A Veteran's Lament, Part 2

On October 20, 2006, the Merit System Protection Board issued a final decision in the appeal David M. Brandt v. Department of the Air Force, Docket No. SF-3443-04-0614-I-3. The decision, in effect, gives force of law to a scheme devised by the U.S. Office of Personnel Management (OPM) to make the Veterans' Employment Opportunity Act of 1998 unenforceable. It affirms that an agency may conduct what is called a "merit promotion selection" at the same time as it conducts an open selection to fill an agency vacancy. Merit promotion selections allow no preference for veterans with statutory entitlement to preference, thereby nullifying any benefits to which the veteran may be entitled. There is no statutory basis for a merit promotion selection, but the Board has ruled that it is permitted because Congress was ambiguous about its intentions, something the Board first noticed in 2006, 62 years after veterans' preference had been in force.

Merit promotion selections, however, go much farther. They nullify the merit system itself. The selecting officials are not shown the examination scores but are rather given a list of names of all qualified applicants arranged in alphabetical order. From this list without ranking according to examination score, the selecting officials are supposed to just know which applicant is best qualified for the job. In the case of the U.S. Geological Survey, with which I have had personal experience, the resumes are submitted electronically in a format too small for a well-qualified applicant to properly describe all of his or her qualifications. Therefore, the selecting officials are simply left to select someone they personally know. This method is clearly a prohibited personnel practice since it gives illegal advantages to certain applicants and causes disadvantages to others. It also allows the selecting officials to act entirely on illegal bias based on race, religion, national origin, age, or veteran status. See 5 U.S.C. §2302 (b). Under the present system used by the Equal Employment Opportunity Commission (EEOC), a person so discriminated against can only find redress if the person guilty of the bias confesses to his motive.

Most Americans believe that appointment to civil service jobs depends entirely on qualifications determined by competitive examination. This is no longer the case since examination scores are not considered in merit promotion selections. As a concrete example, when two selections are held to fill the same vacancy, as they now usually are, the open selection might yield a list of 100 names with examination scores between 70% and 110%. The highest score would have to be a disabled veteran because only veterans' preference points can raise an applicant's score above 100%. Since a veteran had the top score, he would have to be chosen unless the Office of Personnel Management (OPM) granted the agency a waiver. In that case, the agency would return the hiring certificate for the open selection to the OPM unused and turn to the merit promotion certificate on which examination scores are not shown and the names are listed alphabetically. The selecting officials would then be free to choose the non-veteran with the score of 70%, passing over the 99 applicants with higher scores.

Obviously, the Merit System Protection Board has repealed the veterans' preference statute, which became law in 1944, and all laws requiring competitive examination, which have been followed since 1878. It opens the way for civil service supervisors to offer jobs in exchange for sex, as in the case of the former mayor of Spokane, who was forced to resign for that kind of behavior. It also allows agency officials to sell civil service jobs, assuring that incompetent persons will be selected to fill Federal jobs, since the examinations given by most agencies guarantee a passing score to everyone with intelligence above the level of moron.

Examples of the outcomes of some of the selections held by the U.S. Geological Survey illustrate what I have said. For one vacancy for a supervisory scientist at the GS-15 level, equivalent to a full university professor according to the OPM, a person was chosen who spent 10 years during and just after the Vietnam War with a student deferment, and in spite of spending 6 of those years in graduate school, failed to earn either a PhD or a master's degree. Another was selected at the same level who had failed to receive a PhD but was awarded a master's degree after spending an equivalent period in graduate school. Others were selected who had never attended graduate school at all. Several applicants were selected who had spent more than 20 years in well-funded government scientist jobs without ever obtaining research results worthy of publication. That is like someone working for 20 years as an insurance salesman without ever selling one policy. That would certainly not happen outside of the government service. I have obtained an expert opinion from a university provost who confirmed that none of those people would qualify as even an assistant professor at an American university, yet the agency gave them jobs in science requiring the qualifications of a full professor. The U.S. Geological Survey has responded that the job of a scientist in government is different from that in the private sector, ignoring the fact that many government scientists are assigned to work in cooperative research units at universities.

The Supreme Court has frequently been criticized for legislating. In effect, that Court can amend the Constitution by a 5 to 4 vote. In the case of the Merit System Protection Board (MSPB), we now have an administrative body staffed by three less-than-competent lawyers employed by the Executive Branch repealing laws that were passed by Congress and enforced for more than 100 years. The only review for its decisions is the United States Court of Appeals for the Federal Circuit, which always rules in favor of the agency. Some judges on this court have the dubious distinction of making more trips to scenic spots for conferences and seminars, sponsored by others, than most other judges in the country. In effect, this court has become the mother of corruption in the Federal Government, encouraging Federal supervisors to fire and blacklist whistleblowers, blackball veterans because of their military service, and violate all standards of common decency.

It might be argued that merit promotion is needed to reward present civil servants for good performance. In my experience of applying for about 80 announced vacancies with the U.S. Geological Survey since 2003, I have discovered that in many cases, "merit promotion" is a misnomer. Many of the applicants that were hired worked for other agencies or were former Federal employees who had been removed from their positions with other agencies after a long history of less-than-meritorious work. If a supervisor wants to hire a person without any previous experience in the Federal civil service, this is also possible, even though merit promotion selections are supposed to be closed to everyone except Federal employees, former Federal employees, and certain veterans. The person is simply appointed without a competitive selection for a temporary vacancy and then is allowed to apply under merit promotion rules.

As a veteran with more than two years of combat service in Vietnam, I have not been selected for any of the vacancies I applied for, even though my examination score was highest or tied for highest on 33 selection certificates and would have been highest on two more if the agency had not computed my score incorrectly. Most of these were merit promotion examinations, so this highest score did not include any preference points. After I complained about the biased selections, my examinations for at least 11 more, conducted in the Eastern Region of the agency, were discarded without being graded on orders of an official whose perjury in a deposition made to the Equal Employment Opportunity Commission (EEOC) I had formally complained of. In one case, the Veterans' Employment and Training Service found the agency to be in violation of the law and forced it to grant me a letter of priority for the next selection. During that selection, my application was again discarded before the examination was graded.

In the file submitted by the U.S. Geological Survey to the Merit System Protection Board in my own appeal, I found that substantial changes had been made to the records. For example, on one certificate I obtained in 2004 through a Freedom of Information Act request, my examination score was listed as 105%, but on the copy given to the MSPB in 2005, my score was listed as 100%. Other documents contained notations obviously made long after the selection process was completed. The agency also had documents showing that one of the applicants selected was a preference-eligible veteran, although he was not. From correspondence sent by the Veterans' Employment and Training Service (VETS), I am led to believe that the U.S. Geological Survey altered its documents on the advice of a VETS investigator, Mr. Patrick Harvey, who then saw to it that the Office of Special Counsel (OSC) would not investigate my complaint. Alteration of records such as this is obstruction of justice, a felony.

Apparently what VETS, the OSC, and the MSPB are doing, in collaboration with the OPM, is receiving complaints from aggrieved veterans, sorting out the illegal acts committed by civil servants in denying them their civil right to compete fairly for Federal employment, and then condoning those illegal acts by declaring the crimes to be acceptable procedures. These agencies are legislating, making new laws and repealing old ones only on their own authority and answerable to nobody, except to a notoriously corrupt appeals court which is responsible only for rubber stamping the actions of these agencies and handling a few obscure patent cases. This procedure itself violates the right of citizens to trial by jury in civil cases, supposedly guaranteed with the Seventh Amendment. In whistleblower appeals, the U.S. Court of Appeals for the Federal Circuit has ruled at least 122 times in favor of the agencies and only once in favor of a whistleblower. This, of course, does not mean that the whistleblower eventually prevailed. It only means that the case was sent back to the MSPB for further consideration.

According to the information I have obtained from the agencies, the Veterans' Employment and Training Service gives substantial assistance to fewer than 1 in 1,000 veterans who file complaints. This agency received a budget of about $219 million last year. The U.S. Office of Special Counsel assists about 1 in 800 complainants and has classified me as the 1 in 800 in its press release. My case was considered a "favorable settlement" for a veteran because the OSC negotiated a settlement agreement with the U.S. Forest Service which was not enforced and resulted in my being blacklisted for all employment for more than seven years. The Merit System Protection Board has never provided relief for a veteran and has published tracts denouncing veterans' preference on its website.

If these agencies find that veterans' are never discriminated against or denied benefits, then why to they need to exist? If, however, discrimination against veterans is common, as Congress has determined, and as I know from personal experience, then why should the employees of these agencies not be given prison sentences for fraud and malfeasance?

The clearly unlawful actions of these agencies raise another question. Why does America need Congress at all? If the courts and Federal agencies are free to repeal the laws Congress passes — as they have done with the Veterans' Employment Opportunity Act of 1998, Whistleblower Protection Act, and Merit System Protection Act — and make new laws such as that permitting "merit promotion selections" without competitive examination, why do the taxpayers have to pay billions of dollars in salaries, benefits, and retirement to senators and representatives whose actions do little more, if anything, than make agencies and judges create new rules to nullify the laws Congress passes? If Congress wishes to delegate its legislative authority to any civil servant who wishes to do things that current laws do not allow, it would release Americans from a great financial burden by simply declaring itself permanently dissolved.

Sincerely yours,

Charles W. Heckman, Dr. Sci.
USAF Service, 1964-1968
Vietnam Service 1966-1968 (2 tours)

Distinguished Flying Cross, Air Medal with 29 OLC,
Vietnam Cross of Gallantry w. Silver Star, etc.

Blacklisted 1998 to date for reporting the waste of $208,000 by the U.S. Forest Service on junk science and the misappropriation of $20,000 to pay a bribe to rig a Federal civil service selection against a veteran.