It was four years ago — my first was barely in school, the second was too young — that I first encountered Joan Young. Hers was a tough battle, and one that she as a pro se, took on on her own.

Today, many years later, the Merit Systems Protection Board has ordered yet again, that the USPS comply with its order enforcing a settlement agreement.

The matter was presumably “settled” in early 2009, yet Ms. Young had no choice but to persevere to see it enacted. She saw the agency’s failure to comply affirmed by an Administrative Judge; she appealed and prevailed.  On the second round, compliance was ordered by the AJ.  USPS still declined to act.  The matter went back to the Board for enforcement.  Again, the board demanded that USPS comply.  I am incredibly proud of this strong and determined woman. Fight on – it is for all of us, federal employee and taxpayer alike that these battles are important to be seen through to the end.

Those closest to me know why I’ve been silent these days. It’s been a busy, hectic period, one that leaves little time for careful reflection.

Beyond that though, there was a deep-seated belief that even if I left for a smidgen, somehow I was hopelessly wrong, that there is enough momentum for sincere change at the Merit Systems Protection Board (MSPB). That’s not a singular person endeavor. That’s an influx of voices saying that change MUST be made, and change MUST be made now.

There isn’t that, and I have a strong suspicion that it’s because that the same third of Americans that don’t know the name of the Vice President, simply couldn’t be bothered to learn about a crazy, illogical eensy-bitsy entity known as MSPB.  Add to that, the people who DO care about ethics and governance, and they too couldn’t be bothered to learn about a crazy, illogical eensy-bitsy entity known as MSPB either.

I’m seriously torn.  My personal belief is that I really should try publishing the story of how crazy federal service in general is.  That’s a book I’ve entitled “The Federal Institution: Voice of the Escaped.”  What I don’t have there though, is any sense that it could go viral, or get big enough to get to phase II, the part where I write about the Merit Systems Protection Board, its craziness, and why change is IMPERATIVE.

Instead, the impression I get, is that a handful of federal whistleblowers will knock down the autobiography, and purposely try to derail any success it may have.  Call me a cynic, but I call myself a realist.

So, even though this probably isn’t the order in which the story should be told, I’m going to start by writing about the Merit Systems Protection Board and the adventures we’ve all collectively taken through it.  The average citizen is going to have to digest lots of information quickly, but I’m optimistic that if written correctly, it can be done.

What I’ll need from everyone, is some support and help in marketing once it comes out.   We’ve needed this non-ivory tower, federal employee view for some time, and I’d like to see it published by July of this year.  As for me, I’m still mostly on the sidelines for now.  This site continues to be a resource for many, and I’m glad that those with the foresight (and voice) to have seen its value have kept it from going dark.

Best wishes for the New Year everyone.  I am there with you in spirit every step of the way, even when I cannot be here to write as prolifically as I had in the past.

Charlotte

The following is a brief article, and update of interest to many, from one of the site’s participants. Since he (or is it she?) wishes to remain anonymous, due to current legal actions, I’ve posted it under my own account.

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A little over a year ago I found myself in an unusual predicament. My union representative called me and said I’m being subpoenaed by the agency regarding my role as your representative. I thought, this can’t be right, can it? While thousands of federal employees are represented daily by their union rep or steward, no one ever second-guesses if a privilege exists between a bargaining unit member and their trusted union representative.

Believe it or not, up until August 15, 2011 there was no such privilege. In a recent federal court decision Bell v. Village of Streamwood (Case No. 10 C 3263) the federal courts ruled that as a matter of federal common law, such privileges extend to bargaining member employees and their union representatives. The reason why we have these privileges in the first place is to allow a person to confidently discuss all aspects of an issue, honestly, openly, and without fear of dissemination. The privilege is so strong that the courts have extended it to protect the sanctity of a marriage. After all, you wouldn’t want to come home and feel insecure about sharing information with your significant other. It made no sense why they hadn’t extended this privilege to union representatives sooner, because I wonder how many people before us were affected by the absence of such a ruling.

You can read the actual decision here: http://general-counselor.com/wp-content/uploads/2011/08/CaseFile_FederalLawEmployee-UnionRepresentativePrivilege.pdf

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- John Paul Jones
john.jones@civilservicechange.org

The subject annual report has recently been issued by the Merit System Protection Board. It is well-written, frank, and unlike many a governmental or corporate annual report, everything is not good, and not necessarily getting better.

Much to the credit of the Board, there is a straightforward admission that the performance goal of issuing timely decisions was not met. Identified as contributing factors for the delay in decisions is the increased number of veteran’s preference cases, as well as the additional time required to render careful, sound decisions based on consistent legal principles.

For FY 2011, it took an average of 213 days to process a petition for review. For a Petition for Enforcement, it was 288 days, and it should be emphasized that this is solely the time at the full Board level, in Washington, DC, and excludes the time at the Administrative Judge level.

So… if you’re wondering why your case is still pending, the report contains the acknowledgment of delay, the factors contributing for the delay, and possible avenues of remediation.

For the full report, please access here.

- John Paul Jones
john.jones@civilservicechange.org

Franz Kafka wrote “The Trial” in the early part of the 20th Century. It has resonated with many readers, so much so that the word “Kafkaesque” has entered the English language, and is generally defined as events that are surreal, nightmarish, and confusingly complex. The novel tells the story of Joseph K., who is arrested, and goes through a legal process, and is never told what his crime is. I first read the novel some forty years ago, and due to current circumstances, as it were, felt it merited a re-read. Kafka’s novel might well be an essential primer for anyone who is contemplating seeking peaceful redress to wrongs committed by a Federal Agency. One of my other activities is to review books at Amazon, and you can read my thoughts after the re-read here.

The Center for Disease Control and Prevention (CDC) in Atlanta violated my rights to employment as defined by the Veterans Employment Opportunity Act (VEOA). Please note that I did not say “allegedly” since, in our society, after a Court decision, that adjective is dropped. And that is the final decision of the MSPB (Merit System Protection Board). Where matters have taken a truly “Kafkaesque” turn is the CDC’s position on my latest case, involving overseas Public Health Advisor positions.

I applied for numerous Public Health Advisor positions under two announcement numbers. For all positions, they declared me a “non-veteran,” and processed my application on that basis. Of course, it is their policy (per the interrogatories I have recently received) not to tell the veteran that they have deleted his preference. (Hum… maybe Joseph K would understand). You have to initiate a legal action, and maybe, if you are lucky, in the Discovery process, you will be given the incriminating documents. And I was.

I spent a year in the field, in combat, during the height of the Vietnam War, as a Medical Corpsman. I had primary medical responsibility for 100 men, a line company of tanks, for over an eight month period. I consider myself a veteran. Most people do. Surprisingly, even the CDC says yes, you really are a veteran. They don’t even blame me for not submitting the proper paperwork (the form DD-214) – I did! Even the CDC’s own attorney has told a senior HR official that what they determined was “wrong,” and that HR should take corrective action. So… surely, that should be the end of that. The Agency was wrong, and offers remediation.

Ah, please remember, “surreal, nightmarish, and confusingly complex,” or, in word, Kafkaesque. The Agency admits a “mistake,” but is currently claiming that this mistake does not violate the VEOA. In one of the two incidents, it was a clerk who scratched through my veterans’ status, and wrote “NV” (not a veteran). No explanation needs to be provided. In the other case, it was the “computer” that declared me a non-veteran. I have repeatedly requested that they determine why the “computer” would do such a thing; all to no avail. My current Discovery request, still pending, is for the Source code for the program.

And, on this basis, the case will move forward. Joseph K would understand. Once his process started, it never stopped. So, pick a number, a realistic number, and consider that the ultimate tab will be, like those various weapons systems we purchase, much higher. Let’s pick $100,000 to $200,000 that the CDC will spend, on a case that if any Appellant brought it, would be immediately tossed as being “frivolous.” For sure, that amount of money will not balance the budget, but can our country sustain such frivolity?

- John Paul Jones
john.jones@civilservicechange.org

Once again it is Veterans Day, and this will be the second Veterans’ day that I will be posting on this website. My previous post can be viewed here.

Unlike many, I actually “won” my case before the MSPB. The Court ruled on two separate matters that the Center for Disease Control and Prevention (CDC) in Atlanta violated my rights as a veteran, as defined by the Veterans Employment Opportunity Act (VEOA), to employment. I have placed “won” in quotes because although this ruling was made over 18 months ago, there have been no consequences for the Agency, nor the specific individuals who were guilty of the wrongdoing. Fundamentally, the CDC administration has taken numerous steps to “stonewall” the MSPB decision. Instead of complying with the law, the VEOA, which fulfills the overwhelming sentiment of the American people, that veterans truly should be honored, and receive preference in employment, and instead of fulfilling President Obama’s Executive Order #13518 on the employment of veterans, they manufacture numerous creative, but highly implausible to utterly absurd reasons why they should not obey the MSPB’s order. Disrespect? Yes, it flows in many directions, and any reasonable observer would conclude that the CDC administration does not take the MSPB very seriously. The ultimate proof of that assertion is on the Office of Personnel Management’s (OPM) website. OPM produces an annual report on the number of veterans employed at the Federal Agencies. In the latest report, for FY 2010, overall, the Agencies DO comply with veterans preference requirements, with 26.3% of the workforce being veterans. The one dramatic outlier remains: the Department of Health and Human Services, of which the CDC is a part. Veterans are 6.2% of their workforce, almost 25% fewer veterans, on a percentage basis, that the civilian workforce, where no legal preference is granted.

A long time ago, and indeed it was, I was assigned for a year to the 1/69th Armor, 4th Infantry Division, from September, 1968 to August, 1969, in Binh Dinh province and in the Central Highlands of Vietnam. (Some pictures of those ancient times are posted here.) For 8 of the 12 months I was the Senior Medic in a line company of tanks and had medical responsibility for approximately 100 men, usually at remote locations, with no higher medical personnel immediately available. It was a lot of responsibility. I was very lucky, however. I survived. I was never wounded. I never contracted malaria. Although in an area heavily defoliated by Agent Orange (Highway 19, west of An Khe), so far, there appears to be no damage. And I don’t even feel I have “Post-Traumatic Stress Syndrome.” (maybe “Current Traumatic Stress Syndrome” from my continued fight to obtain my rights from the CDC ) Last year I wrote about two member of the 1/69th who were not as fortunate. Both committed suicide, my friend, Irv Harper, and Medal of Honor winner, Dwight Johnson.

When I returned to the United States in August, 1969 I was still in the Army, but a “short-timer.” I had 85 days left to serve. I was assigned to Fitzsimmons Army Hospital in Denver (it closed in 1999; it can be referenced at Wikipedia). There were actually reasonable Army leadership there; they knew we were “short-timers” (there were about 10 of us in similar situations), and decided to make the duty not onerous if we “stayed out of trouble.” We worked in Central Supply a few hours every day. But it was at Fitzsimmons that I had my very worst moments in the Army, yes, worse than the year of combat in Vietnam.

I was released from active duty on Christmas Eve, 1969, and started driving home to Pittsburgh in a snow storm. I had not returned to Denver until my MSPB hearing (technically it was in nearby suburban Lakewood, CO) on April 02, 2010, on the matter of, ironically, those “rights” earned, in part, in Denver. In my summation, I elected to tell the MSPB Judge the story of what those worst moments were, for few matters more underscore why our nation has granted veterans preference in Federal hiring. My wife of 28 years had never heard the story before. She turned away from the Judge, and started crying. Certainly an appropriate response. I cry myself when I think about it, and alas, now, write about it.

Three times, and fortunately it was only three, I drew the duty to go out to Stapleton Field, and help unload a C-141 filled with soldiers who were now all amputees. The plane would come in from Japan once a week or so; fortunately the “duty” rotated so that you were assigned it once every four weeks. The numbers varied: sometimes the plane had 20, sometimes 30, sometimes 40 stretchers. I had been lucky, and could still walk, and help carry those who could not. I couldn’t even say: ‘Welcome Home.’ The duty and the sorrow were beyond words. More depressing still was the realization that these were the amputees for the Western part of the US. Another plane landed weekly at Valley Forge, Pennsylvania, carrying the amputees in the East.

My wife was crying, in part, since she knew our nephew was serving in the Marines, in Afghanistan at the time, and I might have been describing a future event. Fortunately, for him, he also survived, whole. Others, as we know, have been the unlucky ones. It’s been more than four decades now, and I have been able to run, play, make love, carry my children in their backpacks, as a whole man. Fortunate, indeed.

The punishment should fit the crime, at least in that ideal world we fantasize about. Imagine a Judge being able to sentence the responsible members of the CDC administration to perform the duty I had, at the new location where the amputees are off-loaded. Even to have them work in a ward with them for a week. Empty a bedpan or two. I would suspect it would be a most rehabilitative type of punishment, and never again would they decide to circumvent veterans’ preference in order to hire their friends and relatives. Veterans then might truly be honored, not one day a year, but every day.

- John Paul Jones
john.jones@civilservicechange.org

I’ve never met Charlotte Yee in person. We “met” over the internet. It was actually my attorney who found this website, way back, in April, 2010. At the time I was very new, and even hopelessly naïve, about all aspects of the issues addressed of this site. The particular endeavor that I undertook I certainly did not seek out, and would strongly have preferred to avoid. But I realized that someone had lied to me, and that was the catalyst. Matters “snowballed,” and it became apparent, based on the evidence the Discovery process dumped in my lap, that the Center for Disease Control and Prevention (CDC) systemically violates veterans’ preference requirements in the hiring process. Of course, no one need really be privy to all those highly incriminating internal e-mails. One need only go to the Office of Personnel Management’s (OPM) website, and check the report entitled Employment of Veterans in the Federal Executive Branch, FY2010, and look at the numbers: the average percentage of veterans in the Federal service is 26.3%. At the Department of Health and Human Services, of which the CDC is a part, the average percentage is 6.2%, almost 25% fewer veterans than the civilian work force, where no legal preference is granted. Indeed, how can this be?

Charlotte Yee’s case was quite different than my own. She was a Federal employee; I was only an applicant. Her case involved sexual harassment. My case involved numerous individuals who routinely seek to circumvent veterans’ preference laws. Her case involved only ONE person, the male supervisor who was harassing her. Like me, she did not seek out her case, and would have preferred to avoid it.

Sexual harassment is in the news all too often. Today it is Herman Cain. In the last two years, virtually no reader could recall the number of Congressman and Senators who have been involved in sexual transgressions, many of them involving the improper use of their power. In ways, that is GOOD news, since in the days of yore, it was all too often unreported. Women, and almost always it is women, decided it best not to complain; the cards in the deck are stacked against the complainer.

Charlotte Yee peacefully sought redress, through the Court system, for the injury she sustained. She didn’t get the redress, and we are all the poorer for it. The Courts should be a counterbalance, and not an adjunct to power. It goes back to fundamental founding principles for our country: checks and balances. So, the more superficial view is that the “system” failed her. In reality, of course, the “system” is people, and at all too many junctures, it was a person who said: “the best thing to do is to do nothing,” “if I get involved, there will be retaliation against me,” and all the other excuses.

Charlotte Yee is now a “shadow” on the website, electing to take an inactive roll, and moving off in another direction in her life. Seems like I am the only person left standing, and there is no way I can take her place. I too have other interests and concerns, and cannot devote myself full time to what has been, so far, a most quixotic effort. I will, however, continue to post from time to time, concerning the particulars of my own cases, as well as thoughts on current events, and the rule of law.

An invitation is outstanding: to be a person who still can make a difference; to take an action with only the slimmest chances of success, like Rosa Parks once did, which might bring about true change, and a better society for themselves, as well as all of us. Thoughtful articles on the topics covered on this website are solicited from all concerned parties. Please email me if you’d wish to contribute.

John Paul Jones
john.jones@civilservicechange.org

The Merit Systems Protection Board sent a letter to counsel in my case last week. It was a rejection letter, sent 11 months after the motion. So much for the rocket docket, I suppose.

I do want to thank a huge number of people, but keeping it simple, first and foremost, my family and especially my husband, whom has been supporting of this investigative journey into the world of civil servants and their travails.  Next, David Colapinto.  That’s David Colapinto, the person, not the attorney, and not as a representative of either his law firm or the National Whistleblower Center.  The legal work, was excellent, but moreso the continued fight for justice and good outcomes for federal government, where we must fight to keep merit alive.  There are many others, Citizens for Responsibility in Washington, The Government Accountability Project, Public Employees for Environmental Responsibility, the National Whistleblowers Center and the Project on Government Oversight are just a few groups I’d like to acknowledge for their continued advocacy.  And then, there are the outspoken personal advocates, Robert MacLean, Julia Davis and Sibel Edmonds, again, just to name a few.  Their work has brought urgency to the forefront – a marketing feat in and of itself.  I close with those that remain private, the everyday quiet heroes that are critical to the movement.  There are too few of you, but the message is growing, and these are my personal hero favorites.  Among you, Jim Black, and fellow conspirator and level-headed analyst, John Paul Jones. 

Lastly, I would like to thank the Merit Systems Protection Board.  Cynics may wonder why.  After all, they can do no good for me personally.  But that’s not the point.  They can still do good for others, and I hope they will.  My view here is that what I saw were two eager well-qualified individuals confirmed to the Board.  Over time, the wayward culture got them, and not the other way around.  I still believe, in the manner of Philip Zimbardo, that good can overcome evil, but that the momentum and principles must be strong enough to change the outcome of the institution.  In other words, the peer pressure must be for goodness and merit, and not overwhelmingly for the opposite.  Change is coming, but it is slow, and we on the outside, must encourage good deeds when we see them.  To this goal, MSPB has put in a number of positive initiatives, sought feedback, and streamlined processes.

I close with this advisory.  I plan to go dark.  This site has more than served its purpose, and since its commencement, has been a resource to thousands, its primary usage as a reference site.  However, now is the time for me to move on and reinvent, and this site, where I’ve put my life online, will be a hinderance to the process.  I’ve done my duty to country, now it is time for someone else to take the reins.  Democracy is not free, we all have to work at it.

I lost the war, not the battle.

That’s not a mistake.  I lost the war.  Even if my personal battle for justice is won, we remain so distanced from our goal of a better civil service, that I wonder whether anything gained counts.  I can enumerate the gains determined individuals have made, but each and every one of those gains is countered by losses, infighting, jealousy and the like.  And then there’s power.  The power we worked so hard to oust, the cretins that put politics above merit, they’re winning again.  They’re winning because in our me-me-meism and inability to unite, we’ve let them through.

Why this sad post?  Because a week ago I received a reply brief from the Department of Justice in my ongoing 9th Circuit Court case.  Was it good?  Did it have merit?  No, it was so bad you have to wonder what alternate reality these DOJ attorneys live in.  But you see, IT DOESN’T MATTER what the brief actually said.  By their filing one, I lost.  And I don’t mean that only figuratively either.  Our courts are in crisis.  The judges in District and Circuit Court?  They’re overworked.  There’s a backlog of cases with 32 judicial emergencies declared.  Out of 874 total judgeships, 92, or more than ten percent, are vacant.  More than 50 nominees await confirmation, but the Senate doesn’t see fit to do its job of seating them.  What’s an overloaded judge to do?  Toss out the dockets where the appellant is the most disadvantaged and can’t fight back.  Laws don’t count if people don’t have the clout to insure that they’re enforced.

These days, Dave Colapinto, who represents me in a still-open reconsideration at the Merit Systems Protection Board, has been my hero. I’m literally so exhausted I can barely tie my shoes.  I don’t want to write.  I especially don’t want to write pleadings and briefs.  Somehow though, Dave gets me back in the game (after a few hissy fits on my side) and back moving at it, a personal trainer of sorts.  I am cheered because people like Dave still care about justice and making things better for others.  A year ago, I didn’t understand why Dave stood up for me.  After an atrocious loss in District Court (the judge didn’t even bother to address my complaint or properly process the CSRA side of the case; she just chose a topic of her own, ignored my legal argument and issued summary judgment in favor of the Agency), Dave took the time to read through the summary judgment briefs.  This is no small task.  I estimate he took 4-5 hours minimum to go through them.  He asked for nothing, but knowing he agreed that I had been had meant the world.

As for what now?  I turn in my reply brief this week, and wait for the Circuit Court to do the same thing to me that District Court did.  Of the last five mixed case appeals at the 9th Circuit, four were decided without hearing, all were decided in favor of the Agency.  I don’t even think it’s a matter of being represented or not.  Four of the five appellants had attorneys.  Despite Dave’s assurances that I’m on legally solid ground, I predict I’ll lose.  It’s a clear case of economics, not law.

Which brings us to this point: at this level, the new MSPB has been effective in alleviating the appellate courts’ workload.  Here’s a graphic from the Federal Circuit showing exactly that.  This is precisely what administrative courts are supposed to do.  Further, MSPB is a highly specialized tribunal.  Their job is to deftly decide how Civil Service Reform Act statutes are applied.  On this, I think the new Board is doing fine – when it gets any decisions out at all.

Before I started this journey, my inclination was to say, since MSPB and the Office of Special Counsel (OSC) aren’t doing their job, let’s just get rid of them.  Several things happened to change my mind.  For one, MSPB changed for the better.  Then for another, I got an insider’s view of US Court.  It’s not pretty, but I’m loathe to complain.  With civil cases (like an MSPB appeal) motions heard with criminal cases, an appellant understands the heartache and pain of those less fortunate; those without the means to get through the hearings.

On partisanship, it’s rampant in US Court.  Democrats are still reeling over the Bush v. Gore Supreme Court decision, one that left them feeling stripped of their democracy.  Troy Davis’ family wonders what might have been if there were more Sotomayors.  And then again, there’s Citizens United. . .

One of the revealing facts I learned while litigating in District Court is this:  Judges don’t get to be judges by taking chances or doing the right thing.  They get there by being shrewd and knowing how to remain loyal.  That’s just a fact of life. While I think that lifetime tenure is critical to independent decision making, for federal employees in court, their civil cases are the worst of the worst, the ones judges want most to dump without due process.  And why not?  A common everyday citizen can’t go up against unlimited resources from the ruling power of the land.  Besides, CSRA cases add a layer of complexity the courts don’t have resources to address.

Oh, and Department of Justice attorneys?  I don’t know if they’re more competent (at least when it comes to CSRA), but they are meaner.  Right now, a huge component of my loss comes from the realization that even though the Department of Labor has not challenged the MSPB reconsideration on either a factual or legal basis, DOJ continues to fight me in civil court.  Why I wonder, except again, for economics.  Not the economics of doing the right thing, conserving taxpayer resources, or sitting down at the table to discuss differences.  It’s the economics of  featherbedding at a loss to the taxpaying public.

What I’m trying to say is: give MSPB a chance.  They may yet put the Merit back into the Merit Systems Protection Board.  We have little to lose and the alternative, even when it’s not the Federal Circuit, isn’t a better option.

Remember back in March, when the Equal Employment Opportunity Commission solicited input from stakeholders? Those comments, name redacted where appropriate, have been posted, as has the Restrospective Review of Significant Regulations Final Plan.  I’m happy to note that comments from our readers were included in the review, including several from a prolific commenter/reader at this site, Lane.

EEOC notes that it continues to solicit feedback, which can be sent to public.comments.regulatoryreview@eeoc.gov.