[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]





                   EVALUATING THE U.S. DEPARTMENT OF
               VETERANS AFFAIRS OFFICE OF GENERAL COUNSEL

=======================================================================

                                HEARING

                               before the

              SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

                                 of the

                     COMMITTEE ON VETERANS' AFFAIRS
                     U.S. HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 30, 2010

                               __________

                           Serial No. 111-88

                               __________

       Printed for the use of the Committee on Veterans' Affairs











                                  ______

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                     COMMITTEE ON VETERANS' AFFAIRS

                    BOB FILNER, California, Chairman

CORRINE BROWN, Florida               STEVE BUYER, Indiana, Ranking
VIC SNYDER, Arkansas                 CLIFF STEARNS, Florida
MICHAEL H. MICHAUD, Maine            JERRY MORAN, Kansas
STEPHANIE HERSETH SANDLIN, South     HENRY E. BROWN, Jr., South 
Dakota                               Carolina
HARRY E. MITCHELL, Arizona           JEFF MILLER, Florida
JOHN J. HALL, New York               JOHN BOOZMAN, Arkansas
DEBORAH L. HALVORSON, Illinois       BRIAN P. BILBRAY, California
THOMAS S.P. PERRIELLO, Virginia      DOUG LAMBORN, Colorado
HARRY TEAGUE, New Mexico             GUS M. BILIRAKIS, Florida
CIRO D. RODRIGUEZ, Texas             VERN BUCHANAN, Florida
JOE DONNELLY, Indiana                DAVID P. ROE, Tennessee
JERRY McNERNEY, California
ZACHARY T. SPACE, Ohio
TIMOTHY J. WALZ, Minnesota
JOHN H. ADLER, New Jersey
ANN KIRKPATRICK, Arizona
GLENN C. NYE, Virginia

                   Malcom A. Shorter, Staff Director

              SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

                  HARRY E. MITCHELL, Arizona, Chairman

ZACHARY T. SPACE, Ohio               DAVID P. ROE, Tennessee, Ranking
TIMOTHY J. WALZ, Minnesota           CLIFF STEARNS, Florida
JOHN H. ADLER, New Jersey            BRIAN P. BILBRAY, California
JOHN J. HALL, New York

Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public 
hearing records of the Committee on Veterans' Affairs are also 
published in electronic form. The printed hearing record remains the 
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both printed and electronic versions of the hearing record, the process 
of converting between various electronic formats may introduce 
unintentional errors or omissions. Such occurrences are inherent in the 
current publication process and should diminish as the process is 
further refined.









                            C O N T E N T S

                               __________

                             June 30, 2010

                                                                   Page
Evaluating the U.S. Department of Veterans Affairs Office of 
  General Counsel................................................     1

                           OPENING STATEMENTS

Chairman Harry E. Mitchell.......................................     1
    Prepared statement of Chairman Mitchell......................    17
Hon. David P. Roe, Ranking Republican Member.....................     2
    Prepared statement of Congressman Roe........................    17

                               WITNESSES

U.S. Department of Veterans Affairs, Hon. Will A. Gunn, General 
  Counsel........................................................    10
    Prepared statement of Mr. Gunn...............................    25

                                 ______

Tully, Matthew B., Esq., Founding Partner, Tully Rinckey PLLC, 
  Albany, NY.....................................................     3
    Prepared statement of Mr. Tully..............................    18

                   MATERIAL SUBMITTED FOR THE RECORD

Followup Information and Post-Hearing Questions and Responses for 
    the Record:

    U.S. Department of Veterans Affairs 2009 and 2010 Employee 
      Survey and Response Averages for the Office of General 
      Counsel....................................................    30
    Hon. Harry E. Mitchell, Chairman, Subcommittee on Oversight 
      and Investigations, to Hon. Eric K. Shinseki, Secretary, 
      U.S. Department of Veterans, letter dated July 30, 2010, 
      and VA responses...........................................    42

 
                   EVALUATING THE U.S. DEPARTMENT OF
                       VETERANS AFFAIRS OFFICE OF
                            GENERAL COUNSEL

                              ----------                              


                        WEDNESDAY, JUNE 30, 2010

             U.S. House of Representatives,
                    Committee on Veterans' Affairs,
              Subcommittee on Oversight and Investigations,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 10:05 a.m., in 
Room 334, Cannon House Office Building, Hon. Harry E. Mitchell 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Mitchell, Adler, Roe, and Bilbray.

             OPENING STATEMENT OF CHAIRMAN MITCHELL

    Mr. Mitchell. Good morning, and welcome to the Veterans' 
Affairs Subcommittee on Oversight and Investigations' hearing 
on Evaluating the U.S. Department of Veterans Affairs Office of 
General Counsel.
    And this meeting will come to order. This is June 30th, 
2010.
    I ask unanimous consent that all Members have 5 legislative 
days to revise and extend their remarks and that statements may 
be entered into the record. Hearing no objection, so ordered.
    Each day, the U.S. Department of Veterans Affairs (VA) 
executes laws, regulations, and policies that have a profound 
effect on how the Department conducts its business and assists 
our Nation's veterans.
    The General Counsel serves as the VA's Chief Legal Officer 
as the Office provides legal advice to the Secretary and all 
organizational components of the Department. It is no secret 
that the VA's General Counsel or OGC plays a critical role in 
the decision-making and oversight of the VA.
    The OGC is a unique and complex office within the VA and 
its full range of responsibilities including legal, litigation, 
legislative, and regulatory activities is distributed among 
seven professional group staffs, each headed by an Assistant 
General Counsel.
    Each of these groups has the expertise in specific subject 
areas and is responsible for providing legal advice to program 
officials, reviewing proposed regulations and directives, and 
handling litigation involving VA programs.
    Additionally, the OGC operates 22 field offices which 
comprise almost two-thirds of OGC's workforce. With the General 
Counsel's widespread workforce, the OGC must promote 
consistency and uniformity of its recommendations that lead to 
executive decisions that directly impact millions of veterans.
    We have heard many times that the OGC has repeatedly used 
time extensions from the court in order to keep pace with their 
workload. However, their workload is so great that it continues 
to remain an ongoing issue.
    Additionally, we have too often heard from various 
Department entities that documents crucial to this 
Subcommittee's work are tied up with the General Counsel's 
Office or that they are restricted by the OGC for release.
    Though OGC insists that the oversight responsibilities of 
Congress deserve respect, there is often at times a tension 
between the oversight responsibility and the Agency's needs to 
protect certain predecisional information from disclosure out 
of concern that it could have a chilling impact on the free and 
open internal discussion and debate leading to the provision of 
advice needed by Agency decision-makers.
    As the VA OGC deals with these challenges, they must still 
continue to give timely and balanced legal recommendations that 
will benefit the needs of our veterans and the Department of 
Veterans Affairs.
    Determining an objective standard to evaluate a subjective 
trait is a challenge. Nonetheless, the General Counsel needs to 
bring reform to the VA's Office of General Counsel.
    I look forward to hearing from the General Counsel the 
challenges the office is facing as well as solutions that are 
being implemented to correct long-standing issues within the 
office.
    [The prepared statement of Chairman Mitchell appears on p. 
17.]
    Mr. Mitchell. And before I recognize the Ranking Republican 
Member for his remarks, I would like to swear in our witnesses. 
I ask that all witnesses stand and please raise their right 
hand from both panels.
    [Witnesses sworn.]
    Mr. Mitchell. Thank you.
    Now I would like to recognize Dr. Roe for opening remarks.

  OPENING STATEMENT OF HON. DAVID P. ROE, RANKING REPUBLICAN 
                             MEMBER

    Mr. Roe. Thank you, Mr. Chairman.
    According to the VA Web site, the mission of the VA Office 
of General Counsel is to identify and meet the legal needs of 
the Department of Veterans Affairs. Its primary objective is to 
ensure the just and faithful execution of the laws, 
regulations, and policies that the Secretary has responsibility 
for administering and by doing so, enable a Department to 
accomplish its mission of service to our Nation's veterans.
    In recent years, Congress has increased the budget 
allocation to the Office of General Counsel to assist them in 
meeting this mission. With the current 9.2 percent budget 
increase for fiscal year 2010 and the requested 9.6 percent 
increase for fiscal year 2011, it is appropriate to call this 
hearing to review the work of the Office of General Counsel and 
to make certain that the product produced by that office is 
providing the best benefit to our Nation's veterans and the 
American taxpayer.
    Over the past several years, this Committee has reviewed a 
number of contracting issues where it was apparent that the 
guidance provided by the VA General Counsel was insufficient, 
inaccurate, or lacking.
    Recent VA Office of Inspector General (OIG) reports on 
contracting have shown deficiencies within the Office of 
General Counsel with respect to supporting contract management.
    I am interested in hearing from the General Counsel on how 
its resources have been allocated to improve contract 
management at the Department.
    I also want to know if the General Counsel plans to improve 
the relations between the Contracting Officers and the Regional 
General Counsel so that they actively seek their advice on 
major contract awards prior to an award being granted.
    Does the General Counsel perform pre- and post-award 
contract reviews on all contracts?
    I am also interested and concerned about delays we 
frequently hear about during meetings on the concurrence 
process for directives issued by the Veterans Health 
Administration.
    Often we are told that a directive is being held up by the 
General Counsel's Office. These delays in providing legal 
opinions can lead to delays in updated treatment information 
being sent to the VISNs (Veterans Integrated Service Networks) 
and medical facilities and may cause problems with patient 
care.
    The bottom line here is that we make certain that the 
resources Congress provides to VA are being allocated properly 
in order to provide the most benefit for the veterans and the 
American public at the best possible value.
    Given the current track record of the General Counsel in 
contracting matters, I am uncertain if this is the case.
    Mr. Chairman, thank you for holding this and I yield back 
my time.
    [The prepared statement of Congressman Roe appears on p. 
17.]
    Mr. Mitchell. Thank you.
    Mr. Bilbray.
    Mr. Bilbray. I have no opening statement, Mr. Chairman.
    Mr. Mitchell. Thank you.
    At this time, I would like to welcome panel one to the 
witness table. Joining us on our first panel is Matthew Tully, 
Founding Partner of Tully Rinckey, PLLC.
    I ask that all witnesses from both panels stay within 5 
minutes for their opening remarks. Your complete statements 
will be made part of the hearing record.
    And I also would like to let everybody know that votes may 
be called at any time, so we may have to go vote, and come 
back.
    Thank you.
    Mr. Tully.

 STATEMENT OF MATTHEW B. TULLY, ESQ., FOUNDING PARTNER, TULLY 
                    RINCKEY PLLC, ALBANY, NY

    Mr. Tully. Thank you.
    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, I would like 
to thank you for the opportunity to present my evaluation of 
the VA Office of General Counsel.
    As the Founding Partner of a law firm that deals 
extensively with the VA OGC and its Regional Offices on 
employment law issues, the matter of today's hearing is of 
particular importance to me.
    Seventy-five years ago, the Supreme Court issued an opinion 
implying that government attorneys must practice to a higher 
standard of ethics than private attorneys. Unfortunately, my 
fellow employment law attorneys and I have witnessed violations 
of the ethical standards for government lawyers laid out by the 
Supreme Court and various Bar associations, including the 
tendency of VA lawyers to treat managers like private clients, 
zealously representing them without any concern for the person 
aggrieved in an employment action.
    For example, a fellow attorney had witnesses privately 
badgered about their testimony by a VA lawyer prior to a 
hearing. A VA lawyer threatened disciplinary action against VA 
employee witnesses if their testimony did not conform to the 
Agency's desires.
    In my firm's dealings with the VA Office of General 
Counsel, VA lawyers have utilized numerous litigation tactics 
that would have made the lawyers for BP', 
AIG', or Enron' proud.
    In one case earlier this year, our client was demoted based 
on charges of misconduct and our firm appealed the VA decision 
to the Merit Systems Protection Board (MSPB).
    The VA lawyer in this case failed to respond to our 
discovery requests and even our motion to compel discovery. 
This unprofessional conduct translated into greater financial 
cost for our client.
    Due to the VA's tactics on employment law matters, VA 
employees are often denied quality legal representation because 
law firms like mine that handle Federal-sector employment law 
issues avoid accepting VA cases because of the legal and 
financial burdens of working with the VA lawyers or 
alternatively charge VA clients higher initial retainers.
    My firm has represented many VA employees who enforce their 
legal rights pursuant to the Uniformed Services Employment or 
Reemployment Rights Act of 1994, also known as USERRA.
    In 2003, the Court of Appeals for the Federal Circuit found 
that Federal agencies improperly charged members of the 
National Guard and Reserve military leave for non-workdays. In 
order to remedy these wrongs, hundreds of VA employees who had 
been improperly charged military leave were able to file claims 
with the Merit Systems Protection Board in order to recover 
lost benefits.
    These claims often require the assistance of employment law 
attorneys like myself due to the difficulty in obtaining 
evidence needed to win the case. It has been my experience in 
these cases that VA lawyers often maliciously extend 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 on the merits, VA 
lawyers force legal bills to increase.
    More striking, after some initial stonewalling, the VA 
ultimately provided the veteran with the relief originally 
requested minus attorneys' fees and litigation costs. This 
strategy known as mooting means the VA avoids paying attorneys' 
fees despite the clear use of stalling tactics. This is both 
costly and taxing to the VA employee, the law firms that 
represent these employees, as well as the VA whose resources 
are diverted from complying with the laws that protect veterans 
to irrelevant legal strategizing.
    This tactic serves no legitimate purpose but to discourage 
attorneys like myself from taking these cases on behalf of VA 
employees.
    For example, in one case, the VA restored to our client 
shortly before a hearing 34 days of annual leave. However, the 
VA lawyer specifically stated in writing that if our client 
elected to proceed with the claim through the MSPB as allowed 
by law and requested attorneys' fees, the VA would ``resist any 
petition for the same for the reason that the appeal is 
unnecessary, needlessly confrontational, and a wasteful method 
of resolving this dispute.''
    This clear retaliation against our client for exercising 
his lawful right had a chilling impact on law firms who 
represented VA employees, as well as other VA employees who 
became afraid to file legal proceedings to recover damages from 
the VA's unlawful employment practices because of the costs 
involved in such actions.
    In many of the claims that did get filed with the MSPB, 
legal costs substantially outweighed the payment returned to 
the employee for the wrongs they suffered due to the outrageous 
legal tactics of the VA's lawyers.
    In order to alter the current course of the VA Office of 
General Counsel, I believe they should be held to the same or 
similar standard and scrutiny currently followed by the U.S. 
Department of Justice (DoJ). The Department of Justice Office 
of Professional Responsibility reports directly to the Attorney 
General and investigates allegations of misconduct concerning 
DoJ attorneys.
    This would both deter VA lawyers from acting unethically 
and give the Department as a whole a newfound legitimacy. By 
doing so, the VA Office of General Counsel would become a model 
for ethical legal practices across all Federal agencies.
    As a service-disabled veteran of the Iraq War who was 
active in providing pro bono legal services in the compensation 
and pen arena, I can also tell you that having an independent 
Office of Professional Responsibility would be helpful given 
the VA OGC's role of approving opposing counsel's lawful right 
to appear on behalf of veterans during the comp and pen 
process.
    This accreditation of opposing counsel is ripe for abuse or 
at the very least the appearance of abuse and an Office of 
Professional Responsibility would help increase the oversight 
in this important process.
    I hope that I have provided valuable insight to this 
Committee and I hope it brings about positive change.
    [The prepared statement of Mr. Tully appears on p. 18.]
    Mr. Mitchell. Thank you.
    In your testimony, you discuss the OGC's lack of concern 
for the person aggrieved and employment action is in 
contravention of ethical duties required of attorneys.
    Can you speak more about the ethical duties required of 
attorneys in the VA and how VA fails to meet the standard?
    Mr. Tully. Absolutely, Mr. Chairman.
    The VA attorneys have an obligation not to the manager that 
is involved in the employment dispute but to the taxpayers and 
to the government as a whole.
    I am a legal mercenary. I go to the highest bidder and I do 
my best to protect the people that retain me.
    The VA attorneys do very similar things, but that is not 
their job. Their job is to protect the taxpayers. Their job is 
to make sure justice is done. And routinely in these Equal 
Employment Opportunity Commission (EEOC) cases in particular, 
they spend a great deal of time trying to protect the manager 
that allegedly and has been often proven to have engaged in 
unlawful conduct versus doing what is right for the person that 
was subjected to injustice.
    Mr. Mitchell. Again, in your statement, you discuss 
instances of OGC's engaging in unnecessary legal discovery 
requests with private counsel and refusing to submit discovery 
despite legal requests and failing to adhere to key legal 
deadlines.
    Are there any penalties that the VA attorneys face for not 
complying with these legal requirements and, secondly, what 
penalties would attorneys in the private practice face if they 
did the same thing?
    Mr. Tully. Yes. There are motions to compel, but there are 
no financial penalties that could be imposed on the Agency. 
There could be sanctions in the case.
    So, for example, if I was a VA attorney and I did not meet 
the discovery deadline, some of that information that would 
have been relevant in discovery could be excluded. But the EEOC 
and the MSPB do not have the authority to impose financial 
sanctions.
    If this was in Federal District Court and I did that, I 
would be subjected to disciplinary action ranging from 
disbarment, suspension, as well as financial liability.
    Mr. Mitchell. But not if you were working with the 
government or OGC?
    Mr. Tully. Not before an administrative agency, no.
    Mr. Mitchell. Why do you think unprofessional conduct by 
the VA attorneys goes unchecked and what could the General 
Counsel for the VA do about this?
    Mr. Tully. Having spoken with my colleagues at the National 
Employment Lawyers Association at a recent convention about 
this, the problems seem to have occurred in the late 1990s, 
early 2000 before 9/11 when the VA Office of General Counsel 
had presidential appointees that were trying to instill a 
private law firm mentality into the Administration.
    And many of the things that they did were very favorable, 
but this aspect of zealously representing a client to the point 
of exceeding the ethical bounds is unfortunately one of the 
things that they did bring in that I as a private attorney can 
do. As long as I stay within ethical bounds, I can zealously 
represent my client whether or not they are right or wrong. The 
VA has to protect the person who is aggrieved.
    What I think the Office of General Counsel can do and 
specifically Colonel Gunn, and I believe he is trying to do 
that, is instill integrity amongst the career employees within 
the VA OGC. And he has an upward battle because this is years, 
decades of this type of mentality going out there.
    And it has worked to some degree. Many VA employees cannot 
find quality legal representation, which keeps the employment 
law complaints down or the ones that are filed are filed pro se 
and there is a much higher loss rate when there is a pro se 
person versus somebody represented by myself or one of my 
colleagues in my law firm.
    Mr. Mitchell. And one last question. Your testimony 
describes mooting.
    Mr. Tully. Mooting.
    Mr. Mitchell. And how the VA employs these filing 
techniques throughout the case. Can you explain what mooting is 
and how it adversely affects veterans and how the General 
Counsel is in the best position to remedy this?
    Mr. Tully. Absolutely. The General Counsel, previous 
General Counsel, I believe in 2007, issued a directive that in 
these USERRA claims involving Butterbaugh that the cases are to 
be immediately mooted upon presenting of evidence.
    Under the way the current USERRA law is, you do not get 
attorneys' fees unless there is an adjudication on the merits. 
So until that MSPB Judge smacks the hammer down and says, VA 
employee A, you are awarded, you know, $1,000 or $2,000, the 
client could be stuck with attorneys' fees.
    So we actively obtained the records needed to establish the 
case. Part of the discovery, because we are honest and 
forthcoming, we turn that discovery over to the VA and the VA 
takes that information and immediately begins processing the 
payment to the client, that a client receives the payment hours 
if not days before the hearing. The case gets mooted and there 
is no award of attorneys' fees.
    So our firm put in several thousand dollars into the case 
and ultimately we do not recover. And because it is veterans, 
we try not to recover against those veterans, especially if 
they only receive $2,000 or $3,000 because of the damages that 
they suffered at the hands of the VA and they ran up $3,000 or 
$4,000 in legal bills. I, as a service-disabled veteran, am not 
going to charge that to that employee.
    So ultimately I am holding the bag for hundreds of 
thousands of dollars in bad debt because the VA moots cases.
    Mr. Mitchell. Thank you.
    Dr. Roe.
    Mr. Roe. Thank you, Mr. Chairman.
    I will start with the mooting. It reminds me of basketball. 
When Dean Smith played the four corners offense, you just keep 
throwing the ball around until the time runs out.
    And what happens, I think, is that, and I have seen this, 
and if you want to make someone like me sweat is have an 
Obstetrician/Gynecologist doctor have a lawyer come in the 
office. That really sweats us and we do not like that. And most 
people do not. They are intimidated by the process.
    And the longer they can make it harder for that person, the 
less likely they are to get you to represent them because you 
really are pushing yourself away from the table if you know you 
are not going to recover your time. I understand that and I get 
that.
    Is there an entity, and maybe you are the wrong person to 
ask this of, is there an entity that oversees the ethical 
conduct of VA attorneys? Is there some structure?
    Mr. Tully. There is confusion about that. I spoke with 
Colonel Gunn before this and specifically laid out an example 
in 2007 where my law firm was subjected to egregious ethical 
conduct, that an impartial Administrative Judge confirmed was 
unethical conduct.
    We found out the jurisdiction in which that attorney was 
admitted. We notified the Bar of that State. That State said 
because it is a Federal practice and because it was before a 
Federal administrative agency, they do not have jurisdiction.
    We then contacted the VA Supervisor who said they do not 
have any Office of Professional Responsibility and told us to 
contact the Office of Inspector General. Filed a complaint with 
the Office of Inspector General, never to be heard from again.
    Mr. Roe. So really there is not any----
    Mr. Tully. Exactly. And that is why a Professional 
Standards Office would be perfect, especially in the 
Compensation and Pension practice arena where they accredit 
their opposing counsels.
    Mr. Roe. I guess the other thing that is difficult in here, 
because it is shades of gray, where you would expect the VA 
attorney to vigorously, if they felt they were right, support 
their side of the case. I certainly understand that.
    And I guess the question is, when does it step over the 
line? That is tough. And it is a gray area, I would assume.
    Mr. Tully. Some of it is not, Dr. Roe. The written 
testimony I submitted talks about fraudulently dating documents 
and I provided specific case references in that case. That is 
egregious. That person should be fired. That person should not 
be practicing as an attorney. Where do you go with that?
    And that is just one example. The information I provided in 
the written testimony with names and docket numbers is the tip 
of the iceberg because I only limited it to a handful of 
employment law cases.
    Mr. Roe. No question you are right. If somebody 
fraudulently changes a date, I agree they should be fired. You 
cannot believe anything they say.
    Mr. Tully. Exactly.
    Mr. Roe. I totally agree with that.
    Mr. Tully. But right now there is nobody to go to.
    Mr. Roe. Nobody to go to. As an attorney, how do you think 
the VA Office of General Counsel is doing? I mean, are they 
representing the government appropriately or overdoing it or 
underdoing it? How do you see it?
    Mr. Tully. My personal impression is that they are 
understaffed in their employment law section. They are 
overwhelmed. They are doing--as an overall system, they are not 
bad people. They are good, hard-working Americans. There are a 
handful of bad apples. But generally they are doing as good as 
they can do with the short staff that they have and the volume 
of cases that they have.
    And their intimate involvement with the managers is 
something that I have not seen at any other Agency. They are 
actively involved in the day-to-day management of employment 
law with the deciding officials. And that kind of zaps a lot of 
time and energy so versus at other agencies, DoJ, Department of 
Labor, they, the managers, make the decisions and get the 
attorneys to rubber stamp it.
    Mr. Roe. So generally you are thinking that in plain 
language you do not think that they are acting as an 
institution unethically? You think they are just overwhelmed 
and there may be a few bad apples, is that----
    Mr. Tully. Absolutely. And those few bad apple have been 
around for a while and they need to go. And, unfortunately, 
there is nobody around that is able to collect all of the 
information on those bad apples to build a case to get rid of 
them.
    Mr. Roe. I would think, I know that if you want to lose a 
medical malpractice case, all you have to do is alter a 
document and you have lost it right then. You do not need to go 
any further.
    And I would think if you altered a document, I mean, to me, 
that is as dishonest as you can get. When you are lying on a 
court of law, I would think it would be perjury or something. I 
do not know the legal part. But if you have done that to alter 
an outcome, I mean, that is just over the top, I think.
    Mr. Tully. I tend to agree. The downside, what quickly 
happens is when those attorneys are caught in that type of 
situation, the cases are almost automatically settled because 
the Department of Labor attorney knows that they are caught, 
goes back to the deciding official, and says give me $50,000 
and make this go away and I want a confidentiality clause.
    And our clients are trying to keep their job and they want 
a little bit of money. They are going to sign that. So it is a 
self-fulfilling prophecy with the way the current system is set 
up because there is no independent person that we can call and 
say, hey, the only reason why they are doing a settlement right 
now is, you know, we got them.
    Mr. Roe. Well, I want to thank you for your service to our 
country.
    And I yield back.
    Mr. Mitchell. Thank you.
    Mr. Adler.
    Mr. Adler. Thank you, Chairman.
    Let me followup on Dr. Roe's comments. First, I also thank 
you for your service to our country and I thank you for this 
ongoing service you are providing, telling Congress about some 
anomalies, some outliers in the otherwise ethical conduct of 
the Office.
    You spoke briefly in your written testimony about Tang v. 
U.S. Department of Veterans Affairs. Do you have actually 
documentary evidence that can back up the claim that there was 
a fraudulent postmarking?
    Mr. Tully. Absolutely. I would be more than happy to have 
my office send it to you this afternoon.
    [Mr. Tully subsequently responded to Mr. Adler and VA 
General Counsel Gunn, in a letter dated July 7, 2010. The VA 
General Counsel, Mr. Gunn, responded to Chairman Mitchell in a 
letter, dated August 19, 2010. The letters are being retained 
in the Committee files due to the inclusion of sensitive 
personal information.]
    Mr. Adler. I think it would be really helpful, I think, 
because I really liked your balanced testimony where you were 
saying that most folks, most of the attorneys representing the 
Veterans Affairs Department were behaving ethically.
    But if there are outliers, if there are folks who are not 
following that higher standard to which government attorneys 
have to adhere, we should catch them. And I think it is 
Congress' job. If the Office of General Counsel cannot do that, 
we could help them do that.
    So maybe if you could have your office send over to the 
Committee Chair and through the Chair to the rest of it, I 
think it would be very helpful to have us follow up more 
directly with the VA, not naming names publicly if that is not 
necessary, but maybe helping the VA identify those folks who 
are not performing up to that ethical level that you correctly 
note the Berger standard requires.
    So I wonder if you could do that for us.
    Mr. Tully. Too easy, sir.
    Mr. Adler. Thank you.
    I have no further questions. Thank you.
    Mr. Mitchell. Thank you.
    Again, we appreciate your service and what you are doing to 
help veterans. Thank you, Mr. Tully.
    Mr. Tully. Thank you.
    Mr. Mitchell. I would like to welcome panel two to the 
witness table. And for our second panel, we will hear from the 
Honorable Will Gunn, General Counsel for the U.S. Department of 
Veterans Affairs.
    Mr. Gunn is accompanied by Phillipa Anderson, Assistant 
General Counsel, and Michael Hogan, Assistant General Counsel.
    Mr. Gunn, you will have 5 minutes to make your presentation 
and your complete record will be made part of the record. Thank 
you.

     STATEMENT OF HON. WILL A. GUNN, GENERAL COUNSEL, U.S. 
    DEPARTMENT OF VETERANS AFFAIRS; ACCOMPANIED BY PHILLIPA 
ANDERSON, ASSISTANT GENERAL COUNSEL, OFFICE OF GENERAL COUNSEL, 
    U.S. DEPARTMENT OF VETERANS AFFAIRS; AND MICHAEL HOGAN, 
  ASSISTANT GENERAL COUNSEL, OFFICE OF GENERAL COUNSEL, U.S. 
                 DEPARTMENT OF VETERANS AFFAIRS

    Mr. Gunn. Thank you, Mr. Chairman, Mr. Roe, other Members 
of the Subcommittee. I appreciate this opportunity to come 
before you today to testify in my position as General Counsel 
for the Department of Veterans Affairs.
    First of all, Members, I just want to emphasize that I am a 
veteran. I am a 25-year Air Force retiree. I spent most of my 
time as a judge advocate. I have spent time both defending 
military members and prosecuting military members and a wide 
variety of other roles.
    Immediately before coming into this position, I served as 
the sole practitioner in my own law firm where I defended 
veterans and represented military members. So the opportunity 
that I have in this role is one that I take very, very 
seriously and it is near and dear to my heart, to my passion.
    First of all, I want to welcome with me Mr. Hogan, who 
essentially heads our management and operations group, and Ms. 
Phillipa Anderson, who heads our contract law and real property 
group.
    Mr. Chairman, when I came into this office 13 months ago, I 
had talked to a variety of people about what was going on in 
the Office of General Counsel and I received advice from 
various individuals. Most of those people had a common theme 
and that was that the Office was one that was responsive and 
that provided good results.
    After being in Washington for about a month, I went on the 
road, traveled around the country to our Regional Offices to 
test that initial hypothesis that this was a high-performing 
organization. And I am pleased to say that that initial 
hypothesis was validated.
    Now that I have been here more than a year, I am still at 
that same position that this is a high-performing organization 
and it has been validated by evidence.
    For instance, OGC, the Office of General Counsel, scores 
very high on our client satisfaction surveys. We have been 
sending out surveys since 2003. In 2010, our clients gave us an 
overall satisfaction score of 4.57 on a scale of 5.0.
    The section led by Ms. Anderson received a recognition from 
our Major Construction and Real Property Programs Unit, 
received their Partner in Service Delivery Award. We also 
received recognition from the Department of Justice last year 
where we received their John Marshall Award for Outstanding 
Legal Achievement for Agency Cooperation in Support of 
Litigation. We are the only Federal agency to be recognized in 
this manner.
    In addition, the Office of Government Ethics awarded us 
with outstanding achievement in managing an Agency Ethics 
Program and this past year, we received recognition from the 
Office of Government Ethics in terms of excellence in 
developing communications products that other Federal agencies 
have adopted.
    I am also gratified that our employees within the Office of 
General Counsel also rate us extremely highly with respect to 
our internal employee scales, employee ratings.
    Mr. Chairman, when I came aboard, I found a strategic 
planning process in place. And that strategic planning process 
identified a central goal for the organization. That was that 
the Office of General Counsel become a truly unified national 
law firm.
    I embrace that theme because I believe that in order to 
meet the needs of the Department and in order to serve 
veterans, we are going to have to be more effective and we are 
going to have to be more unified.
    As you mentioned in your earlier remarks, we have to focus 
on being more consistent and providing the very best service 
that we can.
    With that in mind, I have established some strategic 
objectives and some strategic priorities. Those emphasize 
education and training for our staff, knowledge management so 
that we can retrieve information and share information across 
the country, and also cross-office and cross-regional 
collaboration. We are emphasizing these so that we can be even 
better and so that we can provide the very best service that we 
can.
    I just want to close by stating this. I am committed to 
providing extraordinary customer service and I am also 
committed to providing service that is based in excellence and 
in integrity. That is my hallmark.
    As an Air Force Officer, I lived by certain core values. 
Those core values were integrity first, service to others 
before self, and excellence in all that I do. I still live by 
those principles and I am committed to instilling those 
principles throughout the Office of General Counsel.
    I stand ready to respond to your questions.
    [The prepared statement of Mr. Gunn appears on p. 25.]
    Mr. Mitchell. Thank you very much, Mr. Gunn. And all of us 
appreciate very much the service you have given to this country 
and we appreciate that very much.
    You mentioned at the very beginning all the great 
satisfaction reports you have received from your clients.
    Who are your clients? They are not veterans, are they?
    Mr. Gunn. Sir, we do not directly serve veterans. You are 
correct.
    Mr. Mitchell. Who are your clients?
    Mr. Gunn. Ultimately my client is the Secretary of Veterans 
Affairs. And so as the Department's top lawyer, my job is to 
make sure that the Secretary is well-armed.
    As I describe it and as we cascade down throughout the 
Department, we provide services to senior managers at local 
facilities and also within the Central Office of Veterans 
Affairs.
    I look at it as we are providing legal guidance and support 
so that those that do provide direct services to veterans are 
able to do their jobs most effectively.
    Mr. Mitchell. There have been times in the past where the 
VA frequently declines to produce a witness requested to either 
testify at hearings or brief the Subcommittee. And the OGC's 
guidance often gets cited as the reason for not producing 
witnesses at either hearings or briefings.
    Two questions. What role does OGC play in the VA deciding 
who either testifies or briefs the Subcommittee and does the 
OGC provide an opinion when the VA refuses to produce certain 
information as requested by Congress or through the public?
    Mr. Gunn. Sir, with respect to the first issue in terms of 
whether or not OGC plays a role in who will testify, I will 
say, no, we do not see ourselves as having a role with respect 
to that.
    In terms of the second issue, we do play a role in terms of 
responding to requests for documents. And our advice is focused 
on two things, what can we provide, what is permissible, and, 
secondly, what are we required to provide?
    As you yourself, I believe, mentioned in your opening 
statement, there is a tension that exists from time to time, 
particularly when we are talking about predecisional documents 
in terms of whether or not we can release a given document. We 
do our best to provide advice and counsel in those situations.
    Mr. Mitchell. You heard the first panel discuss the OGC's 
lack of concern as being in contravention of the ethical duty 
required of Agency attorneys.
    Can you speak more about the ethical duties required of 
attorneys in the VA and address allegations that the VA fails 
to meet the standard?
    At the same time, there seems to be a difference in holding 
people to ethical standards in the private sector versus the 
OGC. There is a Bar Association, for example, that can hear 
complaints.
    What is there on the part of the OGC to respond to 
unethical practices?
    Mr. Gunn. Well, Mr. Chairman, first of all, I found out 
about the first panel less than an hour ago on my way over here 
and so that was the first, and when I got here, getting a 
chance to scan through his statement and also listening to him, 
and I did get an opportunity to speak to Mr. Tully briefly 
before this hearing began, and so I am very interested in his 
comments.
    One of the things that we introduced is just a newsletter 
for the Office of General Counsel. We circulate it on a weekly 
basis. And in each one of these newsletters, I get an 
opportunity to prepare a column. I emphasize in those columns, 
I have taken most of the last 3 months to emphasize our values. 
Our values, at the top of those values are the value of 
integrity and the value of being ethical.
    And so that is something that I take very, very seriously. 
I will say that before today, I had not heard comments along 
those lines. So I have invited Mr. Tully to follow up with me 
and to provide me with specific examples because I do want to 
follow up.
    But I will also say, I just want to make sure that the 
Committee understands, that even though we are a Federal 
agency, all of our attorneys must be licensed by a State Bar 
Association. And they are subject to disciplinary action from 
those State Bars if they violate the Rules of Professional 
Responsibility for that given State.
    So that is always an option that someone has if they are 
dissatisfied or if they believe that our attorney has acted in 
an unethical manner.
    I have also instructed my team to develop an internal 
process for reviewing complaints of unprofessional conduct by 
our attorneys.
    So that is something that I take very, very seriously and I 
look forward to finding out more information.
    Mr. Mitchell. Thank you.
    I yield to Dr. Roe.
    Mr. Roe. Thank you, Mr. Chairman.
    Just to continue the Chairman's line of questioning 
briefly, and you just mentioned that you are working on an 
internal process and, of course, the State Bar, but what will 
you do if you found out that a document had been deliberately 
altered to alter the outcome of an event? What would you do 
with that?
    Mr. Gunn. Dr. Roe, I agree with what you said in responding 
to the first panelist and that is that that is egregious 
conduct. That is unacceptable. And while I only rate personally 
two individuals, I would strongly suspect that that would be 
basis for dismissal.
    Mr. Roe. That is a good answer. I think I know what I would 
do.
    And I guess when you have a situation where let us say 
there are obviously two issues, Mr. Tully is defending someone 
and you are on the other side, when you discover that maybe 
your position is wrong, what do you do in that situation?
    And what he was saying was that in the private practice of 
law, whether you are guilty or innocent, you can be vigorously 
defended. He is saying that is not the case.
    Do you agree with that, what he said?
    Mr. Gunn. I do. You know, last week, I had an opportunity 
to spend some time with new attorneys in the Office of General 
Counsel. We had a new attorney orientation course here. And I 
spent time with them on the first day of the course and I spent 
time with them on the last day of the course.
    Included in my comments was just an overall theme and that 
theme was that as attorneys, as Federal Government attorneys, 
particularly attorneys in the Department of Veterans Affairs, 
we need to be focused on one thing and that is doing the right 
thing.
    And so that has to be at the forefront of what we do. As 
you probably know, let us say our counterparts in the 
Department of Justice, the Federal prosecutors, they have a 
responsibility of representing the taxpayers, the American 
public in criminal litigation. And so they are trying to win 
those cases.
    But ultimately they have a higher calling and that calling 
is to do justice. So I absolutely agree that that is also our 
responsibility.
    Mr. Roe. So at the end of the day, you would negotiate an 
end to this if you found out that your side was--you would not 
vigorously defend the wrong position if you evaluated it as 
that?
    Mr. Gunn. Absolutely. One of the tools that we have at our 
disposal is the settlement tool. And when we find that we are 
going up the wrong road in litigation, we are in a position 
where we can do our best to settle the case.
    Mr. Roe. I think meeting with Mr. Tully, I think he had a 
different opinion sometimes about how that was happening. And I 
would like to see that worked out.
    One other quick question. And this is an interpretation 
basically on the HITECH Act (Health Information Technology for 
Economic and Clinical Health Act) where an interpretation was 
that it had to be, when there is a breach, that there had to be 
500 people in each State. And obviously a breach is 
embarrassing to VA and to the government. So you would like to 
not have breaches.
    But in using that less than 500 interpretation, that means 
that you could have thousands of people whose data was 
breached, if you used the per State, instead of just saying 
that this is a 500 or 499, and you multiply that times 50, you 
get thousands of people. Now, that would be a hard, difficult 
scenario, I think.
    But how did your office come, not necessarily you, but how 
did your office come to that conclusion?
    Mr. Gunn. Dr. Roe, two points that I would like to make. Of 
course, I deal with situations when there has been an 
unauthorized disclosure of personal identifying information.
    And with respect to that, first of all, in terms of our 
role of looking after the veteran, doing our best to take care 
of veterans, when we find that a veteran's information has been 
disclosed, we do our utmost to notify the veterans. So 
regardless of the requirements of HITECH, we notify veterans. 
That is first and foremost.
    In terms of the HITECH itself, I understand and I have had 
discussions with some of your staffers with respect to concerns 
about our interpretation of that, but our interpretation when 
it is necessary to make a media disclosure is based upon 
information that the U.S. Department of Health and Human 
Service (HHS) provided when they promulgated their interim 
regulations on this topic.
    For instance, they specifically gave an example that if 
there was an unauthorized breach involving 600 individuals, 200 
who lived in Virginia, 200 that lived in DC, and 200 in 
Maryland, then there would not be a breach that required 
notification of media under HITECH. So that was their 
interpretation.
    So in providing advice to our clients, we went back and 
responded in that manner.
    Mr. Roe. Okay. I think we have votes, Mr. Chairman. I yield 
back.
    Mr. Mitchell. We do have some votes.
    Let me ask two quick questions. In my opening statement, I 
mentioned about the OGC repeatedly using time extensions in 
court in order to keep pace with their workload.
    And I want to know, is the workload so great that it 
continues to be an ongoing issue?
    And, secondly, we have often heard from various Department 
entities that the documents crucial to the Subcommittee's work 
had been tied up in the General Counsel's Office or restricted 
for release.
    Now, one quick question with that. Are your attorneys 
overworked? How many hours a week do they work? Do they work 40 
hours? Do they get overtime pay? How are they compensated 
compared to the private sector? What kind of incentives do they 
have to do work?
    Mr. Gunn. Mr. Chairman, I believe first of all from an 
overall perspective we are blessed to have highly motivated 
employees. And the results from our employee surveys will bear 
that out. And we would be more than happy to share that 
information with the Committee so that you can see that.
    [The VA subsequently provided VA Employee Survey 
Information for 2009 and 2010, which appears on p. 30.]
    But in addition to that, beyond that, you are right. In 
terms of our representation of the Department before the Court 
of Appeals of Veterans Claims, we have fallen into a position 
that we were requesting delays at a higher rate than were the 
appellants who were bringing, the veterans who were bringing 
their cases before that court.
    But thanks to you, thanks to other Members of this 
Committee and the Congress, we have had budget increases that 
have allowed us to bring more resources to bear in our Group 7, 
which provides that representation. As a result of that, we are 
doing much better on that front.
    We are also working hard to do two things. We want to make 
sure that we are able to provide effective representation in a 
timely manner and we also have to be sensitive to the fact that 
we do not want our attorneys overworked.
    We found in that particular section that if an attorney has 
more than 50 cases at a time, that leads to more delays. That 
also leads to burnout. So we have been able to increase the 
number of attorneys that we have and as a result of that, we 
have been able to respond in a much more timely manner and 
request fewer delays.
    Mr. Mitchell. Thank you.
    We are going to have to conclude this hearing. We have 
votes.
    I just want you to know that, first of all, how much we 
appreciate what you are doing and your service to the taxpayers 
and also to this country.
    But as we have requested with all of our hearings, we will 
follow up and there are a number of questions we have to follow 
up to make sure that we are doing our job because it does no 
good to have a hearing and just let it go.
    Mr. Gunn. Yes, sir.
    Mr. Mitchell. So we will do that.
    Did you want to say anything?
    Okay. All right. Thank you very much. And this hearing is 
adjourned.
    Mr. Gunn. Thank you, sir.
    [Whereupon, at 10:50 a.m., the Subcommittee was adjourned.]



                            A P P E N D I X

                              ----------                              

        Prepared Statement of Hon. Harry E. Mitchell, Chairman,
              Subcommittee on Oversight and Investigations

    Thank you to everyone for attending today's Oversight and 
Investigations Subcommittee hearing entitled, Evaluating the U.S. 
Department of Veterans Affairs Office of General Counsel.
    Each day the U.S. Department of Veterans Affairs (VA) executes 
laws, regulations and policies that have a profound effect on how the 
Department conducts its business and assists our Nation's veterans. The 
General Counsel serves as the VA's chief legal officer, as the office 
provides legal advice to the Secretary and all organizational 
components of the Department. It is no secret that the VA's General 
Counsel, or OGC, plays a critical role in the decision-making and 
oversight of the VA.
    The OGC is a unique and complex office within the VA, and its full 
range of responsibilities, including legal, litigation, legislative and 
regulatory activities is distributed among seven Professional Staff 
Groups, each headed by an Assistant General Counsel. Each of these 
groups has the expertise in specific subject matter areas, and is 
responsible for providing legal advice to program officials, reviewing 
proposed regulations and directives, and handling litigation involving 
VA programs. Additionally, the OGC operates 22 field offices, which 
comprises almost two thirds of OGC's workforce. With general counsel's 
widespread workforce, the OGC must promote consistency and uniformity 
of its recommendations that lead to executive decisions that directly 
impact millions of veterans.
    We have heard many times that the OGC has repeatedly used time 
extensions from the court in order to keep pace with their workload; 
however, the workload is so great that it continues to remain an 
ongoing issue. Additionally, we have too often heard from various 
Department entities, that documents crucial to this Subcommittee's 
work, are tied up with the General Counsel's office or that they are 
restricted by the OGC for release.
    Though OGC insists that the oversight responsibility of Congress 
deserves respect, there is often, at times, a tension between this 
oversight responsibility and agencies' needs to protect certain pre-
decisional information from disclosure out of concern that it could 
have a chilling impact on the free and open internal discussion and 
debate leading to the provision of advice needed by agency decision 
makers.
    As the VA OGC deals with these challenges, they must still continue 
to give timely and balanced legal recommendations that will benefit the 
needs of our veterans and the Department of Veterans Affairs. 
Determining an objective standard to evaluate a subjective trade is a 
challenge; nonetheless, the general counsel needs to bring reform to 
the VA's Office of General Counsel.
    I look forward to hearing from the general counsel the challenges 
the office is facing, as well as solutions that are being implemented 
to correct long standing issues within the Office.

                                 
  Prepared Statement of Hon. David P. Roe, Ranking Republican Member,
              Subcommittee on Oversight and Investigations

    Thank you Mr. Chairman.
    According to the VA Web site, the mission of the VA Office of the 
General Counsel (OGC) is to identify and meet the legal needs of the 
Department of Veterans Affairs (VA). Its primary objective is to ensure 
the just and faithful execution of the laws, regulations and policies 
that the Secretary has responsibility for administering, and by so 
doing enable the Department to accomplish its mission of service to our 
Nation's veterans.
    In recent years, Congress has increased the budget allocation to 
the Office of General Counsel to assist them in meeting this mission. 
With the current 9.2 percent budget increase for FY 2010, and the 
requested 9.6 percent increase for FY 2011, it is appropriate to call 
this hearing to review the work of the Office of the General Counsel 
and make certain that the product produced by that office is providing 
the best benefit to our Nation's veterans and the American taxpayer.
    Over the past several years, this Committee has reviewed a number 
of contracting issues, where it was apparent that the guidance provided 
by the VA General Counsel was insufficient, inaccurate, or lacking. 
Recent VA OIG reports on contracting have shown deficiencies within the 
Office of General Counsel with respect to supporting contract 
management. I am interested in hearing from the General Counsel on how 
his resources are being allocated to improve contract management at the 
department.
    I also want to know if the General Counsel plans to improve the 
relationships between the Contracting Officers and the Regional General 
Counsels, so that they actively seek their advice on major contract 
awards prior to the award being granted. Does the General Counsel plan 
to more actively perform pre- and post-award contract reviews on all 
contracts?
    I am also concerned about delays we frequently hear about during 
meetings on the concurrence process for Directives issued by the 
Veterans Health Administration. Often we are told that a directive is 
being held up by the General Counsel's office. These delays in 
providing legal opinions can lead to delays in updated treatment 
information being sent to the VISNs and medical facilities and may 
cause problems with patient care.
    The bottom line here is that we make certain the resources Congress 
provides to VA are being allocated properly in order to provide the 
most benefit for the veterans and the American public, at the best 
value possible? Given the current track record of the General Counsel 
in contracting matters, I am uncertain that this is the case.
    Mr. Chairman, I yield back my time.

                                 
    Prepared Statement of Matthew B. Tully, Esq., Founding Partner,
                     Tully Rinckey PLLC, Albany, NY

    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, DC 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.
---------------------------------------------------------------------------
    \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 it 
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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.'').

    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
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 1 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\
---------------------------------------------------------------------------
    \11\ Pub. L. 103-353, codified as amended at 38 U.S.C. 
Sec. Sec. 4301-4335 (2010).
    \12\ Butterbaugh v. Department of Justice, 336 F.3d 1332 (Fed. Cir. 
2003).
---------------------------------------------------------------------------
    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. Sec. 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. Sec. 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



       Prepared Statement of Hon. Will A. Gunn, General Counsel,
                  U.S. Department of Veterans Affairs
    Mr. Chairman, Dr. Roe, and Members of the Subcommittee, good 
morning. Thank you for the opportunity to testify today. As General 
Counsel and the chief legal officer of the Department of Veterans 
Affairs, I am pleased to discuss the operation of the Office of General 
Counsel (OGC) as it supports the Secretary, senior leaders, and VA's 
dedicated employees in their daily service to our Nation's Veterans.
The Office of General Counsel and Its Mission
    The Office of General Counsel, as mandated by 38 U.S.C. Sec. 311 
and 38 CFR Sec. 14.500, provides legal assistance to the Secretary 
concerning the programs and policies of the Department and is 
specifically responsible for litigation, interpretive legal advice, and 
other legal services required for program implementation.
    OGC interprets all laws, regulations, and judicial precedents 
pertaining to the Department. We are responsible for the conduct of 
litigation--both independently and in coordination with the Justice 
Department--in State and Federal courts. OGC also plays a large role in 
preparing VA's testimony for legislative hearings, analyzing pending 
legislation in Congress, and drafting legislative proposals initiated 
by VA.
    OGC supports the strategic goals of the Department by providing 
accurate, timely, and effective legal advice and representation. OGC 
also assists in formulating policy and in providing legal advice and 
services to the Secretary and all VA components. OGC also trains VA 
employees to ensure compliance with applicable laws. Finally, the 
General Counsel serves as VA's regulatory policy officer and manager of 
its centralized regulatory management office.
Organizational Structure
    The OGC is the Department's national law firm, operating not only 
from VA Central Office and but also from 22 Offices of Regional Counsel 
located throughout the United States. My focus as General Counsel has 
been to foster a unified national-law office culture. By emphasizing 
knowledge management, education & training, and intra-office 
collaboration, we can leverage the collective expertise of nearly 500 
attorneys and 230 paralegals and support staff to ensure timely, 
accurate, consistent legal service to the Secretary and all elements of 
the Department.
    OGC headquarters is organized into seven Professional Staff Groups 
(PSGs) and the Office of Regulations Policy and Management. 
Approximately 40 percent of OGC's 730 personnel comprise these offices, 
which specialize in providing legal advice and services related to the 
subject areas identified below:

       Professional Staff Group I has responsibility for administrative 
claims and litigation under the Federal Tort Claims Act, and legal 
services regarding education programs for Veterans and dependents, VA's 
debt-collection activities under a number of statutes, vocational 
rehabilitation programs, and VA's loan guaranty program. This group is 
also responsible for administrative claims under the Military Personnel 
and Civilian Employees' Claims Act and for requests for representation 
made by VA employees to the Department of Justice.

       Professional Staff Group II has overall responsibility for 
providing advice concerning VA's multi-billion-dollar programs of 
disability and death compensation and pension for Veterans and their 
survivors, and Federal life-insurance programs for Servicemembers and 
Veterans. In addition, the group is responsible for all legal advice 
concerning the national cemetery system (except land acquisition, which 
is handled by PSG V) and various burial benefits administered by the 
Veterans Benefits Administration. The group is also responsible for 
reviewing proposed and final rules for all VA programs to ensure 
compliance with the Administrative Procedure Act, and other statutes 
and orders governing rulemaking.

       Professional Staff Group III provides legal advice in the areas 
of health-care eligibility and benefits, medical administration, 
medical research, labor-management relations, human resources, crimes 
and police matters, VA-affiliated non-profit corporations, technology 
transfer and ethics. The Assistant General Counsel for PSG III is VA's 
designated agency ethics official, responsible for operating the 
Department's ethics program.

       Professional Staff Group IV is primarily responsible for four 
legal practice areas--equal employment opportunity (EEO) law, 
information law, appropriations/fiscal law, and intellectual property 
law.

       Professional Staff Group V is responsible for three major legal 
practice areas--government contracts, including procurement, bid 
protests, and contract litigation; real- and personal-property law; and 
environmental law.

       Professional Staff Group VI is responsible for providing 
management and administrative support and services to OGC at VA central 
office and the 22 Offices of Regional Counsel nationwide. The Assistant 
General Counsel for PSG VI also serves as the principal advisor to the 
Deputy General Counsel and the General Counsel on matters relating to 
the delivery of legal services to client VA facilities in the field. 
The Assistant General Counsel, PSG VI, supervises the 22 Regional 
Counsels.

       Professional Staff Group VII is responsible for representing the 
Secretary of Veterans Affairs before the U.S. Court of Appeals for 
Veterans Claims (CAVC). The decisions issued by the CAVC are often 
precedential in nature and carry the weight of law, which, in turn, 
potentially affects the administration of VA benefit programs and claim 
procedures.

       Regulation Policy and Management: OGC also has a separate 
directorate, the Office of Regulation Policy and Management (02REG), 
which is responsible for centrally managing development and amendment 
of all VA regulations. This office supervises major regulation rewrite 
projects for the Department, including an ongoing project to reorganize 
and rewrite all of the compensation and pension regulations in part 3 
of Title 38, Code of Federal Regulations (CFR). It also is responsible 
for implementing the Federal Government's e-rulemaking initiative and 
operating the Federal Docket Management System (FDMS) for the 
Department.

       Offices of Regional Counsel personnel comprise the remaining 60 
percent of OGC's FTE and provide legal services to the Department's 
field facilities in a broad spectrum of legal practice areas. Regional 
Counsel attorneys, and the paralegals and legal assistants supporting 
them, adjudicate tort claims, including claims of medical malpractice, 
represent the Department in administrative proceedings involving 
discrimination complaints and appeals from employee discipline, provide 
the full array of contract law services, advise and assist regarding 
the Department's research corporations and related issues, provide 
ethics training and review of confidential financial disclosure 
reports, provide preventive law training, prepare opinions and 
generally advise Department managers regarding a multitude of legal 
issues.
Management Reforms and Innovations
    The Office of the General Counsel has undergone a number of 
significant organizational changes in the last 15 years. In 1995, OGC 
reduced the number of its field offices from 56 districts to 23 regions 
to combine areas of geographic responsibility to better serve our VA 
clients.
    In 2003, OGC launched its own case and time management system, 
General Counsel Legal Automated Workload System (GCLAWS). Using GCLAWS, 
our practitioners create electronic case files, complete with file 
attachments for key documents and time entry information to document 
case management. GCLAWS also contains a robust report generation 
capability to assist OGC users, supervisors and OGC senior management 
in tracking cases, spotting trends, etc.
    In 2008, OGC built the capability to provide contract legal support 
to VA's field activities to improve the quality of solicitations and 
contract awards. Each office of regional counsel now has at least two 
contract law attorneys. When used to their maximum advantage, the legal 
support begins before the solicitation and continues through the award, 
including any protest actions. OGC is also available to advise on 
contract-administration issues.
    OGC implemented a robust client-survey program in 2003 and has used 
the feedback to deliver our clients the training, preventive-law 
guidance, and key information about what services we provide and who 
among us provides them.
    We focused similar attention on our greatest resource, our 
employees. We conducted employee surveys in 2009 and again in 2010. We 
have provided training to our leaders to maximize use of the feedback 
to improve where needed and understand better why we are succeeding in 
other areas so we can sustain the success.
Strategic Outlook
    Also in 2008, OGC published its first strategic plan. We built the 
plan to align our operations with those of our clients. We understand 
strategic planning is not a static event. Instead, it requires 
continual review and updating to ensure the plan aligns with changes in 
Departmental priorities.
    As stated in the plan, OGC's mission is to provide expert, timely 
and effective legal advice and representation to the Department of 
Veterans Affairs. While we move to implement our defined mission, the 
following vision lights our path: to be the premier Federal legal 
organization--unified, national and world class--composed of talented, 
dedicated professionals, working together to support the Department's 
mission of service to our Nation's Veterans.
    The OGC strategic plan lists our core values, the principles that 
guide our organization.

      Honest--we will preserve our integrity and that of the 
Office of General Counsel in all of our dealings.
      Ethical--our practice reflects the highest ethical 
standards in the legal profession. We demand the highest level of 
awareness of and compliance with all ethical standards applicable to 
the Department.
      Mission First--Veterans have earned our gratitude and 
respect. We provide legal services that foster just and fair treatment 
of Veterans and their families through the faithful execution of the 
laws, regulations, and policies of the Department.
      Professional--we are a highly-skilled, diverse and 
responsive national law office dedicated to providing timely legal 
service to the Department. We are responsible and answerable for our 
professional decisions and actions. We treat everyone with respect and 
dignity.
      Proactive--we are committed to open communications with 
our associates, stakeholders and clients. To best serve our clients, we 
are committed to and encourage constructive and early engagement on a 
wide range of programmatic and legal issues. This can help resolve 
potential issues before they become legal problems, and result in a 
more comprehensive policy-formulation process within the Department.
      Excellence--we strive to perform at the highest level of 
competence and to exceed the expectations of our clients and 
stakeholders. We seek to continuously improve our services and skills.
      Transparent--we strive to improve service by making our 
organization, legal and business processes accessible to and 
understandable by our clients and stakeholders.
      Stewardship--we exercise responsible stewardship of 
human, financial, and other resources, as well as data and information 
entrusted to us. We embrace innovative technology to maximize our 
effectiveness and resource management.

    Earlier this year, we began the process of reviewing our strategic 
plan to ensure it remains relevant and aligned with the Department's 
operations, particularly given the focus on transformation articulated 
by both the President and Secretary Shinseki, and the creation of a new 
VA Strategic Plan.
    The OGC Strategic Plan and our commitment to its many elements 
promote the concept of a unified national law firm. One key aspect of 
the Strategic Plan involves greater collaboration and sharing of 
information within OGC to improve the consistency of our legal guidance 
and the speed with which we deliver it. This fundamental concept drives 
many of our current initiatives including Geographic Cooperatives, 
Specialty Panels and regional training events for OGC personnel.
    A stable workforce and timely and effective information technology 
support are critical to achieving our goal of a truly unified national 
law firm. Staffing is a paramount concern because over 90 percent of 
our budget involves payroll and related expenses. Similarly, access to 
information, current and historical, logically organized and easily 
retrievable, is critical to our national law firm goal.
Current Challenges
Meeting Court of Appeals for Veterans Claims (CAVC) Filing Deadlines
    OGC attorneys represent the Secretary in all appeals taken to the 
CAVC. As the Subcommittee is aware, the number of cases filed in that 
court has been steadily growing over the past several years. OGC's 
ability to increase staffing has not always kept pace. Fortunately, the 
FY 2010 budget increase for our office has permitted us to catch up to 
this workload. The FY 2011 VA budget request for OGC would allow us to 
stand up another litigation team to deal with the expected further 
growth in new CAVC cases.
    The CAVC is coming off a record-setting year in which it received 
4,725 new cases and we are now filing approximately 2,000 pleadings per 
month. With the additional attorney and support staff we have been able 
to add in FY 2009 and 2010, our average caseloads per attorney are now 
down to 47 active cases. Experience has shown that when our average 
caseloads exceed 50, we have difficulty staying current.
    This is a high priority for us and while we realize there will 
always be some circumstances beyond our control requiring extensions to 
file, our goal is to reduce these requests to the minimum necessary.
Supporting VA Acquisition Activities
    A second major challenge is to address the evolving need for legal 
support in the acquisition process. The Department's history shows it 
was slow to realize the value that attorneys could bring to the 
procurement arena. Fortunately, OGC's role, as well as the contracting 
function itself, is being buttressed, and this is a focus of the 
Secretary's initiatives to modernize VA.
    In the early 1990's, as now, VA was one of the largest procurement 
agencies in the Federal Government. There were several hundred 
contracting locations and nearly 2000 contracting officials who 
annually awarded tens of thousands of contracts totaling several 
billion dollars in value. These contracts included construction, 
supply, service, information technology, resource sharing, and 
interagency agreements. Yet all of the legal support for contracting 
was provided by Professional Staff Group V, located in Washington D.C., 
along with three attorneys out-stationed at the National Acquisition 
Center, in Hines Ill. The VACO staff consisted then of fewer than 12 
staff attorneys, and three supervisors.
    The role of the attorneys in individual procurements was limited to 
reviewing certain high-dollar solicitations and other documents per the 
dictates of the Federal and VA Acquisition Regulations, litigating 
protests at the Government Accountability Office and claims at the 
Board of Contract Appeals, and providing advice when requested by the 
various contracting and program officials. There was no formal role for 
attorneys in the contract-formation process, including the selection of 
awardees, or in the contract-administration process. Moreover, existing 
VA attorney staff were unable to focus exclusively on contracting 
assistance as they also maintained responsibility for real-estate and 
environmental matters, regulation and policy reviews and various 
additional activities. In the mid-1990s and early 2000s, three more 
attorneys were assigned to support the Austin Automation Center and 
three attorneys were located at field locations to support construction 
and supply activities.
    The Department reexamined its acquisition process in 2007 and 
decided to strengthen attorney support to VA procurement activity. In 
that year, OGC trained an attorney in each Office of Regional Counsel 
in contract law. In 2008, twenty five additional attorneys were 
assigned to each of those offices, allowing OGC to transfer 
responsibility for legal support for contracts awarded by field 
activities from PSG V to our 22 field offices. Four additional PSG V 
attorneys have been added to support the national contracting function 
performed in the Office of Acquisition, Logistics and Construction 
(OALC) headquarters office.
    The Regional Counsel contract-law attorneys are each assigned 
expert PSG V mentor attorneys with whom to work. The expansion of the 
Regional Counsel attorney staff was particularly timely in view of 
VHA's subsequent consolidation of its local contracting actions first 
at the VISN level, and later at regional levels--consolidations OGC was 
well situated to support. In addition, in 2009, concurrent with the 
establishment of the Technology Acquisition Center in Eatontown, NJ, 
OGC's PSG V established a new section to provide dedicated legal 
support to VA's information technology acquisition function. This staff 
consists of 14 attorneys, ten in Eatontown, NJ and four in Austin, 
Texas, and an on-site supervisory attorney at Eatontown.
    The growth of our procurement-attorney corps has permitted an 
expanded role for them in the acquisition process. OALC requires 
Contract Review Boards (CRB) in all high-dollar procurements and 
utilizes Integrated Product Teams (IPT) to prepare and conduct many of 
those acquisitions. Those innovations greatly increase the demand for 
legal support. For example, CRBs provide a legal review of the entire 
procurement process for an acquisition prior to the award decision 
being made, an excellent means for identifying potential flaws. Even at 
the earlier stages of an acquisition, there is an increased demand to 
use IPTs to develop VA's requirements, with legal counsel participating 
in the development of acquisition strategy and the creation of the 
solicitation, evaluation criteria, and statement of work. We are glad 
to have become full and active partners in VA acquisition activities.
    OGC continually explores ways to improve its operations, and is 
implementing key measures every day. These include increasing focus on 
attorney development and coordination, and leveraging technology so 
attorneys can more effectively communicate through a number of means, 
as and when needed. We also have implemented a new SharePoint Web site, 
which enables each OGC attorney to stay ``patched in'' on the latest 
developments within each OGC Professional Staff Group and Regional 
Counsel Office. The SharePoint Site also contains a search vehicle that 
enables attorneys to seek and retrieve past legal opinions and memos. 
We also have enhanced OGC's regional and national training programs, 
and instituted a new OGC leadership development program to ensure OGC 
is poised to retain its best and brightest.
    OGC is pointed in the right direction and working hard. As the 
Department moves forward to centralize aspects of its procurement 
activities, our office will position itself to provide the best 
possible legal services.
    That concludes my opening statement and I ask that it be entered 
into the record. Mr. Chairman, I look forward to whatever questions you 
and other Members may have.
                   MATERIAL SUBMITTED FOR THE RECORD

                  U.S. DEPARTMENT OF VETERANS AFFAIRS
           FOLLOWUP INFORMATION REGARDING VA EMPLOYEE SURVEYS
    The information below contains the questions from the VA's employee 
survey. The table at the end contains a summary report regarding the 
survey responses for the 2 years VA has conducted the survey, 2009 and 
2010.
    VA converted the answers to a 5-point scale, assigning the highest 
positive score the value of 5 and 1 for the lowest score, excluding 
``Do not know'' as an answer when it is available.
    For the 2009 survey results, the average scores are missing for 
three questions because VA did not ask those questions until the FY 
2010 survey. The questions involve the Organizational Assessment topics 
of ``Engagement'' and ``Psychological Safety'' and the Culture question 
regarding ``Enabling''.

                               __________
                         VA ALL EMPLOYEE SURVEY
OVERVIEW:
    The purpose of this survey is to collect information on your 
perceptions of the workplace and your satisfaction with the Department 
of Veterans Affairs. Please answer all of the following questions 
thinking about your experiences over the past six (6) months.
    Completing the survey is completely voluntary, but your help in 
responding to the survey is very important. By voicing your opinion you 
can influence your work destiny and assist all of us in making changes 
where needed. The survey is completely confidential and anonymity is 
protected throughout the process. Thank you for taking the time to 
answer this survey. Your opinion is very important to us. The 
usefulness of the survey depends on the frankness with which you answer 
each question.
DEFINITIONS:
    Several questions refer to our law firm, senior managers, managers, 
supervisors, offices or clients. Use the following definitions when 
answering questions referring to these terms:
    Law Firm: The component organizations of the Office of General 
Counsel, i.e., Professional Staff Groups, 02 Reg., 22 Offices of 
Regional Counsel and detailed OIT professionals.
    Senior Managers: Those in executive positions who supervise 
managers, i.e., General Counsel, Deputy General Counsel.
    Managers: Those in management or executive positions who supervise 
first-line supervisors and team leaders, i.e., Assistant General 
Counsel, Principal Deputy Assistant General Counsel, Regional Counsel.
    Supervisors: First-line supervisors; those who are responsible for 
employees' performance appraisals and leave approval, i.e., Associate 
General Counsel, Deputy Assistant General Counsel, Assistant Regional 
Counsel.
    Office: Professional Staff Group, 02 Reg., Office of Regional 
Counsel or detailed OIT professionals. Please think of this office when 
answering questions about offices in the survey.

    Clients: Anyone who uses or receives the services that your office 
provides.
    Note: Please do not use your browser back or forward buttons as 
this will cause you to lose previously entered data.

    In what component of the Office of the General Counsel do you work?

      VACO
      Regional Counsel Office

    Please select the appropriate office.

      Front Office
      PSG1
      PSG2
      PSG3
      PSG4
      PSG5
      PSG6
      PSG7
      02REG
      VACO OIT Professionals

    Please select the appropriate office.

      Region 1 (Bedford)
      Region 2 (Brooklyn)
       Region 3 (Baltimore)
      Region 4 (Philadelphia)
      Region 5 (Atlanta)
      Region 6 (Bay Pines)
      Region 7 (Cleveland)
      Region 8 (Nashville)
      Region 9 (Jackson)
      Region 10 (Hines/Chicago)
      Region 11 (Detroit)
      Region 12 (St. Louis)
      Region 13 (Temple/Waco)
      Region 14 (Houston)
      Region 15 (Minneapolis)
      Region 16 (Denver)
      Region 18 (San Francisco)
      Region 19 (Phoenix)
      Region 20 (Portland)
      Region 21 (Buffalo)
      Region 22 (Indianapolis)
      Region 23 (Winston)
      Regional OIT Professionals

JOB SATISFACTION INDEX
    Please select the answer which corresponds to your current level of 
satisfaction.

    Compared to what you think it should be, how satisfied are you with 
the type of work that you currently do?

      Not at all Satisfied
      Not Very Satisfied
      Neither Satisfied Nor Dissatisfied
      Somewhat Satisfied
      Very Satisfied

    Compared to what you think it should be, how satisfied are you with 
the amount of work that you are able to accomplish?

      Not at all Satisfied
      Not Very Satisfied
      Neither Satisfied Nor Dissatisfied
      Somewhat Satisfied
      Very Satisfied

    Compared to what you think it should be, how satisfied are you with 
the amount of pay that you receive?

      Not at all Satisfied
      Not Very Satisfied
      Neither Satisfied Nor Dissatisfied
      Somewhat Satisfied
      Very Satisfied

    Compared to what you think it should be, how satisfied are you with 
relationships you have with your coworkers?

      Not at all Satisfied
      Not Very Satisfied
      Neither Satisfied Nor Dissatisfied
      Somewhat Satisfied
      Very Satisfied

    Compared to what you think it should be, how satisfied are you with 
the quality of direct supervision you receive?

      Not at all Satisfied
      Not Very Satisfied
      Neither Satisfied Nor Dissatisfied
      Somewhat Satisfied
      Very Satisfied

    Compared to what you think it should be, how satisfied are you with 
the quality of managers?

      Not at all Satisfied
      Not Very Satisfied
      Neither Satisfied Nor Dissatisfied
      Somewhat Satisfied
      Very Satisfied

    Compared to what you think it should be, how satisfied are you with 
the number of opportunities for promotion?

      Not at all Satisfied
      Not Very Satisfied
      Neither Satisfied Nor Dissatisfied
      Somewhat Satisfied
      Very Satisfied

    Compared to what you think it should be, how satisfied are you with 
working conditions in your job?

      Not at all Satisfied
      Not Very Satisfied
      Neither Satisfied Nor Dissatisfied
      Somewhat Satisfied
      Very Satisfied

    Compared to what you think it should be, how satisfied do you think 
the clients of your organization are with the products and services it 
provides?

      Not at all Satisfied
      Not Very Satisfied
      Neither Satisfied Nor Dissatisfied
      Somewhat Satisfied
      Very Satisfied

    Compared to what you think it should be, how satisfied are you with 
the amount of praise that you receive?

      Not at all Satisfied
      Not Very Satisfied
      Neither Satisfied Nor Dissatisfied
      Somewhat Satisfied
      Very Satisfied

    Compared to what you think it should be, how satisfied are you with 
the quality of work you provide to the organization?

      Not at all Satisfied
      Not Very Satisfied
      Neither Satisfied Nor Dissatisfied
      Somewhat Satisfied
      Very Satisfied

    Compared to what you think it should be, what is your current level 
of satisfaction with your job?

      Not at all Satisfied
      Not Very Satisfied
      Neither Satisfied Nor Dissatisfied
      Somewhat Satisfied
      Very Satisfied

    If you have worked in the same office for the previous 24 
consecutive months, please select the response which corresponds to 
your overall level of satisfaction compared to what it was 2 years ago. 
If you have not worked in the same office for the previous 24 
consecutive months, please select ``does not apply''.
    Compared to what it was 2 years ago, how is your overall level of 
satisfaction with your job?

      Much Less
      Somewhat Less
      About The Same
      Somewhat More
      Much More
      Does Not Apply
                  ORGANIZATIONAL ASSESSMENT INVENTORY
    Please answer all of the following questions thinking about your 
experiences over the past 6 months.

    Your office consists of the individuals who report to your 
supervisor.
    Indicate the extent to which you agree or disagree with each of the 
following statements by selecting the appropriate response. Please use 
the ``do not know'' answer only if you feel you do not have enough 
information to answer the question accurately.
    My manager/supervisor is fair in recognizing individual 
accomplishments.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    My manager/supervisor is fair in recognizing team accomplishments.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    In my office employees are rewarded for providing high quality 
products and services to clients.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    I am given a real opportunity to develop my skills in my office.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    New practices and ways of doing business are encouraged in my 
office.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    Products, services and work processes are designed to meet client 
needs and expectations.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    Clients of my office are informed about the process for seeking 
assistance, commenting, and/or complaining about products and services.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    Managers/supervisors set challenging and yet attainable performance 
goals for my office.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    People treat each other with respect in my office.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    Disputes or conflicts are resolved fairly in my office.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    Employees in my office are involved in improving the quality of 
products, services, and work processes.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    Employees in my office have the job-relevant knowledge and skills 
necessary to accomplish organizational goals.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    Employees in my office have the appropriate supplies, materials, 
and equipment to perform their jobs well.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    Employees in my office are protected from health and safety hazards 
on the job.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    Managers/supervisors understand and support employee family/
personal life responsibilities in my office.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    A spirit of cooperation and teamwork exists in my office.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    My manager/supervisor reviews and evaluates the progress toward 
meeting the goals and objectives of the organization.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    This organization does not tolerate discrimination.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    Differences among individuals are respected and valued in my 
office.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    Managers/supervisors work well with employees of different 
backgrounds in my office.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    My manager/supervisor provides fair and accurate ratings of 
employee performance.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    If I were able, I would leave my current job because I am 
dissatisfied.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    The safety of workers is a big priority with management where I 
work.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    My job requires that I work very fast.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    I have a lot of say about what happens on my job.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    The people I work with take a personal interest in me.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    The people I work with can be relied on when I need help.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    I feel a strong personal connection with the mission of VA.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    VA cares about my general satisfaction at work.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    Members in our law firm are able to bring up problems and tough 
issues.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    It is safe to take a risk in our law firm.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know
                             CULTURE SURVEY
    This set of questions relates to your office's culture. Please read 
each statement. Indicate the extent to which you agree or disagree by 
selecting the appropriate response. 
    My office is a very dynamic and entrepreneurial place. People are 
willing to stick their necks out and take risks.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree

    My office is a very formalized and structured place. Bureaucratic 
procedures generally govern what people do.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree

    Managers/supervisors in my office are warm and caring. They seek to 
develop employees' full potential and act as their mentors or guide.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree

    Managers/supervisors in my office are risk-takers. They encourage 
employees to take risks and be innovative.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree

    Managers/supervisors in my office are rule-enforcers. They expect 
employees to follow established rules, policies, and procedures.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree

    Managers/supervisors in my office are coordinators and coaches. 
They help employees meet the office's goals and objectives.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree

    The glue that holds my office together is loyalty and tradition. 
Commitment to this office runs high.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree

    The glue that holds my office together is commitment to innovation 
and development. There is an emphasis on being first.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree

    The glue that holds my office together is formal rules and 
policies. People feel that following the rules is important.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree

    The glue that holds my office together is the emphasis on tasks and 
goal accomplishment. A production orientation is commonly shared.
      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree

    My office emphasizes human resources. High cohesion and morale in 
the organization are important.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree

    My office emphasizes growth and acquiring new resources. Readiness 
to meet new challenges is important.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree

    My office emphasizes permanence and stability. Keeping things the 
same is important.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree

    My office emphasizes competitive actions and achievement. 
Measurable goals are important.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree

    Policies and procedures in my office are helpful because they 
clarify roles and responsibilities.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree

    Policies and procedures in my office help staff save time and 
effort.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree

    Policies and procedures in my office represent the best way of 
doing things.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree

    Rules, policies and procedures in my office are revised when they 
no longer work effectively.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
                                TRAINING
    Please read each statement. Indicate the extent to which you agree 
or disagree by selecting the appropriate response.

    Employees in my office receive the training they need to do their 
jobs.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    Employees in my office receive the training they need to use new 
tools and technologies.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    Training opportunities are fairly allocated across my office.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    My managers/supervisors support employee efforts to learn.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    This organization gives a high priority to providing appropriate 
training.
      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    Additional training would assist me in my job.

      Strongly Disagree
      Disagree
      Neither Agree Nor Disagree
      Agree
      Strongly Agree
      Do Not Know

    I would benefit from additional training in the following topic(s): 
(Choose all that apply).

      Benefits law.
       Business law (collections, enhanced use, sharing 
agreements/joint ventures, procurement, real property)
      Employment law (EEO, MSPB, FLRA, Title 38, government 
ethics).
      Health law (torts or intellectual property)
       Other specialized legal services (appropriations, 
ADR, information law, miscellaneous).
      Technology (GCLaws, Westlaw)

    I find the following types of training to be the most effective: 
(Choose all that apply).

      Online training.
      Monthly OGC conference training (telephone).
       OGC Regional Training Conferences (Personnel law, 
Information law, torts).
      Commercial CLE courses.

    Compared to what you think it should be, how satisfied are you with 
the training that you have received from the law firm?

      Not at all Satisfied
      Not Very Satisfied
      Neither Satisfied Nor Dissatisfied
      Somewhat Satisfied
      Very Satisfied
Demographics
    What is your gender?

      Male
      Female

    What is your age?

      Less than 20 years
      20-29
      30-39
      40-49
      50-59
      60 years or older

    Are you Spanish, Hispanic, or Latino?

      Yes
      No

    What is your race? (mark one or more)
      White
      Black or African American
      American Indian or Alaskan Native
      Asian
      Native Hawaiian or other Pacific Islander

    How long have you been with VA?

      Less than 6 months
      Between 6 months and 1 year
      Between 1 and 2 years
      Between 2 and 5 years
      Between 5 and 10 years
      Between 10 and 15 years
      Between 15 and 20 years
      More than 20 years

    What is your level of supervisory responsibility?

      None
      Supervisor
      Manager
      Senior Manager

    Prior to your full-time VA employment were you ever a trainee in 
the VA?

      Yes
      No

    Thank you for participating in the VA All Employee Survey. Your 
input is very important to us.

                               __________

               Employee Survey Results for 2009 and 2010

                   All-Employee Survey (AES) Response
                            Averages for OGC
------------------------------------------------------------------------
           Fiscal Year                   2009                2010
------------------------------------------------------------------------
Total Respondents                               457                 615
------------------------------------------------------------------------
Factor                                         Avg.                Avg.
------------------------------------------------------------------------
Job Satisfaction
------------------------------------------------------------------------
Work Type                                      4.38                4.37
------------------------------------------------------------------------
Work Amount                                    3.98                4.07
------------------------------------------------------------------------
Pay Satisfaction                               3.71                3.71
------------------------------------------------------------------------
Coworker                                       4.37                4.36
------------------------------------------------------------------------
Supervision                                    4.20                4.21
------------------------------------------------------------------------
Senior Management                              4.08                4.17
------------------------------------------------------------------------
Promotion Opportunity                          3.03                3.03
------------------------------------------------------------------------
Work Condition                                 4.00                3.95
------------------------------------------------------------------------
Customer Satisfaction                          4.32                4.38
------------------------------------------------------------------------
Praise                                         3.95                3.98
------------------------------------------------------------------------
Work Quality                                   4.53                4.59
------------------------------------------------------------------------
Satisfaction                                   4.13                4.07
------------------------------------------------------------------------
Satisfaction-2yrs                              3.40                3.29
------------------------------------------------------------------------
Organizational Assessment
------------------------------------------------------------------------
Cooperation                                    4.07                4.04
------------------------------------------------------------------------
Conflict Resolution                            3.79                3.81
------------------------------------------------------------------------
Diversity Acceptance                           4.23                4.24
------------------------------------------------------------------------
Coworker Support                               4.01                4.00
------------------------------------------------------------------------
Supervisory Support                            3.96                4.07
------------------------------------------------------------------------
Customer Service                               4.00                4.04
------------------------------------------------------------------------
Innovation                                     3.77                3.85
------------------------------------------------------------------------
Resources                                      4.00                4.08
------------------------------------------------------------------------
Safety Climate                                 3.79                3.92
------------------------------------------------------------------------
Leadership                                     3.90                3.87
------------------------------------------------------------------------
Rewards                                        3.93                3.99
------------------------------------------------------------------------
Employee Development                           3.92                3.92
------------------------------------------------------------------------
Work/Family Balance                            4.41                4.45
------------------------------------------------------------------------
Planning/Evaluation                            4.21                4.22
------------------------------------------------------------------------
Job Control                                    3.47                3.46
------------------------------------------------------------------------
Demands                                        3.63                3.68
------------------------------------------------------------------------
Retention                                      3.91                3.85
------------------------------------------------------------------------
Engagement                                                         3.91
------------------------------------------------------------------------
Psychological Safety                                               3.62
------------------------------------------------------------------------
Civility                                       4.09                4.08
------------------------------------------------------------------------
Culture
------------------------------------------------------------------------
Group                                          3.47                3.53
------------------------------------------------------------------------
Entrepreneurial                                3.07                3.15
------------------------------------------------------------------------
Bureaucratic                                   3.25                3.31
------------------------------------------------------------------------
Rational                                       3.63                3.70
------------------------------------------------------------------------
Enabling                                                           3.40
------------------------------------------------------------------------
Training
------------------------------------------------------------------------
Training                                       3.78                3.78
------------------------------------------------------------------------



                                 

                                     Committee on Veterans' Affairs
                       Subcommittee on Oversight and Investigations
                                                    Washington, DC.
                                                      July 30, 2010

Honorable Eric K. Shinseki
Secretary
U.S. Department of Veterans Affairs
810 Vermont Avenue, NW
Washington, DC 20420

Dear Secretary Shinseki:

    Thank you for the testimony of the Honorable Will A. Gunn, General 
Counsel, U.S. Department of Veterans Affairs, accompanied by Phillipa 
Anderson, Assistant General Counsel; and Michael Hogan, Assistant 
General Counsel at the U.S. House of Representatives Committee on 
Veterans' Affairs Subcommittee on Oversight and Investigations hearing 
that took place on June 30, 2010, entitled ``Evaluating the U.S. 
Department of Veterans Affairs Office of General Counsel.''
    Please provide answers to the following questions by Friday, 
September 10, 2010, to Todd Chambers, Legislative Assistant to the 
Subcommittee on Oversight and Investigations.

    1.  It seems that the OGC was going to be consulted about the 
action that the Office of Information and Technology (OI&T) needed to 
take with regards to the appropriate action recommendation from the VA 
Office of Inspector General (OIG) in the August 2 OI&T reports (#09-
01123-195 and #09-01123-196). What advice did you give OI&T to 
implement the OIG recommendations from the two reports regarding:

       a.  Collecting money back;
       b.  Employees that received their positions through nepotism; 
and
       c.  Taking appropriate action regarding hiring relatives, direct 
hire authority expiration, and collecting on educational payments.

    2.  OI&T concurred with the OIG Recommendations but now they seem 
to be backsliding and disagreeing with the nepotism finding due to 
guidance from OGC. Has OGC given OI&T advice about the issues in the 
two OIG reports?

       a.  We hear that though VA concurred with the recommendation at 
the time of the report, not 10 months later they are not concurring due 
to advice they are receiving from OGC. Please explain what type of 
advice your office is producing that is convincing officials to counter 
their OIG report concurrences.

    3.  Are there any VA regulations that are giving Regional Offices 
and regional counsels troubles either because VA is having issues 
interpreting them or because the regulations are obtuse?

       a.  Have you heard any complaints from VBA Regional Office or 
regional counsels about VA regulations?
       b.  If so, what is your office doing about fixing this problem?

    4.  Has VA consulted with, or plans to consult with the Department 
of Health and Human Services, which has jurisdiction over the HITECH 
Act regarding the notification requirements within the Act, and what 
advice has that Department provided VA with respect to instances of 
security breaches wherein over 500 individuals were affected, but not 
all within one jurisdiction or State?
    5.  Please respond in detail to the testimony provided by Mr. Tully 
during the hearing.
    6.  What incentives does VA provide to obtain the best individuals 
from the private sector to work for the Office of General Counsel?
    7.  It appears that VA is planning on hiring additional attorneys 
to limit the number of cases assigned to each attorney at 50 or fewer. 
Additionally, in the testimony provided, it appears that training for 
attorneys in contract law will be a top priority. Will this training 
include the Regional Counsels, as well as those at Headquarters, the 
National Acquisition Center (NAC), and the Technology Acquisition 
Center (TAC) in Eatontown, NJ?
    8.  Is there an entity that oversees the ethical conduct of VA 
attorneys? Who does a party go to if they believe there is unethical 
conduct on the part of a VA attorney? What recourse does the VA have 
when they find out that an attorney may have altered documents?

    Thank you again for taking the time to answer these questions. The 
Committee looks forward to receiving your answers. If you have any 
questions concerning these questions, please contact Martin Herbert, 
Majority Staff Director for the Subcommittee on Oversight and 
Investigations at (202) 225-3569 or Arthur Wu, Minority Staff Director 
for the Subcommittee on Oversight and investigations at (202) 225-3527.

            Sincerely,

                                                       David P. Roe
    Harry E. Mitchell
                                          Ranking Republican Member
    Chairman

    MH:tc

                               __________

                        Questions for the Record
               The Honorable Harry E. Mitchell, Chairman
              Subcommittee on Oversight and Investigations
         The Honorable David P. Roe, Ranking Republican Member
              Subcommittee on Oversight and Investigations
                  House Committee on Veterans' Affairs
          ``Evaluating the U.S. Department of Veterans Affairs
                      Office of General Counsel''
                             June 30, 2010
    Question 1: It seems that the OGC was going to be consulted about 
the action that the Office of Information and Technology (OI&T) needed 
to take with regards to the appropriate action recommendation from the 
VA Office of Inspector General (OIG) in the August 2, OI&T reports 
(#09-01123-195 and #09-01123-196). What advice did you give OI&T to 
implement the OIG recommendations from the two reports regarding:

    Question 1(a): Collecting money back

    Response: The Office of Inspector General (OIG) recommended that VA 
issue bills of collection to six employees due to the failure of Office 
of Information and Technology (OIT) supervisors to follow VA policy 
regarding academic degree training. On August 13, 2010, we advised OIT 
we could find no legal support for the proposition that the employees 
are liable for money paid for their educational training.

    Question 1(b): Employees that received their positions through 
nepotism; and

    Response: Additionally, OIG recommended issuing bills of collection 
due to nepotism violations. Regarding these recommendations and 
question 1.b., as noted in response to question 2 there was 
insufficient evidence to demonstrate the nepotism statute was violated.

    Question 1(c): Taking appropriate action regarding hiring 
relatives, direct hire authority expiration, and collecting on 
educational payments.

    Response: One employee was demoted and another admonished based 
upon OIG's findings regarding the improper hiring of relatives. The 
Office of Human Resources and Administration is currently working with 
OIT to take appropriate action regarding employees appointed 
erroneously. The servicing Human Resources Offices are now in the 
process of taking the appropriate corrective actions for those 
individuals identified in the OIG report as well as other similarly 
situated OIT employees identified in a subsequent Agency-wide review.

    Question 2: OI&T concurred with the OIG Recommendations but now 
they seem to be backsliding and disagreeing with the nepotism finding 
due to guidance from OGC. Has OGC given OI&T advice about the issues in 
the two OIG reports? Please explain what type of advice your office is 
producing that is convincing officials to counter their OIG report 
concurrences.

    Response: At the time that OIT concurred with the OIG nepotism 
recommendations, OIT had not received any Office of General Counsel 
(OGC) legal advice regarding the recommendations. Further, OIT agreed, 
in its responses to the recommendations, to take ``appropriate action'' 
after consulting with OGC and the Office of Human Resources and 
Administration. In July 2010, we advised OIT that, based upon the 
elements of the nepotism statute (5 U.S.C. Sec. 3110) and case law 
involving alleged violations of that statute, there was insufficient 
evidence to establish that the OIT supervisor violated the statute.

    Question 3: Are there any VA regulations that are giving Regional 
Offices and regional counsels trouble either because VA is having 
issues interpreting them or because the regulations are obtuse?

    Question 3(a): Have you heard any complaints from VBA regional 
Offices or regional counsels about VA regulations?

    Question 3(b): If so, what is your office doing about fixing this 
problem?

    Response: We have not received complaints from Regional Offices or 
Regional Counsel about the VA-benefit regulations applied by the 
Regional Offices. However, OGC's Office of Regulations Management is 
overseeing VA's major project to reorganize and rewrite all of the VA's 
claims-adjudication regulations in Part 3 of the Code of Federal 
Regulations. This effort will make the compensation and pension 
regulations easier to read, understand, and apply.

    Question 4: Has VA consulted with, or [does it have] plans to 
consult with the Department of Health and Human Services, which has 
jurisdiction over the HITECH Act regarding the notification 
requirements within the Act, and what advice has that Department 
provided VA with respect to instances of security breaches wherein over 
500 individuals were affected, but not all within one jurisdiction or 
State?

    Response: We have contacted the Privacy Division, Office of Civil 
Rights, which is the Health and Human Services (HHS) office responsible 
for promulgating the regulations governing notification of data 
breaches under the HITECH Act. That office declined to offer specific 
legal advice on notification in any particular situation, but instead 
referred us to what it considered to be clear guidance in the 
Supplementary Information in the Federal Register notice of the interim 
final rule, ``Breach Notification for Unsecured Protected Health 
Information; Interim Final Rule,'' 74 Fed. Reg. 42740 (Aug. 24, 2009). 
That notice specifically addresses the instance of security breaches 
wherein over 500 individuals were affected but not all within one 
jurisdiction or State, and specifies that ``if a covered entity 
discovers a breach of 600 individuals, 200 of which reside in Virginia, 
200 of which reside in Maryland, and 200 of which reside in the 
District of Columbia, such a breach did not affect more than 500 
residents of any one State or jurisdiction, and as such, notification 
is not required to be provided to the media pursuant to Sec. 164.406.'' 
74 Fed. Reg. at 42752.
    An OGC attorney also contacted an individual identified after the 
June 30, 2010, Subcommittee hearing by a minority staff member as a 
Senior Advisor at HHS who may have felt our interpretation was 
incorrect. That individual informed us that she did not work in the 
area of HITECH, and did not recall voicing such an opinion.

    Question 5: Please respond in detail to the testimony provided by 
Mr. Tully during the hearing.

    Response: Please see the enclosed August 19, 2010, letter from 
General Counsel Will Gunn to Chairman Mitchell, which responds to Mr. 
Tully's testimony.

    [The letter is being retained in the Committee files.]

    Question 6: What incentives does VA provide to obtain the best 
individuals from the private sector to work for the Office of General 
Counsel?

    Response: If necessary, OGC could offer recruitment incentives 
including bonuses and repayment of student-loan debt to recruit well-
qualified talent. However, in recent years there has been no shortage 
of very well-qualified applicants, including applicants from the 
private sector, for OGC vacancies anywhere in the United States.

    Question 7: It appears that VA is planning on hiring additional 
attorneys to limit the number of cases assigned to each attorney at 50 
or fewer. Additionally, in the testimony provided, it appears that 
training for attorneys in contract law will be a top priority. Will 
this training include the Regional Counsels, as well as those at 
headquarters, the National Acquisition Center (NAC), and the Technology 
Acquisition Center (TAC) in Eatontown, NJ?

    Response: OGC is committed to the professional development of the 
people who provide legal services to the Department. A clear need, in 
light of the increasing workload in the area of contracts and 
procurement, is for significant training of OGC's contracting 
specialists, regardless of their geographic locations or particular 
areas of specialization.
    As the question suggests, OGC has lawyers who specialize in 
contract law located throughout the United States. This includes the 
various Offices of Regional Counsel, the National Acquisition Center, 
the Technology Acquisition Center, and VA Central Office. OGC has 
provided considerable specialized training for these lawyers in the 
recent past. A Masters Level Contract Law Symposium will be held in 
early November 2010 for OGC contract-law specialists throughout OGC.
    Creating our own training allows OGC to address and train to meet 
developing needs within our specialized department. There are also 
significant opportunities to be developed through other tried-and-true 
government professional-development programs, and mining these programs 
is another part of the overall OGC effort. We have developed a close 
relationship with both the United States Army Judge Advocate General's 
School in Charlottesville, Virginia, and the Department of Justice 
National Advocacy Center in Columbia, South Carolina. This allows our 
VA OGC contract attorneys to regularly attend the specialized training 
offered at those excellent institutions.
    Finally, we have the flexibility to implement individualized legal-
education opportunities in the field of government contracts for our 
contracts specialists--no matter their level of education or experience 
upon hiring. Our goal remains the development and retention of highly 
skilled contract-law specialists.

    Question 8: Is there an entity that oversees the ethical conduct of 
VA attorneys? Who does a party go to if they believe there is unethical 
conduct on the part of a VA attorney? What recourse does the VA have 
when they find out that an attorney may have altered documents?

    Response: There are three entities that oversee the ethical conduct 
of VA attorneys and complaints about unethical conduct can be made to 
any of these:
    OGC Management--Internally within OGC, the General Counsel, the 
Deputy General Counsel, and subordinate managers and supervisors under 
their direction--Assistant General Counsels, Deputy Assistant General 
Counsels, Regional Counsels, and Assistant Regional Counsels--oversee 
VA attorneys' professional conduct on a daily basis. OGC supervisors 
are always available to receive feedback on the conduct of their 
employees and (as warranted) to take appropriate action which could 
involve remedies up to removal from employment.
    OIG--Internally within VA, the OIG can be said to exercise 
oversight over all VA employees' conduct, including that of VA 
attorneys, by investigating matters that may suggest criminal activity, 
waste, fraud, abuse, or mismanagement of VA programs. Parties who 
believe they have knowledge of unethical conduct by a VA attorney that 
may rise to any of these levels may report it to the OIG for review and 
possible investigation.
    Bar Associations--All attorneys who practice within OGC must be 
members in good standing of a State bar. The legal bars of every State 
and the District of Columbia oversee ethical conduct of all attorneys 
who are licensed within their jurisdictions. Bar officials enforce 
strict standards of professional conduct, breaches of which subject 
attorneys to sanctions that can include suspension and disbarment. The 
bars of the various States and the District of Columbia have publicly 
available information about how to report unprofessional conduct by 
attorneys they have licensed.
    Alteration of official documents in order to deceive a court or 
administrative tribunal would be grounds for an attorney's dismissal 
from VA employment and for referral to his or her State bar for 
consideration of further disciplinary action.

                                 
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