Chairman Mitchell, Ranking Member Roe, and members of the Subcommittee, on behalf of the Tully Rinckey law firm and our Department of Veterans Affairs’ employee clients, thank you for the opportunity to present my evaluation of the U.S. Department of Veterans Affairs (VA) Office of General Counsel (OGC). As the founding partner of a law firm that deals extensively with the VA OGC and its Regional Offices, the matters of today’s hearing are of particular importance to me.

In order for you to better understand my insight into the Department of Veterans Affairs, I would like to provide you with some brief information about myself. I am a Major in the New York Army National Guard and a service connected disabled veteran, having served at Ground Zero after the attacks on the World Trade Center on September 11, 2001 and in Operation Iraqi Freedom. I established my law firm in Albany, NY in 2004, serving the legal needs of federal government employees in labor and employment law matters, including allegations of discrimination, whistleblower reprisal, disciplinary action, and USERRA claims. Today, my Washington, D.C. law office represents numerous Veterans’ Affairs employees fighting for their federal careers.

Through my professional legal dealings with the Office of General Counsel, as well as the dealings of my fellow attorneys, I come before you today with both general and specific examples of issues plaguing the VA legal department in the hopes that by shining a light on the ineffectual and often inhibitive actions taken by this Department’s lawyers, concrete corrective actions may be taken.

Ethics for Government Agency Counsel

Seventy-five years ago, the Supreme Court in Berger v. United States, issued an opinion implying that government attorneys must practice a higher standard of ethics than private attorneys.[1]  Following this decision, the judiciary and the American Bar Association embraced this implication by expressly requiring government attorneys to adhere to higher ethical standards.[2]  The judiciary in confronting cases dealing with these issues, has been concerned with (1) the continuation of needless litigation, (2) harassment, and (3) the pursuit of a result contrary to justice and the public interest.[3]  Most notably, in Freeport-McMoRan Oil & Gas Co v. FERC, the United States Court of Appeals for the District of Columbia Circuit, in citing Berger, found that a government lawyer "is the representative not of an ordinary party to a controversy,” “but of a sovereignty whose obligation . . . is not that it shall win a case, but that justice shall be done."[4] The court also found that government agency attorneys may be held to higher standards than attorneys for private litigants.”[5]  As attorneys for the government, they have a “responsibility to seek justice," and "should refrain from instituting or continuing litigation that is obviously unfair.”[6]  Also significant was the United States Court of Appeals for the Tenth Circuit in Bulloch v. United States, in which concealment of information by the government during discovery was "made even more egregious" by the government lawyer's heightened responsibility to seek justice and to develop a full and fair record.[7]  This type of responsibility was properly exercised in connection with the post-trial litigation in United States v. Theodore F. Stevens, in which the Department of Justice asked a federal judge to drop all charges against former Sen. Ted Stevens of Alaska. A review of the case indicated that certain information should have been disclosed to the defense for use at trial and that it was in the interests of justice to dismiss the indictment and not proceed with a new trial.  

The American Bar Association, under Ethical Consideration 7-14 has also provided appropriate guidance with regard to this issue, which states:

A government lawyer who has discretionary power relative to litigation should refrain from instituting or continuing litigation that is obviously unfair. A government lawyer not having such discretionary power who believes there is lack of merit in a controversy submitted to him should so advise his superiors and recommend the avoidance of unfair litigation. A government lawyer in a civil action or administrative proceeding has the responsibility to seek justice and to develop a full and fair record, and he should not use his position or the economic power of the government to harass parties or to bring about unjust settlements or results.[8]

The Federal Ethical Considerations espoused by the Federal Bar Association contain similar commentary, which define the federal lawyer’s professional obligation as “the promotion under law and applicable regulations of the public interest entrusted to the department, agency or other governmental agency of his employment.”[9] The prevailing attitude is perhaps best represented by one of the mottos on the walls of the Department of Justice, which reads, "The United States wins its point whenever justice is done its citizens in the courts."[10] 

Failures to Uphold Ethical Considerations

Based on the Supreme Court’s holding in Berger as well as the case law espoused in a multitude of other jurisdictions and the appropriate ethical rules set forth by the American Bar Association and Federal Bar Association, attorneys representing government agencies have a heightened ethical duty to seek justice and develop a full and fair record in handling legal matters.  The tendency of agency attorneys at the Department of Veterans Affairs to treat managers as private clients and to zealously represent them as clients without any concern for the person aggrieved in an employment action is completely in contravention of the ethical duties required of government attorneys.  The practice of agency attorneys in protecting managers at all costs and contributing to the continuation of needless litigation reflects a complete disregard for the principles reflected in the appropriate ethical rules concerning the public interest and in seeking justice.

The current practice of the Department of Veterans Affairs, in using attorneys in management decisions as a form of legal strategy, is an additional example of agency attorneys acting in contravention of their ethical duties as attorneys for the government. Frequently, agency attorneys act as decision makers in adverse actions or discipline actions in an attempt to create an attorney-client privilege with managers if the employee pursues litigation.  

Furthermore, it may isolate the government from liability or protect communications that may be discriminatory or retaliatory. These results do not show any concern for the public interest and are clearly not in accordance with Agency attorney’s heightened ethical duty to seek justice and develop a full and fair record in those cases that they handle for the government.  

In my firm’s dealings, OGC representatives have utilized numerous stonewalling techniques, often mimicking the corporate litigation counsel at BP®, AIG® or Enron®. In fact, instances include OGC engaging in unnecessary legal discovery requests with private counsel, refusing to submit discovery despite private counsel legal requests and failing to adhere to key legal deadlines. This needless and borderline unethical action often lengthens the claim process, causing VA employees, many of whom are still employed by the VA during this time, to incur unnecessary legal costs and emotional stress. Additionally, the reputation of the VA OGC continues to deteriorate.

One such example includes the pending case of Frank Gonzalez v. Shinseki, Sec’y, Dep’t of Veterans Affairs; EEOC No. 570-2010-00541X (2010), in which the VA attorney overly objected to interrogatories sent to the agency and failed to provide any substantive responses thereto. This legal maneuver will force our attorneys to produce and file a motion to compel to get even our most basic questions answered. Due to this, the client will be forced to incur greater legal costs in order to pursue his claims of workplace discrimination and will further tax the already overburdened Equal Employment Opportunity Commission.

In one particular case earlier this year, Charlene Ng Tang v. U.S. Department of Veterans Affairs, MSPB Docket No.: AT-0752-10-0514-I-1, a VA hospital employee was demoted based on charges of misconduct and our firm appealed to the Merit Systems Protection Board (MSPB). The VA representative wholly failed to respond to our discovery requests and our motion to compel. Further, VA Attorneys untimely served the VA’s request for discovery, which was fraudulently dated about a week before the postmark, a date after the deadline.

Finally, our firm has had numerous issues with the VA OGC not complying with the terms of settlement agreements or not processing settlements altogether. In an EEO complaint in which the victim was sexually harassed by her direct supervisor, the VA settled the claim.  However, the Agency failed to follow the terms of the settlement agreement.  Further, the OGC refused to take any responsibility for the situation and specifically blamed its EEO office for the breach in agreement.  Additionally, after admitting there was a breach, the OGC approved the EEO office moving this complainant back to the building where the harassment had occurred less than one year earlier, and the alleged harasser was still located, despite being told that the complainant did not feel comfortable being placed in close vicinity to this former supervisor.

In the case of Patrice Robinson v. U.S. Department of Veterans Affairs, EEOC Case No.: 570-2009-00634X, our firm hounded VA attorneys to complete terms of settlement including expunging required personnel files, timely processing the client’s resignation, and completing her performance appraisal. Our firm had to file an appeal alleging breach of the settlement agreement before terms were finally complied with appropriately. This not only caused greater stress on the client, but greater legal costs and time.

In all of these instances, the unprofessional conduct displayed by the VA lawyers translated into greater financial costs for the client, a prolonged legal process, and greater stress not only on the client, but to all VA staff members involved. Furthermore, due to OGC tactics, VA employees are often denied quality legal representation because plaintiff legal counsel actively avoid accepting VA cases to avoid the legal and financial burdens of working with the VA OGC.   

Failing to Uphold USERRA Statutes

The Uniformed Services Employment and Reemployment Rights Act of 1994[11] (USERRA) was enacted to protect the employment of this country’s civilian soldiers while they are fulfilling their military responsibilities and requirements. In 2003, the United States Court of Appeals for the Federal Circuit (“Federal Circuit”) found that, prior to the change in the military leave law, which was effective on December 21, 2000, federal agencies improperly charged members of the U.S. National Guard and Reserves military leave for non-workdays that occurred within a period of assigned military duty.[12]

Thus, thousands of federal civilian employees, including Veterans Affairs employees, were charged military leave on days federal agencies did not require them to work, i.e., weekends and/or holidays. In order to remedy these wrongs, federal employees who have improperly charged in this manner are able to file claims with the MSPB against the violating agency in order to recover lost leave or salary.  See 38 U.S.C. § 4324. These claims often require the assistance of attorneys for the VA employees, due to the difficulty in obtaining old military and civilian pay records, including leave and earning statements, military orders, or time and attendance records to prove leave loss.

In these cases, our attorneys have found that the VA OGC often maliciously extends the legal process, causing VA employees to incur further financial loss and legal stress. By exhausting the litigation process until the day before, or even hours before the actual hearing, OGC continually forces private attorney legal bills to increase. More striking, after initial and prolonged stonewalling, the VA often ultimately provides the veteran with the relief originally requested minus the attorney costs and litigation expenses authorized by law. See 38 U.S.C. § 4324(c)(4).

This strategy, known as "mooting," means that the VA is under no obligation to pay attorney fees despite the clear stalling techniques that it had employed throughout the case. Thus, while the client receives back pay or leave, all legal costs associated with filing and proving the claim, including attorneys’ fees generated by the VA’s "mooting" strategy, are not reimbursed. This is both costly and taxing to the client, private law firms, as well as to the Department of Veterans Affairs, resources of which are diverted from settlement to irrelevant and unnecessary legal strategizing.  The end result is that federal employee law firms like mine refuse to accept VA employees as clients or alternatively charge a higher initial retainer because of the outrageous legal strategies of the VA OGC thus denying VA employees access to the legal system and equal justice under the law.

For example, in the case of Richard Plezia v. Department of Veterans Affairs, MSPB Docket Number: CH-3443-05-0404-I-2, the agency restored our client [Richard Plezia] thirty-four (34) days of Annual Leave. The Agency’s unwillingness to provide any attorney fees was evidenced in its Response to the Acknowledgement Order.  (See attached, Exhibit A).  The Department of Veterans Affairs specifically stated that if our client elected to proceed with the claim through the MSPB and requested attorney fees, “the Agency provides notice that it will resist any petition for the same for the reason that the Appeal is an unnecessary, needlessly confrontational and wasteful method of resolving the dispute.” This clear retaliation against our client for exercising his legal rights has a chilling impact on law firms who represent VA employees, as well as the VA employee’s coworkers who become afraid to file legal proceedings because of the costs involved.

This same legal strategy, in which the VA declines to settle the leave claim at the outset and then later “moots” the case by giving the client their demands to avoid paying the client’s attorney fees, is often repeated. In Gonzalo Solis v. Department of Veterans Affairs, MSPB Docket Number NY-4324-10-0063-I-1, the claim was dismissed as moot after the Agency restored the client [Gonzalo Solis] five (5) days of Annual leave. Consequently, $2,010.00 associated in legal costs was incurred. Further, in Barry Phillips v. Department of Veterans Affairs, MSPB Docket Number: PH-3443-05-0103-I-1, two (2) days of Annual Leave was restored and the claim was dismissed as moot after $1,440.00 in legal costs were garnered.

In many of these instances, legal costs substantially outweighed the leave or leave payment returned to the Veterans Affairs employee because of the outrageous legal tactics employed against these VA employees who continued to service in their National Guard and Reserve.

The cases cited in this testimony are just the tip of the iceberg of improper conduct by VA lawyers and are used to provide some specificity to the abstract allegations made herein.  Similar situations can be cited in every other employment law related field of practice.

Conclusion

In order to alter the current course of the Department of Veterans Affairs Office of General Counsel, my firm believes that VA OGC and their regional offices should be held to the similar standards and scrutiny currently followed by the Department of Justice (DOJ). The DOJ’s Office of Professional Responsibility (OPR) reports directly to the Attorney General and investigates allegations of misconduct concerning DOJ attorneys (this office is separate from the Inspector General’s office further stressing the importance of high ethical standards for DOJ lawyers). OPR’s objective is to ensure that DOJ attorneys act in accordance with the high professional standards not only expected of government attorneys, but of the nation’s principal law enforcement agency.

At this time, it would greatly benefit the Department of Veterans Affairs if both employees and private plaintiff counsel were able to file complaints of alleged misconduct to a separate and impartial office answerable directly to the Secretary. This would both deter VA OGC from acting unethically and give the Department as a whole a new found legitimacy. By doing so, the VA OGC could become a model of standard ethical practice across all federal agencies.

Thank you once again for the opportunity to communicate my insight on the U.S. Department of Veterans Affairs Office of General Counsel, the subcommittee’s time and consideration is greatly appreciated. I look forward to working with the committee in future endeavors to correct the issues facing VA employees in their attempts to settle their labor and employment disputes with the Office of General Counsel.

Exhibit A: Richard Plezia v. Department of Veterans Affairs

[1] Berger v. United States, 295 U.S. 78 (1935) (finding, “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore in a criminal prosecution is not that is shall win a case, but that justice shall be done.”)

[2] C. Mark Bain, The Ethics of Government Attorneys: A Victory in the Pursuit for Justice, 20 J. Legal Prof. 183 (1995).      

[3] See, e.g., Gray Panthers v. Schweiker, 716 F.2d 23, 33 (D.C. Cir. 1983) (including a higher duty because the client is not only the agency but also the public at large); Douglas v. Donovan, 704 F.2d 1276, 1279-80 (D.C. Cir. 1983) ("[G]overnment attorneys . . . have special responsibilities to both this court and the public at large."); United States v. Sumitomo Marine & Fire Ins. Co., 617 F.2d 1365, 1370 (9th Cir. 1980) ("The effectiveness of and need for harsh measures is particularly evident when the disobedient party is the government."); EEOC v. Waterfront Comm'n of New York Harbor, 665 F. Supp. 197, 201 (S.D.N.Y. 1987) ("[T]his case should serve to put government attorneys on notice that they are not exempt from the federal rules [of civil procedure] and that they will be held to the highest standards of the Bar."); Jones v. Heckler, 583 F. Supp. 1250, 1257-58 n.7 (N.D. Ill. 1984) ("[C]ounsel for the United States has a special responsibility to the justice system."); Braun v. Harris, Unempl. Ins. Rep. (CCH) P17,070, at 2499-2500 (E.D. Wis. Apr. 30, 1980) ("Government attorneys, however, by virtue of their unique position, owe a greater responsibility to the justice system. The courts have come to expect and have righly [sic] demanded a higher degree of candor from government attorneys."); EEOC v. Datapoint Corp., 457 F. Supp. 62, 65 n.10 (W.D. Tex. 1978) ("Because of the peculiar power of the government litigator, he is subject to ethical consideration beyond the ordinary litigator.").

[4] Freeport-McMoRan Oil & Gas Co. v. FERC, 962 F.2d 45, 47 (D.C. Cir. 1992).

[5] Id. at 47.

[6] Id. 

[7] Bulloch v. United States, 763 F.2d 1115, 1125 (10th Cir. 1985), cert. denied, 474 U.S. 1086 (1986) (McKay, J., dissenting) (concealment of information by the government during discovery was "made even more egregious" by the government lawyer's responsibility to seek justice and to develop a full and fair record).

[8] See Also, ABA Comm. On Ethics and Professional Responsibility, Formal Op. 342 (1975) (Canon 7 recognizes that “the duty of all government lawyers [is] to seek just results rather than the result desired by a client.”).

[9] FEC 7-2; See Also FEC 8-1 (“paramount consideration is due to the public interest.”).

[10] Catherine J. Lanctot, The Duty of Zealous Advocacy and the Ethics of the Federal Government Lawyer: The Three Hardest Questions, 64 S. Cal. L. Rev. 951 (1991). 

[11] Pub.L. 103-353, codified as amended at 38 U.S.C. §§ 4301-4335 (2010). 

[12] Butterbaugh v. Department of Justice, 336 F.3d 1332 (Fed. Cir. 2003).