dismiss a whistleblower's complaint is to declare that the person who took reprisal against the whistleblower did not know about the disclosure at the time he made his adverse personnel decisions. My own experience has demonstrated to me that agencies communicate freely off the record to make sure that no blacklisted person gets another civil service job. However, the whistleblower is required to provide strong evidence that anyone who took reprisal against him knew all of the details of his whistleblowing before he took reprisal against him.
Before any lawsuit or administrative appeal is heard, a process of discovery must be completed. Theoretically, this should secure the release of all records showing communications between agency personnel and between agencies concerning the whistleblower's actions. Of course, in practice, the use of the telephone permits communication without any record being made, just as private conversations permit persons to be blacklisted. In addition, I have noted that specific questions are used when checking references to find out if a certain person should be blacklisted, and these include "Would you hire this person again?" The use of this question is listed as a prohibited personnel practice in the Merit System Protection Act. See 5 U.S.C. §2302 (b)(2), which prohibits any question that does not pertain to:
"A) an evaluation of the work performance, ability, aptitude, or general qualifications of such individual;" or
Because this prohibited personnel practice also violates several other laws, federal employees might not want to answer it. Therefore, it is the practice for someone providing a reference for a whistleblower simply to keep silent when it is asked. In one case I have on record, the question was asked last, and the other person simply kept silent. The person who asked it said, "thank you," and ended the conversation. The employment selection for which the questioner was responsible was promptly cancelled without anyone being hired, and a new selection was held several months later to fill the same position. The State of Washington Department of Ecology had a form for questioning persons giving them references about a candidate for employment, and the last question on the form was, "Would you hire this person again?" Apparently, both federal and state agencies have a well established system of informing each other about employees who blow whistles, or who showed themselves to be inferior to others by wearing the uniform of their country, by not answering specific questions that are prohibited by civil service laws.
If there are actually records showing that the person responsible for taking reprisal against a whistleblower actually knew about the protected disclosure, then it is difficult, but not impossible, to dismiss the whistleblower's appeal for lack of jurisdiction. One of my own appeals was split by the MSPB into two separate appeals against precisely the same selections by the U.S. Department of the Interior. One appeal was filed pursuant to the Whistleblower Protection Act, and the other pursuant to veterans' laws. Because both a desire to keep veterans out of the agency and reprisal against me for making an earlier complaint against the U.S. Department of Agriculture were obviously factors in the selection, splitting the appeal served to weaken the impact of the evidence. Disposing of the whistleblower complaint was also vital for the administrative judge to make a convincing case in favor of the Department of the Interior, which had already accumulated a file of about 35 hiring certificates on which my name appeared with the highest examination score, including many to which no veterans' preference points had been added.
To prevail in a whistleblower appeal, an agency is supposed to provide clear and convincing evidence to support its case, and the Department of the Interior had no evidence at all to justify its hiring decisions. No university or research institute would consider hiring a scientist at the level of the vacancies being filled through the selections unless he had a doctoral degree, years of post-graduate experience performing and supervising high quality research, and many publications of the results in refereed scientific journals. The majority of the persons hired none of whom were preference-eligible veterans had not even earned a master's degree, and the majority had never authored a scientific publication.
After hearings for both appeals were completed, the following situation had been demonstrated. In 1997, two employees of the U.S. Forest Service, an agency of the U.S. Department of Agriculture, offered me $20,000 to withdraw from a civil service selection in Alaska. The offer was made because I am a veteran of the Vietnam War who was better qualified then the person the agency wanted to hire. Passing me over would have been a violation of the law. Because certain Forest Service personnel did not want to appoint a veteran to a research position, I was told that I would not be hired. However, I would be paid $10,000 per year for two years if I would withdraw from the selection. If I did not withdraw, the selection would be cancelled, and a pre-selected applicant would be hired on a temporary basis without a formal selection.
The U.S. Office of Special Counsel confirmed my report, and it insisted that the U.S. Forest Service provide me with a job equivalent to the one I was being denied in Alaska. I was officially hired in May, 1998, and assigned to Olympia, Washington. My agency was the Pacific Northwest Research Station of the Forest Service. At his first opportunity, the Director of the Pacific Northwest Research Station, Thomas Mills, hired Deanna Stouder from the U.S. Department of the Interior in Ohio because of her experience at firing scientists for her employer. She cancelled the purchase of equipment I needed for my work and convinced my supervisor, Peter Bisson, to change the satisfactory performance report for the probationary year, which he had written for me, to unsatisfactory and had me dismissed one working day before the end of the probationary year. The only accurate criticism of my work was that I had resisted changing a report showing that a project the laboratory was paying more than $208,000 to conduct had been planned in such a deficient manner that it could not successfully produce a valid method of surveying forest streams. An analysis of this report by the administrative judge for the MSPB field office in Seattle, Sidney Farcy, resulted in his grudging admission that this report was another disclosure of gross waste protected by the Whistleblower Protection Act. However, he said that the project had "grail-like significance" for the Forest Service. In a paper published in 2003, the university professor who had been given the money to conduct the research admitted that the method he developed with the money was "inconclusive." In layman's terms, that means that it did not work.
After the station director responsible for these activities of the Forest Service, Thomas Mills, received a promotion and was transferred to Washington, D.C., Robert Szaro, became the acting director of the Pacific Northwest Research Station. He was responsible for doing whatever was necessary to protect the Forest Service employees from consequences for violating the Whistleblower Protection Act and maintaining their policy of violating the veterans' preference laws during the four years of my appeals.
In 2003, I began filing applications for announced vacancies with the U.S. Geological Survey, an agency of the U.S. Department of the Interior. After I received the highest examination score for a vacancy at Fort Collins, Colorado, the selecting official, Bob Stuart, phoned Peter Bisson to ask for a reference. Bisson let him know that I should be blacklisted by keeping silent when asked whether he would hire me again. Stuart cancelled the selection without hiring anyone. When the vacancy was re-announced several months later, someone changed my first response on the electronically submitted examination to lower my score from 100% to 98.64%, and my place on the list from first to fifth.
Shortly later, Robert Szaro left his position as Acting Director of the Pacific Northwest Research Station of the U.S. Department of Agriculture and went to work for the U.S. Department of the Interior, where he personally denied me at least six jobs for which my examination score had been highest. Communication with other hiring officials of the Interior Department would be assumed by any reasonable person and would explain why I was not hired for any of the many other vacancies for which my examination score had been the overall highest.
To dismiss my appeal against the U.S. Department of the Interior pursuant to the Whistleblower Protection Act, which I filed in 2005, Administrative Judge Amy Dunning quickly announced a hearing to determine jurisdiction. The hearing was scheduled before any of the hearings pursuant to veterans' laws, and before any of the details just described had been documented. Counsel for the Interior Department did not send one document that I demanded during discovery, and she provided the responses to all interrogatories in her own words, paraphrasing what she alleged the parties questioned had told her. Nothing was provided by the agency witnesses under oath. After I filed a motion to compel discovery, Amy Dunning denied it for reasons that were obviously false or misleading. At one point, she alleged that the documents had been demanded after expiration of the 20-day period she had set for initiating discovery, although the first request had been received by the agency 12 days after discovery schedule had been provided, and 8 days before the first discovery request had to be made. She next stated that the motion had been denied because I had not provided her with copies of the documents already sent to me by the agency, although at the time I filed my motion, not one single document had been sent. Thus, although it could be assumed that my status as a whistleblower was already known to almost every person at the Department of the Interior who had rejected an employment application from me, all documentation of this had been kept from the file by the joint efforts of the counsel for the Department of the Interior and the administrative judge for the MSPB. Only a few weeks later, I received a transcript of the telephone conversation between Bob Stuart and Peter Bisson through a Freedom of Information Act request to the U.S. Department of Agriculture. The role of Robert Szaro was fully revealed about a year later at the hearing for my appeal of the same selections pursuant to veterans' laws.
One of the last questions I asked him as cross examination was being concluded was whether Deanna Stouder had been hired by the Department of Agriculture just to build a case for firing me. He answered by saying that no other scientist had ever been fired by that agency before, indicating that she had been employed for nine months at the salary of GS-15 or higher just to build a false case to eliminate a whistleblower and war veteran. This gives a clear picture of the high priority the people running the civil service give to eliminating whistleblowers and veterans. It also reveals the reasons that 100% of the cases heard by the MSPB pursuant to whistleblower and veterans' laws are decided in favor of corrupt agencies. Clearly, the Founding Fathers of the United States were extremely wise when they added the Seventh Amendment to the Constitution. It would be almost impossible to find a jury of 12 ordinary citizens who would decide a single case similar to the way the MSPB decides them all.
Before any appeal can be filed with the MSPB pursuant to USERRA or VEOA, a complaint must be filed with the Veterans Employment and Training Service (VETS). This is simply another obstacle established by Congress to delay adjudication of veterans' complaints. The United States Department of Labor has been the most grossly malfeasant department of the Executive Branch in its handling of veterans' complaints. Every veteran who returns from war sound in body and mind can be harmed far more by the Labor Department than by the Department of Veterans Affairs. A veteran promptly placed in a good job might go through the rest of his life without ever filing an application for a benefit from the Department of Veterans Affairs, except, perhaps, for his education allowance. Yet the chance to adequately support a family is exactly what hundreds of thousands of veterans have been prevented from doing since the Vietnam War, and the stubborn denial of this opportunity can be considered an attempt at murder, which has already been successful several hundred thousand times.
While VETS is responsible for investigating complaints by veterans of discrimination in the United States civil service, the Office of Federal Contract Control Programs (OFCCP) is assigned the duty of eliminating discrimination against veterans by private employers holding federal contracts worth more than a sum prescribed by Congress, a sum that has steadily increased during recent years from $10,000 to $100,000 per annum. The Secretary of Labor has the duty under the law to take appropriate action if veterans are discriminated against, including cancelling payments for the contracts and filing lawsuits in behalf of the aggrieved veterans. It is notable that, since the 1970s, when the Secretary of Labor was first assigned these duties, no effective action has ever been taken on behalf of a veteran to prevent employment discrimination. The actions that have been taken involve little more than printing "Hire a vet!" on stationery.
The malfeasance of the Department of Labor has been a root cause of the homelessness of massive numbers of veterans over the years since the Vietnam War, and enough deaths have occurred due to the effects of extreme poverty to warrant an accusation of mass murder as overseen by the United States Department of Labor.
The U.S. Office of Special Counsel has not done its job any better. A Freedom of Information Act request brought me the information that, between one and
The Special Counsel has done an even worse job in handling complaints from whistleblowers. It has not even pretended to have settled a complaint favorably for a whistleblower, and it does not do anything but delay further adjudication. The delay increases the time whistleblowers can be forced to remain jobless, work for reduced wages, suffer harassment, or lose their chances for finding other employment through blacklisting.
After overcoming all of the useless and counterproductive administrative hurdles created by Congress at great cost to the taxpayers, aggrieved veterans and whistleblowers can finally file an appeal with the Merit System Protection Board (MSPB). Like the other agencies that handled the complaints initially, the MSPB handles its duties in a fully fraudulent manner. After tens of thousands of appeals, no clear decision has ever been rendered by that agency indicating that a civil servant discriminated against a veteran because of his military service. Only minor, unintentional clerical errors have ever been acknowledged, and even those findings were extremely rare. In addition, no whistleblower has ever been found to have been retaliated against in any manner, something that might suggest to Congress that nobody has ever blown a whistle about anything, or that no reprisal against a whistleblower has ever been taken. If these decisions are accepted at face value, it could be concluded that Congress has been wasting hundreds of millions of dollars over the years to solve a problem that does not even exist.
The United States Court of Appeals for the Federal Circuit is the only court in the United States authorized to review the decisions by the Merit System Protection Board. According to groups that watch over whistleblower cases, this court has ruled 3 times in favor of whistleblowers in a total of 210 decisions between 1994 and 2011. However, when the court rules in favor of a whistleblower, it does not mean that the whistleblower receives any compensation. It just means that the matter is remanded to the MSPB for further action. This usually means that the MSPB will do nothing for one to two years before it gets another chance to look for a reason for ruling in favor of the agency and against the whistleblower. A decision by the Federal Circuit judges against the MSPB is simply a warning that its administrative judges are becoming so sloppy in its fraudulent handling of whistleblower appeals that the public might get the suspicion that the entire operation of this board is a sham and a disgrace to the country. Even in those few cases in which the MSPB found that a civil servant actually retaliated against a whistleblower and ordered that damages be paid, the agency felt free to simply ignore the order and refuse to pay back the wages it had deprived the whistleblower from receiving by illegal termination. When an agency does this, the whistleblower may petition the Board to enforce its order. However, the MSPB has been known to refuse to do this, allowing scofflaws at the agency to simply ignore the authority of the Board.
For many years, the United States Supreme Court ignored the criminal actions that were being given judicial approval by the U.S. Court of Appeals for the Federal Circuit. However, in 2011, it decided by unanimous vote that the standard used by the U.S. Court of Appeals for the Seventh Circuit in reversing the decision of a jury favorable to a veteran was wrong. The MSPB, with the consent of the U.S. Court of Appeals for the Federal Circuit, had used the same standard for dismissing tens of thousands of complaints filed pursuant to USERRA since the law was passed in 1994. Unfortunately, the decision itself was not rendered in a case involving a federal agency, but the legal principle was the same. Furthermore, Justice Scalia defined how the courts should treat complaints filed pursuant to USERRA, and his opinion differed greatly from the opinion adopted by the MSPB, which requires an arcane and esoteric test to determine whether it has jurisdiction over USERRA complaints. In the decision found in Staub v. Proctor Hospital, 562 U.S.____(2011), the Supreme Court insisted that there should be little difference between handling a lawsuit filed pursuant to USERRA and one filed pursuant to any other employment discrimination statute.
In the decision he wrote for Staub, Justice Scalia wrote the following concerning the USERRA statute:
"The Statute is very similar to Title VII, which prohibits employment discrimination 'because of … race, color, religion, sex, or national origin' and states that such discrimination is established when one of those factors was a motivating factor for any employment practice, even though other factors also motivated the practice.' 42 U.S.C. §§2000e-2(a), (m)."
For Title VII lawsuits, the test outlined in McDonald-Douglas v. Green, 411 U.S. 792 (1973) has been employed to decide whether illegal discrimination played a role in a personnel decision. A similar test has also been applied in age discrimination lawsuits. A person who was illegally discriminated against by an employer can show the court that he applied for a job for which he was qualified but was turned down, apparently for an illegal reason such as race, color, national origin, sex, or age. By doing this, he establishes what is called a prima facie case. This requires no mind reader to probe the inner motives of the employer. Once such a case is established, it is up to the employer to show that there was another, non-discriminatory reason for turning the applicant down. Theoretically, if the reason given turns out to be a pretext, the discrimination victim must win his case. This does not always happen, however. In Fisher v. Vassar, 114 F.3d , 1332 (1997), the United States Court of Appeals for the Second Circuit did not follow the Supreme Court guidelines, and ruled by a 7 to 6 en banc vote that, proving the reasons given by an employer to a court are pretexts does not mean that the discrimination victim will receive the damages awarded by a jury. Instead, it requires the discrimination victim to provide even stronger proof to make his or her case. A Supreme Court ruling is supposed to be followed strictly by lower courts; but if a lower court disregards the ruling, the Supreme Court seldom takes any action to correct the error.
Establishing a prima facie case is one way for a discrimination victim to proceed, but the Supreme Court has also ruled in Swierkiewicz v. Sorema, N. A., 534 U.S. 506 (2002), that a discrimination lawsuit can be won without establishing such a case. Before that decision was rendered, thousands of lawsuits were wrongfully dismissed prior to discovery in those Circuits which demanded that a prima facie case be made at the time a complaint is filed initially with the Court. In fact, at various times, the Supreme Court has accepted statistical evidence of discrimination against a member of a particular protected group. This led the U.S. Department of Labor to establish the 80% or 4/5 test to determine whether or not evidence existed to establish a prima facie case for discrimination, and shift the burden of proof to the agency. The test consists of comparing the hiring, promotion, or retention rate of a protected class of applicants with that of the class having the best rates. If members of the protected class have less than 80% as much chance as a member of the most favored class of being hired, promoted, or retained, then a prima facie case for discrimination has been established statistically. The Federal Contract Compliance Manual insists that this method be used for all classes protected by Title VII and victims of age discrimination; yet it has consistently refused to use this method for Vietnam Era veterans and veterans of later conflicts. The Supreme Court decision in Staub v. Proctor Hospital suggests strongly that the 80% test must be employed in investigations to determine USERRA violations.
Between 1994 and 2011, the MSPB had been dismissing all administrative complaints from veterans who were civil servants or applicants for civil service jobs for lack of jurisdiction because they had not shown that the intent of persons making personnel decisions against them was animosity against those who had served honorably in the Armed Forces during time of war or national emergency, as defined by Congress. During one of my appeals, the administrative judge ruled that proving an agency committed multiple prohibited personnel practices during a selection does not entitle a veteran to relief from the Board unless the violations were proven to have been committed because the person in charge had animosity against veterans. If religion, sex, age, or race had been the motivating factor for the Department of the Interior's rejecting me for employment, then the MSPB would have lacked jurisdiction to hear my appeal at all. Therefore. as long as the agency refused to explain its actions, only a certified mind reader could provide the necessary evidence for the MSPB to accept jurisdiction over my USERRA complaint. It is thus difficult to determine how the Merit System Protection Board can protect the merit system in any way; and observing its results, it is clear that it does not.
This handling of USERRA complaints by the MSPB is about as far from the guidelines established by the Supreme Court for Title VII lawsuits as it can get. This is because of a deliberate campaign by the MSPB to make USERRA ineffective, just as it has nullified the Whistleblowers' Protection Act. It is clear that the MSPB is already working tirelessly to circumvent the redefined rules, which Justice Scalia and his associates have imposed on the Federal Circuit and the Executive agencies it monitors.
If the United States Department of Justice were doing its job to eliminate overt corruption from the federal government, some limits might be set for the felonies that federal civil servants are free to commit with complete sovereign immunity. When the person who made an employment selection for the Department of the Interior in 2005 was forced by the MSPB to reconstruct the selection to fill the same vacancy in 2008, he submitted a sworn statement indicating that he had chosen the non-veteran because he was qualified for the job, and without regard for the procedures in the Merit System Protection Act designed to select the best qualified applicant. The administrative judge quickly rejected this and ordered him to reconstruct the selection according to the law, meaning that she wanted a clear statement that the person selected was more qualified than I was in 2005. The first report of the person who had made the selection was clearly honest, but should have highlighted the glaring legal violations in the selection procedures he used.
The second report contained the allegation that the person selected, who was Canadian by birth and not a veteran, was selected because he was better qualified than I was, although the examination scores did not indicate this. Between the pages of his sworn statement was a piece of paper purportedly outlining the qualifications of the successful applicant. This paper contained allegations that the applicant had supervised hundreds of researchers and handled multi-million dollar budgets. The paper was inserted in the file in a way to appear that it was part of the letter, although it was not. Looking at the resumé the successful applicant had submitted, however, showed that he had worked as an assistant to a section chief at the National Science Foundation. He showed no experience making decisions of any kind on his own authority, and had never managed any budget at all. He had gone to work for the National Science Foundation shortly after completing graduate school and some post-graduate work, and there was no record of his having supervised the research of anyone at all.
Inserting a paper showing fictional work between the pages of a sworn statement for the purpose of fraudulently influencing an administrative appeal is obstruction of justice, while the second statement by the selecting official was perjury. Both are felonies, one committed by an unknown agency employee and the other committed by the selecting official, after he was suborned to do so by the administrative judge for the MSPB so that she could rule in favor of the agency. I reported this to the FBI in Queens, New York.
After Deanna Stouder twice committed perjury at a hearing of the MSPB in 2000, I protested to the administrative judge that he was permitting felonies to be committed by agency witnesses. He responded that the MSPB is an Executive agency and not a criminal court. Therefore, he had no authority to do anything about perjury by witnesses or the alteration of documents prior to submission to the MSPB by the agency. However, he did not accept the statements or documents as evidence. Instead, he fraudulently created fictional situations of his own to justify decisions in favor of the agency. By 2008, the MSPB was accepting obvious perjury and falsified documents as evidence, even after the documents were shown to have been altered. Its administrative judges were still saying that it was not a criminal court, and practically invited agency witnesses to tell any lies they needed to at hearings to support their agency's defenses. The fact that the testimony was recorded electronically did not seem to deter anyone from perjuring themselves. Apparently, it is understood that the Justice Department will not prosecute federal civil servants who commit felonies at the behest of their superiors.
The FBI agent receiving the complaint and documents indicated that it probably was not of interest to his agency to investigate federal civil servants, and shortly afterward, I received a letter confirming this. The letter did say that a copy of my complaint had been sent to the Inspector General (IG) of the Department of the Interior, who would investigate the complaint. Very soon thereafter, I received a letter from the IG's office saying that the Merit System Protection Board had the matter before it, so it would take appropriate action. Apparently, any felony a civil servant commits can go without investigation or prosecution because nobody in the government has any responsibility to do anything about it.
Congress certainly has created laws to protect the worst of the lowlife infesting the government, and it cannot overcome its lethargy to do anything about it. Just based on the decisions by the MSPB, Office of Special Counsel, Department of Labor, and the United States Court of Appeals for the Federal Circuit, we have to conclude that there has never been a legitimate complaint by a whistleblower. In fact, the conclusion is unmistakable that practically nothing has ever been said, written, or done that qualifies as whistleblowing. In fact, the House Committee on Government Oversight and Reform wrote exactly that in its report recommending the passage of its bill to improve the Whistleblower Protection Act about seven years ago. It said that precedential decisions by the United States Court of Appeals for the Federal Circuit had contravened the stated intentions of Congress through its decisions, severely restricting the definition of whistleblowing. The bill passed shortly later, but the Senate did not vote on a matching bill before Congress adjourned.
Similarly, it can be concluded that no veteran has ever been discriminated against by any federal employee in hiring, promotion, or retention, and veterans' preference laws have been abided by scrupulously from the beginning of the Vietnam War to the present time.
If these assumptions are true, then Congress has been throwing away billions of dollars each year just to establish as fiction that some senior civil servants are acting criminally by suppressing all criticism and disregarding veterans' preference in order to capriciously stuff their agencies with woefully unqualified persons who they personally know, are related to, or pay bribes for their jobs. Congress, however, regularly reports that reprisal against whistleblowers and discrimination against veterans in public employment are enormous problems at the present time, and this is backed by reports from the Gvernment Accountability Office and numerous expert witnesses who testify before it.
If Congress is right, then a quick look at the outcomes of MSPB appeals should show conclusively not only that administrative judges of this agency are criminally malfeasant, but that they are committing fraud on a massive scale in order to deny whistleblowers and veterans any means of redress. This amounts to denying tens of thousands of patriotic citizens who have risked their lives for the good of the country a means to support themselves, which is tantamount to murder on a massive scale. Indeed, the Department of Veterans Affairs (DVA) has been accused of killing veterans on many occasions by delaying required medical treatment, failing to provide them pensions after the Department of Labor has denied them access to employment opportunities, providing them with no emergency assistance after they become homeless, and giving them substandard medical care in veterans' hospitals. At least two attorneys employed by the DVA have been sentenced to prison terms of more than five years for making it impossible for a veteran to obtain timely medical assistance by putting their claims files through a paper shredder. The complete disregard that our government has for the lives of veterans is shown by the fact that, after conviction, these lawyers received only about 14 months in prison for each veteran they killed. Killing a non-veteran might have gotten them a death sentence.
Does Congress want whistleblowers eliminated and veterans murdered? From the nature of its actions, it would seem that at least some members of Congress do see safety in having civil servants accept omerta, the Mafia code of silence. This would suggest that these Congressmen are engaged in activities that could cause them to lose their seat in Congress or even be sentenced to prison if this came to light. As for war veterans, many politicians consider the benefits the law says must be paid to them as a danger to the national budget, and agencies like the Special Counsel and MSPB cover up the impersonal mass murder necessary to reduce their numbers sufficiently to save the treasury hundreds of billions of dollars.
In fact, a master plan for denying civil service jobs to most veterans of the Vietnam Era and later was available on the Web site of the House of Representatives for many years, and can still be found on the Internet. A letter written in 1977 from the Comptroller General to Congress, accompanied by demands for the change or elimination of veterans' preference laws prepared by the Civil Service Commission, outlines procedures for making veterans' preference completely ineffective. President Carter's administration stated that it wanted to give preference to certain non-veterans, and the law was preventing the Civil Service Commission from doing so. Congress refused to implement any changes, but the legal status of veterans' preference at the time permitted the civil service to implement all of the recommended changes without having Congress change any laws.
In 1944, Congress passed the GI Bill of Rights, which included veterans' preference in public employment. The law included no enforcement provisions because Presidents Truman and Eisenhower saw to it that the law was obeyed. Americans then regarded persons who discriminated against veterans of World War II or the Korean War to be low-life, deserving to be ostracized by society as a whole. President Carter clearly was not a proponent of veterans' preference, and he allowed his administration to break the law in the knowledge that the lack of enforcement provisions would provide veterans with no recourse if their legal right to preference were violated. Making laws to be broken by government officials with impunity turns them into scofflaws, as it did in my case. Since 1977, a whole variety of methods were developed to deny veterans any chance of being hired, no matter how good their qualifications were.
Every time a veteran tried to file a lawsuit to force the federal civil service to obey the law, the judge dismissed the case because of a precedent set soon after the Vietnam Veterans Reajustment Assistance Act was passed in its final form in 1974. It had been decided that only the U.S. Secretary of Labor had standing to file a lawsuit on behalf of a veteran who had been unlawfully discriminated against by any employer, including the Federal Government. Everyone knew that no Secretary of Labor would ever file such a lawsuit. It was not until 1998 that Congress got around to passing a law providing for the enforcement of the veterans' preference laws; but by that time, large numbers of highly talented veterans had perished on the streets in abject poverty, or were so psychologically stressed by their lives as homeless persons for more than two decades that their appearance alone would deter most employers from hiring them for any job.
Between 1977 and 1998, the federal civil service turned 1,100,000 jobs formerly held by veterans over to non-veterans. This number approximates the number of Vietnam Era veterans who have become homeless at one time during their lives. Whenever it is necessary for a government official or the mass media to explain to the public why 40% or more of the homeless people in America are war veterans, the subject of post-traumatic stress disorder (PTSD) is brought up. However, more than four out of five veterans have been found not to be afflicted by PTSD, and those who are receive a small pension that is just enough to allow them to avoid homelessness. Obviously, there is nothing keeping homeless veterans from finding a place to live other than the blatant employment discrimination that is practiced against veterans by agencies like the U.S. Office of Special Counsel, VETS, MSPB, and Office of Personnel Management. Since taking away a person's right to earn a living is equivalent to murder, we can see how easy it is for a government that has elevated itself above the law to follow the example of Stalin, Hitler and Mao, and remove troublesome groups from society by killing off large numbers of their members. Veterans are simply too expensive to keep alive because the legal benefits they are owed are too costly for our politicians to pay willingly. Whistleblowers must perish for obvious reasons in any lawless country. The only hope for justice is for the crimes committed to be prosecuted criminally, the guilty justly punished, and the victims justly compensated.
Revised Sept. 25, 2013
Published with permission of the author, Charles W. Heckman, who may be contacted at firstname.lastname@example.org. His most recent lawsuit for employment descrimination against the U.S. Department of the Interior concerned 99 selections between 2003 and 2007, for which his examination score was highest on most. The case has been in the courts since 2008 and currently is inactive [C. W. Heckman, personal communication, Oct. 2, 2013].
The statements and opinions expressed in "Seventh Amendment Violations" are those of the author and do not necessarily reflect the views of Dr. Bernofsky.
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