Washington State Chapter
Charles W. Heckman
The need for court reform
Related to the United States Court of Appeals for the Federal Circuit
The recent outcome of my own appeal reflects an important feature of our present government, which has a profound effect upon veterans. It shows a need for reform of the judiciary, which is presently out of control and involved in large numbers of criminal rackets. I have been active with A Matter of Justice Coalition, which is seeking a return to the Constitutional principles of trial by jury and a system of checks and balances within the government. There are a number of similar organizations, which are backed up by a number of judges, who have openly admitted that the judiciary is dysfunctional.
When Col. Day’s case came before the United States Court of Appeals for the Federal Circuit, he may or may not have realized that he never stood a chance of winning. The Federal Circuit has had the reputation for at least 20 years of never siding with a citizen against a government agency, regardless of the facts and law. The Court made the decision ostensibly because the law did not back up the promise of free medical care retired servicemen had been given. I have just received a decision on a veterans’ benefit that is firmly anchored in the law, yet the court decided that even this does not guarantee a veteran his legal or civil rights.
The decision on my appeal to the United States Court of Appeals for the Federal Circuit was rendered on August 11. It will probably not appear on the Internet since it is stamped at the top, “Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. This disposition will appear in tables published periodically.” This means that it is a so-called “unpublished decision,” which usually means that the law is applied one way for one person and another way for another person. Legal reform groups are working to have unpublished, non-precedent decisions prohibited because they encourage unequal application of the law.
A private, non-profit organization, Public Employees for Environmental Responsibility (PEER) had provided me with a lawyer to file a petition for review with the Merit System Protection Board (MSPB) in Washington, D.C. After the MSPB rejected the petition without commenting on the law or facts of the case, PEER refused to represent me for any further appeals. Their lawyer told me that I did not have a chance to win because the United States Court of Appeals for the Federal Circuit had effectively repealed the Whistleblowers’ Protection Act as Congress had written it. It had also refused to recognize the veterans’ laws, effectively repealing them by judicial fiat. I nevertheless opted to file an appeal, representing myself, with the knowledge that I would have a better chance of success if I used the money to buy a lottery ticket. I did not want to leave myself open to the accusation that I had not taken advantage of all legal remedies, and the court records will provide me with firm documentary evidence when I write a book about the treatment of veterans since the Vietnam War.
A representative of another organization had testified before Congress that an analysis of the decisions by the United States Court of Appeals for the Federal Circuit since the Whistleblowers’ Protection Act was enacted in 1989 showed that the court had ruled 69 times in favor of the agencies and 0 times in favor of the whistleblower. By the time this information was put on the Internet, another decision had been rendered against a whistleblower, making it 70 to 0 in favor of the wrongdoers at the agencies. It is illegal to take reprisal against a whistleblower, but the Federal Circuit judges are obviously conspiring with the corrupt agencies to put fear into Federal employees so that they do not report any fraud, gross waste, mismanagement, or other serious abuses in the agency for which they work.
The decision in my appeal, which is number 71 in favor of corrupt agencies, contains only one statement regarding the law and facts: “This case involves an extensive factual background. … For purposes of this opinion, a restatement of those facts is unnecessary.” It then goes on to review the “facts,” providing only a brief outline of events leading to the appeal as presented by the Department of Justice lawyer representing the Forest Service. Its conclusion is “The court finds that the Board’s decision does not violate any law or procedural rules, is not arbitrary, capricious, or an abuse of its discretion, and is supported by substantial evidence”. Where is the evidence? Since the initial appeal was rendered, irrefutable evidence was provided from the record showing that the administrative law judge made gross errors in the law and facts, which may have been due in part to his having rendered his decision 23 months after the appeal was first filed and more than 15 months after the final hearing. The entire period is not supposed to exceed 120 days. The MSPB refused to even review the evidence we presented, and the Court of Appeals refused to consider it as well. From the minor mistakes in this decision, any reasonable person would conclude that the judges had not even read the submissions. Why should they? All they have to know is that a whistleblower or a veteran always has to lose.
Congress has made it easy for the criminals to silence snitchers
Because of the procedures established by Congress to “protect” whistleblowers and veterans, no appeal filed by a whistleblower or a veteran against a Federal agency will ever be reviewed by a jury. The arguments are presented to one administrative law judge, who works for an agency whose employees have been involved in an appeal to eliminate veterans’ preference in choosing these administrative judges. The judge is not really a judge but an administrator, who alone decides the outcome of the appeal. If one party disagrees with the decision, a petition can be filed with the MSPB in Washington for review. When my petition was submitted, only two of the three positions on the MSPB were occupied. The Senate delayed for many months the approval of a third member that President Bush had nominated. The two active members were two quarrelsome women, who frequently announced that they could not agree, allowing the initial decision to stand. On my petition, they agreed that they did not want to read the 85 page initial decision, so they both refused to even review it. This is in accord with the policy of the MSPB never to render a decision in favor of a veteran. Apparently, it never has. Unfortunately for veterans, this is the agency that must hear all complaints filed against Federal agencies by veterans under the Uniformed Services Employment and Reemployment Rights Act and Veterans Employment Opportunities Act.
When Federal Circuit Judges Lourie, Rader, and Bryson rendered their decision, this closed off all avenues of appeal, except to the United States Supreme Court, which has not agreed to hear an appeal by a whistleblower or a veteran in recent history. Amendment VII of the Constitution of the United States of America states:
“In suits at common law, where the value in controversy shall exceed twenty dollars, the right to trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law.”
Congress, however, has chosen to deny this right to veterans and whistleblowers in lawsuits against criminal Federal agencies. After all, how can the government engage in criminal activities when those who report them are permitted to place the facts before a jury of ordinary citizens. Ordinary citizens would decide almost every appeal differently from the judges. The situation is so bad that several non-profit organizations established to help whistleblowers are telling Federal employees not to report agency wrongdoing, no matter how blatant. Their disclosures will probably not stop the wrongdoing, and they themselves will be fired or, as in my case, fired and blacklisted.
What are the facts in the case?
These facts are all found in the records of the MSPB and Court of Appeals for the Federal Circuit:
1. In November 1997, I was invited to Alaska and offered $20,000 to withdraw from a Federal civil service selection by an employee of the United States Forest Service, Tricia Wurtz, and an employee of the University of Alaska, F Stuart Chapin, III, a professor who had spent the Vietnam War at the University of California at Berkeley with a student deferment. The offer was confirmed by Wurtz’s supervisor, Hermann Gucinski. The offer was made because I am a veteran of the Vietnam War, and the persons involved did not think that they could get around my veterans’ preference in any other way.
2. After I reported the offer to the U.S. Office of Special Counsel and provided all of the evidence I had gathered, Wurtz was given a one week suspension without pay, and Gucinski was given a letter of reprimand. The Forest Service lost its right to hire new employees for several months, and the Director of the Pacific Northwest Research Station, Thomas Mills, was questioned by the Secretary of Agriculture and Chief of the Forest Service. Given the fact that Wurtz and Gucinski were prepared to misappropriate $20,000 in Forest Service funds earmarked for equipment purchases to pay the bribe, the punishments are ridiculous. Many people spend long terms in Federal prisons for misappropriating much less.
3. The investigator arranged a settlement agreement under which I could choose the employment in Alaska or an alternative employment in Olympia, Washington, which he recommended so that I could avoid “working in a hostile environment.” At the same time, Director Thomas Mills stated that he would not hire me for several other vacancies for which I was the best qualified applicant. I asked the investigator whether the Forest Service had arranged this agreement just to place me in a laboratory where reprisal could be taken against me during the probationary year. He said that I should trust the good will of the Forest Service personnel, but that the Office of Special Counsel would enforce its agreement.
4. About three months after I started work, a new program manager, Deanna Stouder, was appointed by Mills. She cancelled the purchase of the basic equipment I was supposed to buy, refused to allow me to continue to officially work overtime, and ordered my supervisor, Peter Bisson, to give me “assignments” that were considerably different from the duties in my job description. Finally, she convinced Bisson to change my satisfactory performance rating to unsatisfactory, after discussing the matter with him for several hours behind closed doors.
5. The unsatisfactory rating was justified by an anonymous peer review of an early draft of a report I had been assigned. The critique was unjustified, but Bisson said he could only go by what the anonymous reviewer had written. Before the MSPB hearing, it was revealed that Bisson himself had written the peer review and lied about its origin. The final version of the report received the highest praise from three expert reviewers, two of whom were selected by the Forest Service. Bisson did not like the report because it showed that a grant he was responsible for monitoring had been given to someone performing “junk science.” This report was later acknowledged to be a second disclosure protected under the Whistleblowers’ Protection Act.
6. I filed an agency grievance, which Station Director Mills failed to investigate. It was finally dismissed by the Department of Agriculture without any investigation, in violation of the grievance system. Because I wrote the grievance, Bisson tried to prevent me from taking a previously approved leave, which is a kind of reprisal that violates the law.
7. I was terminated for unsatisfactory performance one working day before the end of the probationary year for unsatisfactory performance, even though no evidence of unsatisfactory performance was ever introduced by the agency.
8. The Office of Special Counsel announced that it would not begin to investigate my complaint for at least seven months, so I took the appeal to the Merit System Protection Board. The MSPB is supposed to resolve such cases within 120 days. It took 23 months to get the initial decision, 15 months for the MSPB to decide not to review the decision, and almost another year for the appeal to the U. S. Court of Appeals for the Federal Circuit.
9. During the hearing before the MSPB, the administrative law judge, Sidney Farcy, found that the agency employees had lied by claiming that they did not know about my disclosures in Alaska. He also admitted that the report Bisson did not like was a second protected disclosure because it showed that the Forest Service was wasting $208,000 on a junk science project. The money was being paid to a friend of Bisson, who had allowed Bisson to appear as one of 11 authors of a seven page article in a fishing magazine, which, of course, can be used by Bisson to advance his own career.
10. Because the agency had failed to present any evidence, Sidney Farcy added his own arguments as a justification for not reinstating me. He stated that there were other reasons for firing me. The most important of these was that I had refused to falsify the report as demanded because it showed that the $208,000 was being wasted for junk science. Any reasonable person would conclude that if a report was a protected disclosure under the Whistleblowers’ Protection Act and the person who wrote it was fired for writing it and refusing to falsify its conclusions, then that person was fired for making a protected disclosure and not for any other reason. Less important “other” reasons were related to an assignment that was not even scheduled to begin until six months after I was fired. Farcy alleged that I had failed to arrange to conduct a part of this project in Alaska, as demanded. However, Dr. Mark Wipfli from Alaska had testified for almost a half hour at the hearing by telephone, confirming that we had made an agreement to conduct the research in Alaska. Farcy’s reason was therefore contrary to a fact that he should have known after listening to the testimony. Of course, he may have forgotten because he did not render his decision for another 15 months after the close of the last hearing rather than the 120 days allowed for a decision. He also alleged that I had not handed in a written list of numbers to my supervisor that was never asked for, even though these numbers, which were all zero, were discussed at length verbally.
11. After I was terminated, Stouder violated the Privacy Act by releasing false, derogatory information about me to agencies of the State of Washington to prevent me from being hired.
12. I have reported these matters to my representative in Congress, Brian Baird, and Senators Murray and Cantwell. None want to get involved. Why do they continue appropriating money to the Forest Service without first making sure that it is not being stolen or lost through fraud? The Forest Service lost a lawsuit shortly after I was fired because its research was grossly deficient in just the ways outlined in my objectionable report, and the Forest Service is subject to severe criticism from many governmental and non-profit organizations, including the General Accounting Office, Government Accountability Project, and the Sierra Club.
The recorded testimony shows that both Bisson and Stouder committed perjury during the hearing. Although Farcy took cognizance of this, he claimed in his decision that they had “argued convincingly.” Evidence from witnesses shown to be committing perjury is to be considered impeached under the Rules of Evidence.
Farcy dismissed my appeal under the Uniformed Services Employment and Reemployment Rights Act and Veterans Employment Opportunities Act out of hand, saying that there was no evidence that the Forest Service was motivated to violate my right to veterans’ preference. That is an odd conclusion considering the fact that the whole case began when the Forest Service employees offered me $20,000 to withdraw from the selection in Alaska so that they could avoid hiring a veteran with preference rights.
There are many more details to this case, all of which show a complete lack of competence, good faith, professionalism, and honesty by both the Forest Service and the MSPB. These were set forth in the submissions to the United States Court of Appeals and are available electronically to anyone who would like to see them. I also have paper copies of the submissions by the other side, represented by the U.S. Department of Justice. Although the law places the burden of proof on the Forest Service in such cases, the Justice Department lawyer argues simply that everything the Forest Service witnesses say must be considered true just because they said it. Evidence is not required. This is also the opinion expressed by the Court of Appeals.
If a Federal employee observes another employee stealing hundreds of thousands of dollars, endangering the public, or doing any number of other reprehensible and illegal things, it would be wise for him to keep quiet about it and pretend not to notice. If he reports it, he will probably be fired, and the guilty party will be permitted to continue stealing or committing the reprehensible acts. Mills was promoted to a deputy director position in Washington, D. C. and the persons involved in the bribe offer were all given fully satisfactory ratings for the period.
If you served in the Vietnam War, you are a special target for discrimination in the Federal civil service. Bisson spent the Vietnam War in college and graduate school in Oregon with a student deferment. Mills, Farcy, the two chief judges on the MSPB, and all three judges on the Court of Appeals who dismissed my appeal never served in the armed forces. Under these circumstances, should anyone recommend that a relative or friend join the armed forces?
In 1981, the Department of Justice estimated that about 10% of the entire Federal budget was being lost through fraud. The situation is much worse now, but the reprisal against Federal employees who report any wrongdoing are so severe, that there is little report of the overt theft that is going on. The next time a politician says that there is no money to provide essential services to veterans, ask why Congress keeps appropriating money to corrupt agencies that cannot even stop their own employees from stealing millions of dollars.