Panic Street Lawyer: What he said

Sunday, 11 August 2013 06:00 AM Written by  Jay Hornack

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The court systems in Pittsburgh had three high-profile cases added to their dockets this week, and the three arise from separate and unrelated events that allegedly happened within a one-mile radius of my residence (I am neither an attorney on, nor a witness in, any of these three cases).

State criminal homicide charges were brought against a physician neighbor alleged to have poisoned his physician wife in their home, and an arrest was made in the shooting of a former college football player outside the Original Hot Dog Shop. In federal district court, a civil lawsuit was filed by the family of a patient at the Veterans Administration Hospital on University Drive, who died from Legionnaire’s disease.

I have a self-imposed “gag order” on the two criminal cases. And I had no intention to write about any legal issues associated with the 2011-2012 Legionnaires’ outbreak at the Pittsburgh VA – that is, until I read a Post-Gazette letter to the editor that made me gag on my Tuesday morning breakfast.

The letter, authored by James Bukes of Mt. Lebanon, expresses a “theory” as to why an August 1 VA Office of the Inspector General report found a “lack of compliance in Veterans Administration hospitals with the VA’s directive to conduct an action plan to contain Legionnaires’ disease.” A “theory” should be based on a careful and rational examination of the facts, but the letter author sets forth the following as fact:

1. “The VA, like all federal agencies, is required to give first consideration in hiring to veterans.”

2. “[F]ederal agencies must consider affirmative action programs in hiring.”

3. “[G]overnment unions are very strong and I think they work to prevent the discharge of even the most incompetent employees.”

4. “[E]mployees have recourse to the Merit Systems Protection Board and the Equal Employment Opportunity Commission if they are threatened with discharge.”

With this factual foundation, the author concluded that “government supervisors do not even attempt to take adverse action against anyone, no matter how poorly an employee performs.” Rather than blaming “VA directors and top administrators for disasters,” the author concludes that “the blame should … be put on the federal hiring and discharge standards that have been in place for the past 30 years.”

As an employee-side lawyer during that entire time period, I would argue, first, that this theory’s factual foundation has very serious cracks in it. For starters, my recollection of the year 1983 is very different from the author’s recollection. In April of that year, I saw thousands of unemployed steelworkers protesting the presence in Pittsburgh of a president who, two years earlier, famously broke a strike by a government union of professional air traffic controllers. Those 1983 protests contributed to the one and only reform of federal labor legislation in the past 30 years: the WARN Act of 1988, and that law simply states that large companies have to give 60 days’ notice before they discharge workers as a result of plant closings or mass layoffs.

In fact, online research makes clear that all of the standards or entities mentioned above have been in place for longer than just the past generation of employment:

-- The EEOC – 1965

-- Affirmative action (via executive order) – 1961

-- The American Federation of Government Employees union – 1932

-- The MSPB and its predecessor, the U.S. Civil Service Commission – 1883

-- Veterans’ preference legislation – 1865

But I do not want to appear to be nitpicking. My first objection to the letter -- based upon my experience consulting with public-sector clients over the past 30 years -- is that some federal government employees (1) are discharged for poor performance and (2) are told by lawyers and union reps that challenges to their discharges will likely be unsuccessful.

I have two other objections to the letter. The aforementioned August 1 VA Office of the Inspector General report was actually the second report issued by that office on the subject of the Legionnaires’ outbreak (the first one was issued back on April 23). In addition, there will be a Congressional hearing on the subject, with testimony under oath, in Pittsburgh on September 9, as well as civil litigation discovery (including depositions) and trials. Instead of jumping to conclusions of blame at this time -- and citing “one agency supervisor” who “once told (him) that he wouldn’t fire an employee even if that employee did nothing on the job” as factual support for his “theory” -- the letter author ought to wait until all reliable evidence was in. That is what judges do.

Or so I have been led to believe … and that brings me to my final objection to the letter. You see, I know the writer: I had Social Security disability cases in front of Judge Bukes for many years (the Post-Gazette identified him, under his name and community, as “a retired federal administrative law judge”). While I found his erroneous American employment law history and his prejudging of the VA situation to be sad, I was angered by his comment that some federal employees “take advantage of the situation and treat their job as a sinecure,” with “the situation” being limitations on employment at will.

The judge’s comment made me angry because his letter never tells the reader that Social Security administrative law judges are in their own labor union (the AALJ) with legal protection if they are threatened with discharge. It was not until February 28, 2013 that the SSA issued a ruling clarifying “the agency processes for addressing allegations of unfairness, prejudice, partiality, bias, misconduct, or discrimination” by ALJs.

But that ruling does not mean that Judge Bukes’ union does not continue to fight for its members. In January, the AALJ sued the SSA acting commissioner in Chicago federal district court, alleging that the agency’s productivity goal for ALJs -- established to reduce the massive case backlog -- establishes “case quotas” in violation of the Social Security Act and the Administrative Procedures Act. The former SSA commissioner had this response to the union’s lawsuit: ‘‘There are a very small number of malcontents who want to litigate or put political pressure on the agency rather than do their work.’’

Labor unions really are like criminal defense attorneys. It is popular to criticize them -- until we need one. Then we all want the most zealous advocate we can find.

(Image: Security guards on patrol the sidewalk at a Veterans Affairs hospital in Oakland earlier this year. Keith Srakocic/Associated Press)

The Panic Street Lawyer is a personal opinion column by attorney Jay Hornack. Contact him right here at This email address is being protected from spambots. You need JavaScript enabled to view it. and follow Jay on Twitter: @panicstlawyer

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