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
Tel:
530-662-1985
Fax:
603-375-0478
E-mail:
rogyesq@aol.com