Update on Merit System Protection Board litigation

 

Charles Heckman

Veterans’ Voting Bloc

Washington State

 

Please circulate

 

   As an update about my ongoing litigation with the Forest Service, I have attached the reply brief I mailed to the Court of Appeals yesterday.  I would really like to attach the brief from the Forest Service, as well, but I only have a printed copy and my scanner does not work.  I would only be able to fax a copy if anyone wants to see it.  It is also available as a public document from the Clerk of the Court in Washington, D.C.

   As shown, the Forest Service was required to bring clear and convincing evidence to support its case.  In a civil case, this standard of evidence is equivalent to that in a criminal case sufficient to put someone in the electric chair.  They brought no evidence at all.  However, with the administrative judge’s help, they won initially before the Merit System Protection Board, and the Board itself declined to review the case.

   As historical background, in 1980, the General Accounting Office estimated that tens of billions of dollars were being stolen from the Federal agencies through fraud.  The Department of Justice estimated that 10% of all the money in the Federal budget was being stolen outright or through contract fraud.  As a result, the Whistleblowers’ Protection Act was passed in 1989 to protect employees disclosing fraud, waste, or criminal actions, and in 1994, violations of veterans’ preference was added to the jurisdiction.

   As we recently learned, the MSPB has never ruled in favor of a veteran.  It almost never rules in favor of whistleblowers, either.  In two of four cases where it did, the agency simply fired the whistleblower again, and the MSPB did nothing.

   Put that in perspective.  Since we can assume that the theft and fraud has been increasing as more and more whistleblowers have lost their jobs, we can estimate that the amount of money being stolen each year by Federal civil servants and their confederates would fully pay for all concurrent receipt for disabled military retirees - more than a dozen times over!  It would also be more than enough to pay for the promised free medical care to retired military personnel.  In fact, the estimated amount of the theft each year is in the same order of magnitude of the entire DOVA budget.

   My open letters to President Bush and Senator Cantwell have not yet been answered.  Apparently, it is easier to cheat veterans than to do something about the Vietnam Era draft dodgers running the civil service, who have gained some kind of a right to steal whatever is not nailed down.  Hundreds of millions of dollars just disappear from the books without a trace, while a far greater amount is taken through fraud, as in the Forest Service case.  Al Capone never had it so good.

   Will I win my appeal?  What do you think?  I am up against all of the legal expertise at the United States Department of Justice, which is defending the criminals.

 

   Remember, the oral argument for my veterans’ preference violation lawsuit against the Washington State agencies is scheduled for May 12, 2003, at 9 a.m. at the Washington State Court of Appeals, Division II, in Tacoma.  If you can’t attend, I ask for your prayers and comments to your congressmen.

 

Sincerely,

Charles W. Heckman

USAF – Jan. 1964 – Nov. 1968

Vietnam Service - Troop carrier pilot - FAC

 

 

 

 

 

United States Court of Appeals

 

FOR THE FEDERAL CIRCUIT

______________

 

03-3028

 

Charles W. Heckman

Petitioner

 

v.

                            

Department of Agriculture

          Respondent

 

 

 

Petitioner’s Reply Brief

 

 

 

                                                                                                    Charles W. Heckman

                                                                                                   Pro se

 

                                                                                                      315 93rd Ave., S.W.

                                                                                                      Olympia, Washington 98512-9101

                                                                                                Tel. (360) 352-8564

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Table of Contents

 

 

Statement of Issues…………………………………………………………………...……….….1

 

Statement of Case...………………………………………………………………..….……….…2

 

I. Nature of the case.……………………………………………………….…………….2

 

II. Statement of facts and course of proceedings …...……………………....…………3

 

Summary of Argument….………………………………………………………………….……7

 

Argument………..…………………………………………………………...………………...…8

 

            A. Assumption of agency good faith…………..……………………………………...…9

 

            B. Credibility of agency witnesses……………………………………………………..11

 

1. Station Director Mills…………………..……………………………………12

 

2. Program Manager Stouder………………………………………………….13

 

3. Team Leader Bisson…………………………………………………………15

 

            C. The wrong test of the evidence is a fatal error of law……………………………..19

 

            D. MSPB bias and the public good…………………………………………………….23

CONCLUSION……………………………………………………….…...…………………....27

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Table of Authorities

 

Asplundh Mfg. Div. v. Benton Harbor Eng’g, 57 F. 3d 1190 (3d Cir. 1995)………………....13

Caroll v. HHS, 703 F. 2d 1388 (Fed. Cir. 1983)…...……………………………………………3

Hambsch v. Department of Treas., 796 F. 2d 430 (Fed. Cir. 1986)…………………………….3

Johnson v. Department of Defense, 87 M.S.P.R. 454, 459 (2000)...…………………………....2

 Mississippi Valley Barge Line Co., v. United States, 292 U.S. 282 (1934)……………………..3 

Oregon Natural Resources Council Action v. United States Forest Service and

Bureau of Land Management, 59 F. Supp. 2d 1085 (1999) .….………………………25

Shockro v. FCC, 5 M.S.P.R. 113, 117 (1981)……………………………………………….…...9

Thompson v. Farm Credit Admin., 51 MSPR 569. 574 n. 1 (1991)……….……………………6

U.S. v. Throckmorton, 98 U.S. 61………………………………………………..……….…..….2

 

U. S. Constitution

Amendment I, United States Constitution…………………………………...…………………2

Amendment V, United States Constitution……………………..……...……………………....1

Amendment VII, United States Constitution……………………………………………....2, 24

Statutes

 

5 U.S.C. §552a………….……………………………………………………………………….10

 

5 U.S.C. §1201………………..……………………………………………………………...…...1

 

5 U.S.C. §2301………………….………………………………………………………………...9

 

5 U.S.C. §2302 (b)………………………………………………………………………..…….1, 2

 

5 U.S.C. §2303……………………………………………….…..…………………….……........1

 

5 U.S.C. §3330a………………………………………………………..……………………....…2

 

5 U.S.C. §5544………………………………………………………………………………...….5

 

18 U.S.C. §1961 et seq…………………………………………………….…………...………..10

 

28 U.S.C. Appendix, Rules of Evidence, Article VIII, Rule 605 ……...…………………..…26

 

28 U.S.C. Appendix, Rules of Evidence, Article VIII, Rule 608……………………....…15, 16 

 

28 U.S.C. Appendix, Rules of Evidence, Article VIII, Rule 701 et seq. ……………..13, 15, 16 

 

28 U.S.C. Appendix, Rules of Evidence, Article VIII, Rule 801 et seq. ………………....13, 15

 

31 U.S.C. §3730…………………………………………………………………………...…….16

 

Federal Regulations

 

5 CFR 315.801……………………………………………………………..………………......…1

 

5 CFR 532.503………………………………………………………………...………………….5

 

 

 

 


 United States Court of Appeals

 

FOR THE FEDERAL CIRCUIT

______________

 

HECKMAN v. AGRICULTURE, 03-3028

 

 

 

CERTIFICATE OF SERVICE

 

   I, Charles W. Heckman, Petitioner pro se, hereby certify under penalty of perjury that two true copies of this reply brief were sent on this 21st day of April, 2003, in a secure cover by priority mail of the United States Post Office to the following representative of the Respondent at the address given by him for receiving his mail.

Mr. Lawrence Minch

Commercial Litigation Branch

Civil Division

U. S. Department of Justice

1100 L Street N.W., Room 8012

Washington, D.C. 20530

 

 

Olympia, Washington

this 21st day of April 2003                                            _______________________________              

                                                                                          Charles W. Heckman, Dr. Sci.

                                                                                     Plaintiff pro se

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

United States Court of Appeals

 

FOR THE FEDERAL CIRCUIT

______________

 

HECKMAN v. AGRICULTURE, 03-3028

 

 

 

CERTIFICATE OF COMPLIANCE

 

   I, Charles W. Heckman, Petitioner pro se, hereby certify under penalty of perjury that to the best of my knowledge and belief, the word count in the body of this reply brief conforms to the requirements of RAP Rule 28 (a) (7) (B) and (C).  The word count reported by Microsoft Word was 6984, including those in the footnotes, and the number of lines was 598.

 

Olympia, Washington

this 21st day of April 2003                                            _______________________________              

                                                                                          Charles W. Heckman, Dr. Sci.

                                                                                     Plaintiff pro se

 

 

 

 

Statement of Issues

1. The logic used in the Merit System Protection Board (MSPB) decision is that a disclosure protected under the Whistleblowers’ Protection Act (WPA) contributed to Appellant’s termination but that Appellant would have been dismissed anyway, mainly because his supervisor did not like the disclosure and Appellant refused to recant.  Does the fact that one of the disclosures that the MSPB initial decision declared to be protected under the WPA is identical with the main “other” alleged reason for Appellant’s dismissal give Appellant a right to reinstatement as a matter of law?  See 5 U.S.C. §§1201, 2302 (b)(8), and 2303.

2. Is the legal standard of clear and convincing evidence mandated by the WPA superseded by 5 CFR 315.801, giving agencies the right to dismiss employees during the probationary year without a need of providing any reason or credible evidence to support allegations?  Is an unsubstantiated accusation alone sufficient to justify punishment?  See Amendment V, United States Constitution.

3. Can such a dismissal based on alleged unsatisfactory performance be upheld even though Appellant had never been provided a copy of the performance standards or clear descriptions of expectations, which would appear to establish an intent on the part of the Station Director to create a false record of poor performance as a pretext to violate a hiring contract he was forced to offer Appellant as a settlement of Appellant’s complaint of an attempted interference with his veterans’ preference rights, which was itself ruled to be a protected disclosure?  See 5 U.S.C. §2302 (b) (8) and §3330a.

4. Is a scientist employed in the Federal civil service obligated to violate centuries-old scientific ethics, protected by Amendment I of the United States Constitution, by falsifying research reports on demand of supervisors and under threat of termination to conform to “budgetary and political realities” and to demonstrate “teamwork?”  See 5 U.S.C. 2302 (b) (9) (D).

5. Is the decision by the MSPB vitiated by fraud and by the extremely large number of factual errors on which the decision is based?  See U.S. v. Throckmorton, 98 U.S. 61.

6. Did improper considerations influence the decision by the Administrative Law Judge?  See Johnson v. Department of Defense, 87 M.S.P.R. 454, 459 (2000).

7. Do the provisions for obtaining redress in this civil dispute before the MSPB meet the standards of a trial by jury as established by Amendment VII of the Constitution?

 

 

Statement of the case

I. Nature of the case

   Cutting away a vast amount of superfluous verbiage produced by the MSPB, the main issue that emerges is whether an assumption of agency good faith and the unrestricted credibility accorded by one administrative law judge to a single agency witness is sufficient to meet the clear and convincing evidence criterion demanded pursuant to the WPA of 1989 as amended in 1994.  RA, p. 84.  What is missing is a single allegation of one specific failing that merits dismissal together with evidence proving its validity.

   As sole support for his allegation that credibility determinations are not subject to challenge, counsel for the Department of Agriculture relies upon decisions that were rendered before the WPA became law in 1989.  See Hambsch v. Department of Treas., 796 F. 2d 430 (Fed. Cir. 1986); Caroll v. HHS, 703 F. 2d 1388 (Fed. Cir. 1983); Mississippi Valley Barge Line Co., v. United States, 292 U.S. 282 (1934).  In passing the WPA, Congress clearly articulated its wishes that the earlier judicial barriers preventing whistleblowers from overcoming presumptions of agency good faith and truthfulness of agency witnesses be eliminated by demanding a substantial burden of proof.

 

II. Statement of facts and course of proceedings

   After he applied for a vacancy as a research scientist with the Pacific Northwest Research Station, United States Forest Service, Dr. Heckman was offered a $20,000 bribe by its agent, Tricia Wurtz, and F. Stuart Chapin, III, of the University of Alaska, if he would withdraw from the selection.[1]  The group did not want to hire a veteran of the Vietnam War with preference rights and later found a non-veteran to fill the post.  Dr. Heckman learned that the money was to be taken from funds earmarked for equipment purchases, laundered through the University of Alaska, and paid out disguised as a research grant.  If Dr. Heckman did not agree, he was told that the selection would be cancelled and the vacancy not filled.  The offer was later confirmed by Wurtz’s supervisor, Hermann Gucinski, an agency program manager based at Corvallis, Oregon, and Dr. Heckman was again urged to accept.

   Evidence of the offer was sent by Dr. Heckman to the U. S. Office of Special Counsel and several members of Congress, and the subsequent investigation confirmed Dr. Heckman’s allegations.  As part of a settlement agreement, he accepted a firm offer of a position as research scientist at Olympia, Washington, under the first line supervision of Peter Bisson.  The binding written contract was entered into by the Pacific Northwest Research Station even though there was no perceived need for another scientist in Bisson’s group.  See ID, Respondent’s Appendix (RA), p. 61, Footnote 136.  Dr. Heckman’s duties were precisely described in the settlement agreement and consisted of performing research of his choosing using methods of his choice under the broad range of topics encompassed by the aquatic/land interactions team.  Petitioner’s Appendix (PA), p. 253.  The performance of personal research is customary for scientific employees of the respondent agency, as confirmed by Mark Wipfli in his lengthy recorded testimony at the hearing before the Merit System Protection Board.  PA, p. 254.

   Dr. Heckman began his work at the Olympia Forest Sciences Laboratory on May 24, 1998.  After Deanna Stouder, a newly hired program manager, replaced James Sedell as Peter Bisson’s immediate supervisor on August 10, 1998, Dr. Heckman’s working conditions were drastically changed.  His equipment purchases were cancelled, although $30,000 had been made available for these purchases.  He was told that permission for overtime work required to meet his sampling schedule would be refused, and he was prohibited from keeping a record of the time he actually worked on the pay sheet, even as uncompensated free time.  On September 23, 1998, he was given a description of four “assignments” different from the work outlined in his job description and substantially different from that of the other scientists employed by the respondent agency.  He nevertheless undertook these assignments and others subsequently given and completed each task within the time frame demanded, even though this work demanded more than 60 hours per week for the salary paid for 40, even though the demand for unpaid overtime violates 5 CFR 532.503 and 5 U.S.C. §5544.  On February 24, 1999, he was given a performance report for the probationary period, originally marked satisfactory but changed to unsatisfactory after Peter Bisson conferred for several hours with Program Manager Stouder.  As justification for this, Bisson produced a bogus review, supposedly written by a third party, which stated that an early draft of one assignment was off the subject.[2]  It was later admitted that Bisson had written the report himself and used it to justify the unsatisfactory rating.  In doing so, he acted as a recognized expert in the field, yet in his testimony before the MSPB, he denied having an ability to testify as an expert on the subject matter of the assignment.  The final versions of the two reports demanded as two of the four assignments were highly praised by three expert reviewers.  See Petitioner’s Appendix (PA), 305-311.  An agency grievance filed about this matter by Dr. Heckman was never investigated and eventually dismissed on the grounds that the MSPB was hearing the appeal in spite of the fact that the MSPB has no jurisdiction over agency grievances.

   After filing his complaint, Dr. Heckman was given a long series of alleged shortcomings of his work by Bisson and Stouder, all of which proved bogus, as admitted, in part, in later correspondence or testimony from the two.  The main reason given for his dismissal on May 20, 1999, was his “resistance” to making changes to one of the two reports he submitted because the report showed that a project funded by Forest Service grants amounting $208,000 had a very low probability of achieving the stated goals, indicating to the MSPB administrative law judge that the statement was a disclosure of a gross waste of funds.  ID, RA, p. 71.

   While the MSPB admitted that Dr. Heckman had made two protected disclosures, the initial decision did not order his reinstatement, and the petition for review of the decision by the MSPB was denied.

 

Summary of argument

   The Department of Agriculture has justified its actions without presenting even a scintilla of evidence.  The favorable decision granted it by the MSPB is based entirely on an assumption of agency good faith and a complete reliance on the credibility of three witnesses, two of whom were admittedly repeating hearsay from the third.  That their testimony was contradicted by irrefutable documentary evidence and that two of the witnesses knowingly given false information under oath were simply ignored.  Unsupported allegations that are obviously contrary to fact were deemed to meet the clear and convincing evidence standard under the law because dismissal was allegedly effected one day before the end of the probationary year, during which the administrative law judge believes dismissal of a whistleblower can be justified by accusation alone.

   The finding that dismissal for reasons other than a desire to deny a veteran his earned preference rights and displeasure with two separate protected disclosures of serious breaches of law and gross waste, as well as other embarrassing disclosures of poor scientific competence and endangerment to public health tolerated by Forest Service personnel, cannot be upheld when evidence for other reasons is not provided.  If Congress had intended otherwise, it would not have given the MSPB jurisdiction over appeals filed by whistleblowers and veterans until completion of their probationary years.

 

Argument

   Counsel for the Department of Agriculture has opened his Statement of the Issues [Respondent’s Brief (RB), p. 2] with the allegation that the Merit System Protection Board’s decision is “supported by substantial evidence.”  However, in the 40 pages of the brief, he fails to mention a single piece of evidence to support the allegations of the agency.  Instead, his entire case is built around the claim that “the administrative judge, however, found the agency witnesses credible, …”  The error in law is unmistakable here, since by definition, an analysis under the WPA demands evidence meeting the “clear and convincing” standard, and unsupported conjecture by a party to the appeal does not qualify as evidence.

   The entire presentation of the case on the 40 pages of Respondent’s Brief is based solely and entirely on self-serving statements by three Forest Service witnesses and an interpretation of their somewhat convoluted meaning by a single administrative law judge.  Here, we have a clear case of allegations being made and confirmation of the allegations being sought in further statements made by the same persons who made the allegations in the first place.  Not a scintilla of evidence can be found to support any of the allegations, and the account of the events in Respondents’ Brief is false and deliberately misleading, almost in its entirety.

 

A. Assumption of agency good faith

   Aside from the fact that it violates a basic principle of the MSPB required under the WPA, Uniformed Services Employment and Reemployment Rights Act, and Veterans’ Employment Opportunity Act to presume agency good faith[3], an analysis of the performance of the Pacific Northwest Research Station would give any reasonable person cause to question the good faith of this agency.

   Thus far, the following acts grossly in conflict with the standards set forth in 5 U.S.C. §2301 have been performed by Forest Service employees:

1. Intended grand larceny involving the misappropriation of $20,000, established as fact;

2. Condoning and concealing the grand larceny by the employee’s supervisor, also established as fact;

3. Bribery, also established as fact;

4. Rigging a Federal civil service selection, which resulted in a “slap on the wrist” for the employee and her supervisor;

5. Reprisal for filing an agency grievance, admitted;

6. Failure by Station Director Thomas Mills to take any action on an agency grievance, which was not considered by the MSPB for lack of jurisdiction;

7. Falsification of submissions to the MSPB concerning previous knowledge by Deanna Stouder and Peter Bisson about the $20,000 bribe offer, mentioned in the initial decision on RA, p. 80, but otherwise ignored;

8. Several counts of perjury by Deanna Stouder at the hearing before the MSPB, as revealed in the recorded testimony and cross-examination at the hearing;

9. Perjury by Peter Bisson at the same hearing, also on the recording;

10. At least one criminal violation of the Privacy Act, 5 U.S.C. §552a, by Deanna Stouder in releasing parts of personnel records over the phone to third parties to prevent Dr. Heckman from finding subsequent employment, as admitted in affidavits by the parties involved.

   Under the definitions in the RICO statute, 18 U.S.C. §1961 et seq.,  the combination of grand larceny, bribery, and perjury qualifies the actions of the Pacific Northwest Research Station as organized crime.  That such actions are condoned by Station Director Mills was confirmed in his recorded testimony before the MSPB that all persons involved in the actions that occurred prior to the hearing were given fully satisfactory performance ratings for the periods in question.  Because felonies are considered acceptable behavior at the Pacific Northwest Research Station, and the only scientist ever dismissed by that agency was Dr. Heckman, whose dismissal was admittedly due, at least in part, for having reported the felonies and refusing to subsequently falsify the report, it is a gross violation of his discretion and a sign of moral turpitude for the administrative law judge to place any confidence in the word of its director and his dependent creatures.  See ID, RA, p. 83-84.  Nevertheless, the administrative law judge improperly granted this agency an unqualified assumption of good faith.  The presumption that a dismissal during the probationary year need not be supported by any evidence of any kind and that the reason need not even be clearly articulated can only be accepted under the premise that the good faith of the agency is completely above question.

 

B. Credibility of agency witnesses

   Similarly, the decision by the administrative law judge is based entirely on the assumption that the agency witnesses are completely competent and unbiased in their testimony, and that they can be accorded unconditional credibility.  This also requires a brief analysis.

   All arguments supporting the agency’s case were provided by only three witnesses: Station Director Mills, Program Manager Stouder, and Team Leader Bisson, all part of a single chain of command.  The bribe offer and subsequent negotiations involved the chain of command consisting of Station Director Mills, Program Manager Gucinski, and scientist Tricia Wurtz.  Station Director Mills admitted being discredited in the eyes of the Chief of the Forest Service and Secretary of Agriculture because of Dr. Heckman’s disclosure.  Dr. Heckman’s employment resulted from a settlement agreement Mills was forced to sign.  Obviously, he is a person involved in both actions and a person in a position of authority sufficient to control the actions of all other agency employees involved.

 

1. Station Director Mills

   Station Director Mills testified that he is the Director of the Pacific Northwest Research Station although he holds no degree in a field of science.  He holds a PhD in forestry with a strong emphasis on economics.  He specifically denied being able to give expert testimony on freshwater ecosystems or other fields of ecology.  Although he denied being competent to provide arguments for the effectiveness of any specific method of “rapid bioassessment,” he stated that he intends to use such a method and faulted the disclosure by Dr. Heckman that the attempts to develop a new “rapid bioassessment” system to compensate for the shortcomings of the available ones has little chance of success and represents a gross waste of at least $208,000.

   Station Director Mills is stationed in Portland, Oregon, and had previously met Dr. Heckman only once during a short visit to Olympia in December, 1998.  He admitted that he had received the allegations concerning Dr. Heckman’s performance from Deanna Stouder and Peter Bisson.  Hence, his testimony on said performance was hearsay, and his judgement on the merits of Dr. Heckman’s disclosure do not qualify as evidence in view of his admitted lack of expert knowledge in the field and lack of training or experience as a scientist.  See 28 U.S.C. Appendix, Rules of Evidence, Article VIII, Rule 801 et seq. and Rule 701 et seq.  Also see Asplundh Mfg. Div. v. Benton Harbor Eng’g, 57 F. 3d 1190 (3d Cir. 1995).

   The testimony of Thomas Mills included the allegation that he placed great value on the success of Dr. Heckman in his new job because of his disclosure of the $20,000 bribe offer.  It also expressed Thomas Mills’s strong desire that Dr. Heckman’s termination be upheld by the MSPB.  The only real evidence presented in Thomas Mill’s testimony is his admission that he had failed to take any action of Dr. Heckman’s agency grievance first filed at the end of February, 1999, almost three months prior to his termination.  A rapid investigation and fair handling of this grievance would have indicated that Thomas Mills’s professions of concern for Dr. Heckman’s success were genuine.  His failure to take any action contravened his own order to his subordinates that grievances should be promptly investigated and is clear evidence of his real motivation to take reprisal for the embarrassment and possible damage to his own career caused by Dr. Heckman’s disclosures.

 

2. Program Manager Stouder

   The testimony given by Program Manager Deanna Stouder and her earlier letters were highly critical of Dr. Heckman’s performance.  The facts revealed during cross-examination also showed the clearest examples of perjury in her initial testimony.  Since they include so many painful self-contradictions and allegations blatantly contrary to the evidence at hand, the Department of Agriculture has chosen not to include anything from her in its appendix.

   She had been appointed by the Forest Service on or about August 10, 1998,[4] and immediately set about creating difficulties for Dr. Heckman by canceling the purchases of necessary equipment; categorically refusing permission for Dr. Heckman to continue working overtime hours during the season of most active field work; prohibiting Dr. Heckman from logging the hours he had actually worked on the record as uncompensated free time; refusing Dr. Heckman her signature for approval to work on the Maxiflex system, under which all other scientists at the laboratory were working; inducing Peter Bisson to issue a memorandum describing four “assignments” that did not conform in letter or spirit with the duties outlined in his initial job description; advising Peter Bisson to change a satisfactory performance report to unsatisfactory.

   Like Station Director Mills, Program Manager Stouder denied having an ability to provide expert testimony on “rapid bioassessment” or other scientific questions at issue.  Upon being found under cross examination to have been lying during her testimony concerning such things as 1) a report she said had never been submitted but then had to admit was submitted to Peter Bisson in her presence, 2) a trip to a salmon spawning stream that she said Dr. Heckman had failed to take but them admitted he had taken while she was also present there, 3) the cancellation of equipment purchases for lack of funds although she had to admit that sufficient funds had been appropriated but were not released on her orders, and 4) the allegation that seven manuscripts submitted by Dr. Heckman for publication were not of interest to the Forest Service, even though she herself had signed publication approval applications indicating that they were and in spite of the fact that they were placed on official lists of agency publications after they were published.  Upon discovery of her perjury, she made a blanket statement that she had no personal knowledge of Dr. Heckman’s performance but had only repeated information given to her by others.  Hence, her testimony lacks value as evidence, either as an expert or as a direct witness (28 U.S.C. Appendix, Rules of Evidence, Article VIII, Rule 801 et seq. and Rule 701 et seq.), and her credibility should be completely impeached by the frequency with which she lied under oath.  See 28 U.S.C. Appendix, Rules of Evidence, Article VIII, Rule 801 et seq. and Rule 608.

 

3. Team Leader Bisson

   The only one of the three witnesses for Respondent agency claiming to testify from direct knowledge is Peter Bisson, the Team Leader and direct supervisor of Dr. Heckman.  As the contact person designated by the Forest Service for liaison with the group led by Charles Hawkins of Utah State University and as one of the 11 co-authors of a 5-page paper by the Hawkins group, Peter Bisson was also the person most directly affected by Dr. Heckman’s critical disclosures concerning the gross waste in supporting this project.[5]  Nevertheless, he had given Dr. Heckman a fully satisfactory performance report on February 17, 1999, but was convinced that he should change it to unsatisfactory by Stouder after several hours of discussion.

   Because Peter Bisson denied having expert knowledge of “rapid bioassessment” and related matters, his opinions on these matters do not constitute evidence.  See 28 U.S.C. Appendix, Rules of Evidence, Rule 701 et seq.  Nevertheless, it is his own evaluation of an early draft of a report submitted by Dr. Heckman, disguised as comments by a neutral third party, which Respondent agency has repeatedly used to justify the first unsatisfactory rating given to Dr. Heckman.

   How much credibility should the MSPB have given to Peter Bisson?  Normally, a person with a proven record of lying during proceedings should not be accorded much credibility.  See U.S.C. Appendix, Rules of Evidence, Rule 608.  In his recorded testimony, Peter Bisson admitted lying to Dr. Heckman concerning the author of the “anonymous peer review” Bisson had written himself.  He was later found by the administrative law judge to have lied to the MSPB concerning his knowledge of the $20,000 bribe offer after having claimed not to have known about this at the time Dr. Heckman was terminated.  First, it was determined that he knew about this after Dr. Heckman filed his grievance, but in unrebutted testimony, Dr. Heckman had confirmed that Bisson had told him that he had known about this much earlier, but without knowing all of the details.  Finally, at the end of the cross examination during the hearing, Bisson admitted having known about this for the whole period of Dr. Heckman’s employment.  Inexplicably, the administrative law judge seems to have forgotten about this testimony and erroneously concluded that it was a proven fact that Bisson first learned of the offer in March 1999.

   In addition, Bisson’s recorded testimony at the hearing contains the following untrue and deliberately misleading statements and inconsistencies, among others:

1.     He claimed that he knew the grant application filed by Dr. Heckman for the project in Colville had been approved only from Dr. Heckman’s own statement.  Dr. Heckman’s own unrebutted testimony had confirmed that this information was given him by Roger Fight, the administrator of the funds, through Peter Bisson.  Furthermore, the file contains an e-mail message from Roger Fight to Dr. Heckman regarding disbursement of the funds with transmission of a confirmation a copy was sent to Peter Bisson.

2.     He testified that the first two assignments mentioned in his memo of September 23, 1998, had been included by Dr. Heckman in a single report submitted to him on March 16, 1999, but that he had insisted that the two assignments be submitted as two separate reports.  Dr. Heckman complied.  He admitted receiving the two reports on May 4, 1999, and signed a receipt acknowledging their submission.  After Dr. Heckman’s termination, he testified that one of the reports did not correspond to one of the assignments, although he incongruously stated that both assignments had been contained in the single report before it was broken up.  He testified that he had not read any part of this report, but somehow knew without reading it that it was did not correspond to the assignment.  The report is part of the record, and the description of the assignment, albeit rambling and confusing, is found in the memo of September 23, 1998, from Peter Bisson.  RA, p. 119-123; ID, p. 94, Footnote 136.  The report contains all of the elements of the assignment.  In light of the self-contradictions within the testimony, any reasonable person would conclude that Peter Bisson had committed perjury on this point in order to confuse the issues.

3.     It was established that Peter Bisson had been employed by the Weyerhaeuser Corporation, the largest lumber producer in America, for about 20 years and receives retirement payments from that corporation, deferred as long as he works for the Forest Service.  He nevertheless testified that he has no personal knowledge of any aspects of the lumber industry.

4.     His testimony about the reliability of an electric fishing method he was employing in his own research project on the Olympic Peninsula was deliberately deceptive.  On this point, he claimed to be able to give expert testimony but could cite no literature or reports that refute the findings from many studies published between 1962 and 1998 showing that the methods are unreliable, inaccurate, and harmful to endangered species.  In defending his own use of these methods, he made a number of false or mutually contradictory statements.  Although the administrative law judge improperly denied that Dr. Heckman’s reports on the inadequacies of these methods was a third protected disclosure, Peter Bisson’s testimony should have further impeached his credibility.

   Hence, the only witness for Respondent agency with the ability to provide direct testimony has a proven record of an inveterate liar.  Furthermore, the memos and letters in the record enumerating the alleged shortcomings of Dr. Heckman contain a whole series of contradictions.  Under these circumstances, the credibility of Peter Bisson as a witness has been impeached to the extent that it should have lost all value as evidence.

 

C. The wrong test of the evidence is a fatal error of law

   The administrative law judge obviously misapplied the law in rendering his decision.  The Whistleblowers’ Protection Act, which undeniably applies in this case, requires evidence that there was a valid reason for the agency action other than whistleblowing or, in this particular case, hostility against veterans.  The need for evidence rather than allegations or hearsay is not mitigated by the rules governing the probationary year, and the citations of case law relied upon in Respondent’s Brief all date from before 1989, when Congress first passed the Whistleblowers’ Protection Act.

   The actions of Respondent agency show a strong motivation to eliminate Dr. Heckman.  Counsel for the Department of Agriculture alleges that a motivation based on reprisal for whistleblowing is lacking, but he fails to allege any alternative motivation, especially in light of the fact that the reprisal began immediately after the arrival of Program Manager Stouder.  No such reprisal had been noted while her predecessor, Dr. James Sedell, held the position.  Since Dr. Stouder was supervised directly by Station Director Mills, and the connection between her actions and the ill will that can be assumed to be held by him against Dr. Heckman based on his subsequent actions provide the logical motivation for the behavior of Stouder.  In such a case, she need not have any personal grudge against Dr. Heckman, but her own desire to succeed at her new job by pleasing her supervisor would be sufficient to explain her actions.  Contributing to her decision to cooperate in the creation a false record of unsatisfactory performance to justify a termination would be the general low esteem in which Vietnam War veterans are held by the personnel at her previous workplace, Ohio State University.  See Record, Study by Trewen and Stever in MSPB file.  If there was really another reason for the dismissal, it was the discrimination against Vietnam War veterans and resistance to veterans’ preference, which was the motivation for the $20,000 bribe offer with which this matter began.  The burden of proof is on the Respondent agency and not on Dr. Heckman, yet no evidence was provided by the agency that the hostile climate against veterans had changed since the bribe offer was made.  Indeed, Station Director Mills had provided no evidence that a warning had been sent to his employees discouraging discrimination against Vietnam veterans in the future.

   Respondent claimed that Dr. Heckman failed to provide proof of the motivation for reprisal by Program Manager Stouder and Peter Bisson.  The MSPB accepted this argument.  This is a fatal error in law.

   First, neither the WPA nor the two veterans’ statutes requires any evidence from the victim of the reprisal other than showing that the persons involved knew about the protected disclosures and/or the status as a veteran.  It was established that all three witnesses of Respondent agency had known about these things prior to Dr. Heckman’s dismissal.  Congress does not require an appellant to read the minds of violators but insists only that they be judged by their actions.  The burden of proof is on the agency and not Dr. Heckman.

   Second, even if Program Manager Stouder had no personal reason for reprisal, the wishes of her direct supervisor, Station Director Mills, would be sufficient to control her actions.  However, she did know about both disclosures acknowledged by the MSPB as being protected under the WPA.  In testifying, she could only provide statements, several shown to constitute perjury, which she had admittedly heard from Peter Bisson and, according to her own testimony, uncritically accepted.  However, we also find agreement between her testimony and the testimony of Peter Bisson that giving the first unsatisfactory rating to Dr. Heckman on February 24, 1999, was not Peter Bisson’s idea but hers.  If she knew nothing about Dr. Heckman’s performance other than what Peter Bisson was telling her, then why did the order to give Dr. Heckman an unsatisfactory rating come from her?  Again, evidence of any motive other than annoyance with Dr. Heckman’s disclosures and veteran status is lacking.  The great bulk of the allegations touted in Respondent’s Brief as “evidence” of unsatisfactory performance involve incidents that occurred subsequent to February 24, 1999.

   Third, the administrative law judge failed to take cognizance that Peter Bisson had told Dr. Heckman that he had known about the bribe offer in Alaska and subsequent whistleblowing concerning the affair before Dr. Heckman was hired and also that he admitted this at the end of his recorded testimony before the MSPB.  However, even if he had not been motivated to take reprisal for this and for the reports Dr. Heckman had prepared reports showing that two methods he hoped to employ were seriously flawed, he did not rate Dr. Heckman’s performance as unsatisfactory until told to change the rating by his first-line supervisor, Deanna Stouder.  Hence, weak or strong, the motive of Bisson was not the main determinant of the Respondent agency’s actions.  It was rather the directives issued by Deanna Stouder, who incongruously testified that she know nothing about Dr. Heckman’s performance other than what other people were telling her.  Refer to Deanna Stouder’s recorded testimony at the end of her cross-examination.  Obviously, nothing could be done without the consent of Station Director Mills, who was obviously orchestrating the entire procedure.

   Both the personnel actions of the Pacific Northwest Research Station in this matter and the long list of false allegations evident in the record provide at least a preponderance of evidence that Station Director Mills never intended to abide by the contract with Dr. Heckman set forth in the settlement agreement.  Whether or not the actions took place during the probationary year is not relevant to the fact that Station Director Mills violated the provisions of his contract.  Under the law, upholding his action requires evidence that there was a reason sufficient to violate it.  The administrative law judge did not require him to do this.  This makes the MSPB decision invalid due to an error in the law as well as fraud by Mills and his subordinates.  In lieu of evidence, the MSPB accepted a series of fraudulent statements made by Mills and two persons he directly supervises, committing thereby a long series of errors in fact to support the error in law.  The errors, both in law and in fact, were then excused by the MSPB on the ground that allegations alone constitute evidence sufficient for a dismissal during the probationary year.  However, an unsupported allegation is not evidence under the Rules of Evidence in Title 28, so the decision must be revoked.

 

D. MSPB bias and the public good

   Normally, jurisprudence requires cases to be decided on their merits, that is, on the law and on the facts.  However, other factors can improperly influence decisions.  In this case, the decision was political.  Since the behavior exhibited by the three Forest Service employees responsible for Dr. Heckman’s dismissal were clearly aimed at creating a false record of poor performance to justify dismissal, the administrative law judge certainly knew that the agency had acted in bad faith.  His decision was obviously determined even before the appeal was filed.  The MSPB has never ruled in favor of a veteran, and according to recent testimony before Congress, it has only rarely ruled in favor of whistleblowers.  Furthermore, of only four whistleblowers’ reinstated, two were simply quickly dismissed a second time, and the MSPB failed to reinstate them again.

   These circumstances indicate that the MSPB is not upholding the law but is rather functioning only to provide an alibi for the violation of the right to trial by jury guaranteed by Amendment VII of the Constitution of the United States.  This is not in the public interest, especially in light of the severe financial losses to the United States being incurred through the moral turpitude of Forest Service employees.  Felonies of the kind committed by Forest Service personnel cause the government tens of billions of dollars in losses.  The efforts of Congress to reduce the fraud have been thwarted by the MSPB, which encourages it by condoning termination of those reporting it.

   The research funds available for misappropriation by the Forest Service are considerable.  For example, the joint Forest Service - University of Alaska project alone had successfully applied for a National Science Foundation grant of $6 million.  Furthermore, the value of the easy to obtain natural resources on Federal land administered by the Forest Service in Washington and Oregon runs at least into the trillions of dollars.  In addition, the Pacific Northwest Research Station has responsibility for Forest Service research in Alaska, where the corresponding value of the resources on public lands is astronomical.

   To have this responsibility for stewardship over inestimable wealth in the hands of a group of persons who could be prosecuted under the RICO statute is completely irresponsible.  That the group is unable to perform the research required of them has not just been suggested by Dr. Heckman’s report, it was determined by a judge in a civil lawsuit 2 ½ months after Dr. Heckman’s termination.  See Oregon Natural Resources Council Action v. United States Forest Service and Bureau of Land Management, 59 F. Supp. 2d 1085 (1999).  The promised applications of the methods the group led by Hawkins and supported by Bisson are not far from spinning straw into gold.[6]  The money has been granted to this group on the basis of fraud, and the excuse offered by Bisson that the research might yield other, unexpected benefits is scarcely credible since, as Dr. Heckman’s report shows, Hawkins methodology is fundamentally flawed.[7]

 

CONCLUSION

 

FOR THE FOREGOING REASONS, THE DECISION OF THE MERIT SYSTEM PROTECTION BOARD SHOULD BE VACATED, APPELLANT SHOULD BE REINSTATED IN HIS POSITION, THE CASE SHOULD BE REMANDED TO THE MSPB FOR ENFORCEMENT ACCORDING TO THE PROVISIONS OF THE LAW, AND EQUITABLE MEASURES TAKEN TO PREVENT FUTURE ABUSES BY THE DEPARTMENT OF AGRICULTURE.

  

Olympia, Washington

this 21st day of April 2003

                                                 _______________________________             

                                                                          Charles W. Heckman, Dr. Sci.

                                                                              Petitioner pro se

 

 



[1] The mythical offer of a grant to develop an identification key has no basis in fact.  Respondent’s Brief (RB), p. 4.  It was made clear to Dr. Heckman that the only thing expected in return for the money was withdrawal from the selection.

[2] It is not permissible to base a performance evaluation on an early draft.  See Thompson v. Farm Credit Admin., 51 MSPR 569. 574 n. 1 (1991).

 

[3]  See Shockro v. FCC, 5 M.S.P.R. 113, 117 (1981).

[4] Respondent’s counsel persists in giving June 1998 as her time of hire because she made a brief visit to the laboratory that month.  However, the hiring rights of the Pacific Northwest Research Station were still suspended at that time due to ongoing remedial training by the OPM as a corrective action resulting from Dr. Heckman’s disclosure.

[5] Reference is made in the ID, RA, p. 32, to a negative review by Charles Hawkins of an early draft of the report with Dr. Heckman’s protected disclosure as grounds for finding the report unsatisfactory.  Besides the fact that Dr. Heckman had already received the first unsatisfactory report from Bisson about two weeks before the review from Charles Hawkins arrived, the report must be dismissed as prejudiced.  Had Dr. Heckman not been employed by the Forest Service at the time, he would have been justified in filing a qui tam claim for fraud on the government against Hawkins pursuant to 31 U.S.C. §3730 based on the fact that the project promised results it could not produce.  The unlikelihood of success was grudgingly admitted by the MSPB, who concluded it could be considered gross waste.  See ID, RA, p. 71.

[6] For about 15 years, government funds have been given to persons promising to develop a method whereby poorly trained and educated members of field crews, employed near the minimum wage to minimize costs, could be sent out to survey streams throughout the country, noting a few easy to determine characteristics of each, such as width and amount of vegetation along the shores, record their data in a computer, allowing it to provide them with an index number, usually between 0 and 5 by an equation which is never revealed.  This “management tool” is alleged to inform engineers about everything necessary to undertake some unspecified actions toward unstated goals.  In his grant proposal, Charles Hawkins, not surprisingly, came to the conclusion that none of the methods already developed are satisfactory.  He therefore demanded and received $208,000 from the Pacific Northwest Research Station to develop an entirely new method based on a British method called the RIVPAC during the summers of 1998 and 1999.  He did not mention that the original RIVPAC demanded a preliminary survey of all species in all rivers and streams in England costing several hundred million pounds.  The preliminary study has been widely acclaimed by scientists, but the RIVPAC itself has not been well received.  Given that the Pacific Northwest covers an area about 2½ times as large as England, such a preliminary study here would cost roughly a billion dollars.  Hawkins gave no clue about how he intended to develop a RIVPAC without a preliminary study of the flora and fauna, which is clearly necessary.  Any reasonable person would conclude the project is unfeasible, fitting the definition of “junk science.”  Strong suspicion of fraud to obtain a large amount of money through the good offices of friends in the Forest Service, particularly Peter Bisson, is not unwarranted.  To suppress information in Dr. Heckman’s report, Peter Bisson, who was rewarded for his cooperation by co-authorship in a research publication from Hawkins’s group to supplement his own meager publication record and advance his career, first made all kinds of wild allegations about what he fancied to be deficiencies in the report and finally terminated Dr. Heckman for his “resistance” to changing it.  The same report was highly acclaimed by all three expert reviewers to whom it was sent.  The allegation that the Hawkins project could be regarded as gross waste was affirmed by the MSPB, but Dr. Heckman was nevertheless criticized by the administrative law judge for closing off “an area of inquiry.”  ID, RA, p. 71, Footnote 148.  In the decision, the administrative law judge frequently interjected his opinion as an expert witness in scientific matters, contrary to the intent of 28 U.S.C. Appendix, Rules of Evidence, Rule 605.  At the hearing before the MSPB more than 18 months after Dr. Heckman was terminated, Peter Bisson testified that the Hawkins group had still not produced a single report or publication on the work that the $208,000 had been provided to support.

[7] To discredit the report and protected disclosure, Respondent’s counsel has introduced new arguments in his brief that were not previously raised.  For example, he states that the report attacks all systematic methods of gathering data.  He also states that an unspecified plan submitted by Dr. Heckman “did not address aquatic invertebrates but only riparian.”  RB, p. 12.  Where is this found in the record?  He goes on to repeat the suggestion raised during the MSPB appeal that the report had to be unsatisfactory because the name of Robert McNamara was mentioned, suggesting that this alone is a sufficient reason for termination.  In fact, this name came up in a discussion of the usefulness of reducing complex systems to simple numerical indices, a basic characteristic of all “rapid bioassessment” systems and a practice promoted in management and decision-making by McNamara more than anyone else.  The name appeared with a quote from a cited book by William Colby, who questioned the soundness of decisions made by such simplistic methods.  Some other extensive works were also cited in conjunction with this particular analysis.