VETERANS PREFERENCE RIGHTS ARE IN
DANGER OF BEING EXTINGUISHED
There is compelling evidence that veterans’ preference, as provided for under the Veterans Preference Act of 1944, has long been under a systematic attack by the very government agencies who have the lawful responsibility for ensuring compliance with it. This assault on the law has been conducted surreptitiously and incrementally for many years, without notice to those whose rights under the law were being eroded. Only recently has this campaign to extinguish veterans’ rights come to light, and then only to a few. The warning came by way of the case of Ann S. Azdell, and Donald B Fishman v. Office of Personnel Management, currently pending before the Merit Systems Protection Board (MSPB).
The purported issue in Azdell was whether a new scoring formula adopted by OPM in June 1996 increased the relative value of veterans’ preference points beyond that mandated by the Veterans Preference Act (VPA). After more than two years of secretly conducted litigation, with no notice to veterans who were Administrative Law Judge (ALJ) applicants, the Chief Administrative Law Judge (CALJ) for the MSPB erroneously concluded that it did. As a result, there have been no new ALJ appointments made since April 22, 1999, the date of the judges decision.
Veteran ALJ applicants were first given notice of the case after the CALJ’s adverse Initial Decision had been made. A few of these veterans determined that the CALJ’s decision was demonstrably flawed, and that the case had been litigated and decided on the basis of false premises. The facts of the case as alleged are not in dispute, nor are the facts upon which allegations are based. More importantly, what the record shows is that the undisputed facts and allegations do not support the judge’s decision in this case. It should be noted that when the veteran intervenors entered the case and filed their arguments, neither Appellants nor OPM made any attempt to dispute their factual or legal arguments. In fact, OPM’s response was to change its position 180 degrees, as set forth in its Petition for Review, to agree with everything that the veteran intervenors said, and then issue a press release, praising its own efforts to preserve and protect veterans’ rights. Appellants’ response was to simply complain about the fact that not only had OPM changed its position in the Azdell case, but it had also changed its “historical position.” Appellants’ response was understandable. Suddenly, they had been doublecrossed by the Office of Personnel Management (OPM) which had previously presented little, if anything, by way of a defense. OPM’s response was also understandable, for it could no longer publicly deny what it had known from the beginning; Appellants’ contentions had no merit.
All pleadings in the Azdell case are now final and under submission to the MSPB. It appears that no decision from the MSPB will be forthcoming for six months, or perhaps even longer. When that decision is finally issued, it is reasonable to assume that it will be appealed to the Federal Circuit Court of Appeals, which will inevitably generate further delays. In the meantime, some of the veteran intervenors in the Azdell case are exploring options that include, but are not limited to, an action against OPM for engaging in prohibited personnel practices. Such actions, should they prove viable, would essentially be separate and distinct from the issues litigated in the Azdell case, and would be based on evidence that OPM violated federal law, which states that it may not:
“take or fail to take, recommend, or approve a personnel
action, if taking or failing to take the action would violate
a veterans’ preference requirement.”
There are a number of grounds for alleging that OPM has engaged in prohibited personnel practices in connection with this matter. One that is obvious after close review of the record, is that OPM engaged in a practice of discriminatory grading of veteran ALJ applicants’ test scores as a means of offsetting the effect of veterans’ preference points. There is presently credible evidence to at least establish a prima facie case in this regard, and there is little doubt that further corroborating evidence will be obtained.
Although much of the evidence at this point is circumstantial, it is compelling. The record of the Azdell case suggests that a significantly higher percentage of non-veteran ALJ applicants have Total Final Scores that are high ranking, than do veteran ALJ applicants, absent preference points. (See e.g., Chart attached to OPM’s PFR) Certain portions of the ALJ testing process are particularly susceptible to anti-veteran bias in grading. The Supplemental Qualification Statement (SQS), which accounts for 50 Percent of an applicant’s total score, is particularly susceptible in that it is a narrative about experience in which the applicant is likely to disclose his status as a veteran. Further, since the SQS is submitted together with the complete application, it appears clear that the grader(s) of the SQS would have access to the applicant’s entire file, which would certainly disclose an applicant’s status as a veteran. The Personal Interview (PI) exam, worth 20 percent of the total score, is similarly susceptible to anti-veteran bias, since the interviewing panel has the applicant’s entire file at the time of the interview. Both the SQS and the PI portions of the exam are subjectively graded, easily permitting the grader(s) to exercise anti-veteran bias. The Azdell case alone proves that not only does anti-veteran bias exist, it is institutional. These facts are merely a few examples among many which would allow anti-veteran bias in exam grading. The fact that there is even an opportunity for such bias to be applied is intolerable. In a situation such as this, where just a few tenths of a point can make the difference between getting an appointment and not getting one, and where a non-veteran can be illegally elevated over a veteran, reasonable testing protocols demand that there should be no opportunity for bias. If such opportunity is allowed to exist it will be taken.
These facts should be understood in a common sense context. There is no question that veterans’ preference is greatly disfavored by many, if not most, of those employed by, or attempting to be employed by, the federal government. If there was ever a doubt in this respect, it should be dispelled by the uncontrovertable facts of the Azdell case. In Azdell, the very fact that veteran ALJ applicants, whose rights were directly at issue, were kept in the dark about the case for over two years by OPM, is evidence of a callous disregard for the rights of veterans, if not outright anti-veteran bias. There is simply no other plausible explanation for deliberately failing to provide proper and timely notice to the affected veterans.
The importance of OPM’s failure to give notice to veterans in the Azdell case cannot be overemphasized in terms of its relationship to the issue of anti-veteran bias in the grading of ALJ examinations. Although no “reasonable” explanations for the failure to give veterans notice come easily to mind, or have even been suggested by OPM, other reasons suggest themselves:
1. 1. OPM knew that the Appellants’ attack on the scoring formula was not well founded, and would not succeed against a proper defense. However, OPM did not want, and did not provide a proper defense, because its goal was to eliminate veterans' preference, once and for all.
2. 2. OPM knew that veteran ALJ applicants would not only defend their rights under the VPA, but were likely to raise questions that would require embarrassing admissions by OPM. If the case had been properly defended from the outset, evidence would inevitably have come to light showing that not only was Appellants’ case without merit, but that OPM had been engaged in practices that were intended to diminish veteran’s rights. This case was merely the culmination of OPM’s efforts to avoid giving preference to veterans.
3. 3. OPM knew that at some point it would have to give veteran ALJ applicants notice of the Azdell case, but believed that delay would defuse the situation to OPM’s advantage because:
a. a. Most veteran ALJ applicants would have moved on to other career opportunities. Most attorneys can’t, or don’t want to, put their lives and careers on hold for more than two or three years, waiting for an appointment to an ALJ position that may never come.
b. b. Many, if not most, veteran ALJ applicants, including those who took the trouble to read the CALJ’s April 22, 1999 Initial Decision, would accept it as something they could do nothing about, even if it was wrong. At first blush the decision appears to be plausible. OPM is the expert and the final word in these matters, and if it, with its legions of lawyers, hadn’t been able to convince the judge that Appellants’ claims were not well founded, who could?
c. c. The vast majority of veteran ALJ applicants would conclude that it really didn’t matter, because their scores were not high enough to make it likely that they would get an appointment anyway. The undeniable fact is that only about the top five percent by score of all applicants who qualify for placement on the register, have any chance of receiving an appointment.
Even after OPM was finally forced by circumstances to give veteran ALJ applicants notice of the Azdell case, its penchant for secrecy and non-communication persisted. (See Declaration of F. William Roggeveen, attached. Exhibits omitted) Notwithstanding OPM’s public statements in support of veterans’ right, it has made clear to Intervenors that OPM’s interests in this matter are not aligned with ours. That much is understood and, in the absence of any choice, accepted. In the interim, it is our intent to present our case in the open light of day, and to seek all legal and equitable remedies.
It has become more clear in recent days that the Azdell case is not the beginning of an all out assault on veterans’ preference, it is the final stage of an attack on all veterans’ rights in a battle that has been underway for some time. Veterans’ preference, promised lifetime medical care, and compensation for Agent Orange and Gulf War illness are all parts of what is at stake. Once those veterans’ rights are finally taken away, we can be assured that they will not be easily restored, and who will believe any promises to do so? What happens to promised veterans’ benefits now, is of critical importance not only for veterans who have served, but to the country they sacrificed for. The future security of our great country is dependent on a belief by those who serve that the country’s promises will be kept, not begrudgingly or sparingly, not with parsing of words, but with a faithful commitment to those who have and will rely on those promises.
Your help is needed. Spread the word, and lend what support you can. Promises to those who served and sacrificed should be kept. We have all benefited from the service and sacrifice rendered by those who trusted us to keep our promises. Veterans’ rights should not be diminished in secret proceedings, eroded by limiting legislation, or abolished in the face of indifference. Together, we can make a difference. Failing to try demeans us.
FOR FURTHER INFORMATION CONTACT:
F. William (Bill) Roggeveen, Esq.
839 W. Lincoln Ave., No. 104
Woodland, CA 95695