This week, I spoke with a familiar and dear friend, Attorney Mary Dryovage. We chatted a bit, discussed the status of her writ of certiorati, exchanged tales about cruel agency attorneys and said our goodbyes. Mary represented me at the Merit Systems Protection Board (MSPB) back in 2005.
I later exchanged a few emails with another friend, Jim Black. Jim is a MSPB appellant now in the appeal phase at the Court of Appeals for the Federal Circuit (CAFC). He too enjoys an excellent relationship with his attorney, Michael Baranic. Yet, an excerpt from Jim’s email reads, “I ended up selling a vacation property to help finance my attorney fees and my journey is still not over.”
It’s a tough relationship for both attorneys and their clients. When casually discussing this subject, Mary said – jestfully – something to the effect of: Please don’t tell anyone I care about federal employees and ethics. Like me, she does, sometimes to the point that it hurts us emotionally and from a financial perspective.
In a debate over the benefits of being represented versus going pro se, I once said, “One would never play poker with anyone with an unlimited bankroll, no matter how bad the opponent might be. Here, when you go pro se, you change the game.” Ironically, in this debate, I was actually defending the idea that going to court without an attorney is a little like conducting surgery on yourself. The poker analogy was a concession, but one that now — many years later — seems apt as well.
In any case, back to Mary, whom I still consider a saint as well as an advocate. While we laugh about some of the crazy ha-ha things the government does to its own people — like hold depositions in thirty degree warehouse meat lockers — it’s really the tragic that sticks. I continue to be haunted by the story of a dismissed employee needing legal assistance, but living in her car. As you might guess, it’s not a case an attorney can take – unless they want to be living in their car too.
(My personal advice: if you are looking for representation, regardless of the opening retainer, expect to spend at least $20,000. If you can’t sacrifice at least that much, don’t play at this high-stakes table. You cannot bluff at this agency game. If you do decide to hire an attorney, I highly recommend Mary Dryovage (N. CA) and Michael Baranic (S. CA), attorneys mentioned in this article. Both are leaders in the field of federal employee representation.)
19 users commented in " Attorney Relationships in Federal Employee Cases "
Follow-up comment rss or Leave a TrackbackMy experience….When you’re in Pro Se the Judge steps all over you and laughs in your face. If your represented, they’ll still try to step over your attorney but encounter problems which Judge’s hate. Unless there is absolutely no way to rule against you, expect every ruling to go against you. The Judge will go to pains to reserach case law in favor of the agency and will never research any case law that supports the employee.
Interesting comment, USACE. I wanted to point out some of the differences and points of view depending on where you’re litigating/appealing.
Mary Dryovage and I had a slightly different conversation on the pro se thing. I told her I liked District Court, and she was quick to point out that I’m in the minority. Most people — attorneys included — dislike litigating in District Court.
Her points were valid. You’ve got to be quick on your feet, well-prepared and aggressive enough to survive the big leagues. I’ve been lucky. I got those judges Obama likes to refer to as “having empathy for the people.” (Knock on wood and hope they continue to honor the right of a citizenry to speak for itself)
Now as far as MSPB, I hate MSPB. Attorneys hate MSPB, even the AJs that work for MSPB hate MSPB. It has nothing to do with the format. I intensely dislike MSPB because at MSPB facts don’t count.
(In some ways, that makes hiring an attorney all the more urgent. It is more often process over merit that gets cases from start to end. And that’s true for all court systems, administrative and otherwise.)
At times I have felt like you’re my Guardian Angel, now I’m sure of it because of the timing.
Today, I have received a fee agreement to sign by an Attorney who said he will represent me in my EEO case. He has helped me with a consultation and advice throughout the year. I am ready to be heard by AJ for appropriate remedy (have had mediation, the investigation, endured much retaliation) and that hearing should happen in Q1 or Q2 of 2010. My attorney’s fee agreement waiting for my signature says this: You agree to pay an INITIAL RETAINER of FIVE THOUSAND ($5,000.00), for the first TWENTY HOURS of LEGAL SERVICES which is due immediately: This amount is non-refundable once TWENTY HOURS of attorney time have been expended. THE PARTIES AGREE THAT CLIENT WILL NOT BE RESPONSIBLE FOR MORE THAN THE $5,000.00 RETAINER for services, REGARDLESS OF HOW MANY HOURS OF SERVICE ARE PERFORMED BY ATTORNEY.
You mentioned that I need to be prepared to spend 20k… yikes. What is it that I need to look for or may change that where I’ll be spending 4x that amount of $5000?
thanks, Karen
Karen,
It’s hard to say what your agreement states, so what I’ll say is this:
If you have questions, ask the proposing party about it now.
In my own experience, I’ve found that most attorneys are honest people trying to find an honest agreement that satisfies both your needs and theirs. In addition to the total outlay question, you should also inquire about what happens if either party wishes to terminate the relationship. These cases can drag on for a long time, so I would be surprised if there wasn’t some clause regarding the ending of an agreement as well.
Best of luck on your case and I hope you prevail in your pursuit of equity. Your freedom from discrimination is our freedom too.
2 Question for anyone who knows the answers:
1. Do Board Remands count against the AJ in anyway (like on his performance ratings, etc.)?
2. Can a Judge be removed from his position if he has excess remands and/or if he is seen to make continuous prejudicial/biased errors?
There has to be something that scare these Judge’s from losing their jobs. It seems ludacris for them to continue holding a job when they are making errors over and over again.
Disabled,Homebound,SSI Please help.
Thanks, Charlotte.
One more question. Do you know where I can find decision statistics on the AJ assigned to my case?
On EEOC cases, they’re pretty secretive about who made the decision. On MSPB cases, they can be hand-culled from initial decisions. Knowledge of EEOC AJs is mostly word of mouth.
There’s a lot to learn… thanks.
p.s. Dryovage ROCKS!
Just filed an abuse of discretion against AJ at MSPB and fraud charges against Agency.
Talking to the Washington Post on why is the MSPB and OSC allowing whistleblowers to be retaliated against when they are performing their duty as federal service employees.
A letter has surfaced concerning a male employee at the Department of Health and Human Services who watched porn on his government computer for years…and his supervisor and colleagues knew since he had a blanket covering up his cubicle. IT forensics found tens of thousands of hits on pornographic websites…full frontal nudity and individuals engaged in sexual intercourse.
When caught the unethical employee was allowed to resign and walk away with all his money and toys unharmed. He also got a clean record which includes a reference for a new job. Probably just moved to another federal agency. No prosecution for fraud even though he was not working each day, misuse of government property…no discipline or downside for this guy. He walked out the door courtesy of Curtis Coy, the Deciding Official and Ethics Officer at HHS Administration for Children and Families.
Perhaps someone at the Post or other media can find out why so many whistleblower cases are settled with a back dated resignation…in exchange for the removal which was wrongful.
The WPA is violated by Agencies daily. Tax payers pay both for Agency counsel to defend the wrongdoers and then the tax payer pays for the settlement. The lawsuits are dragged out by Agencies and AJ’s…there is no such thing as an Agency saying wait a minute this employee is right, we need to commend them not harm them. The poor employee’s life is destroyed and they pay big for legal counsel. Why? Because no one in the entire federal government has the backbone to stop political appointees from running the MSPB/OSC/EEOC and make ethical duties applicable to ALL FEDERAL EMPLOYEES INCLUDING LEGAL COUNSEL FOR AGENCIES.
President Obama, there are no equal rights or whistleblower protectins at the Department of Health and Human Services. That includes the Food and Drug Administration, the Center for Disease Control, Administration for Children and Families (Headstart!) and all the operational divisions. There are whistleblowers galore being destroyed by partisian politicals and mentally cruel career federal service military tyrants. How the hell can they provide health care to the nation when they deny COBRA to wrongfully terminated whistleblowers???
I am willing to help any whistleblower and/or discrimination victim fight their way through the the MSPB and EEOC.
How did you find out about this case bre? I worked for HHS and found some of the divisions to be incredibly corrupt. I was a whistle blower fileing 17 OSC disclosures and 18 OIG disclosures. I finally received a response to a FOIA request I made nearly two years ago and they had the audacity to send me information put together in 3/09 when the info I requested was for 11/07. They are some of the worse game players I have ever seen.
Stella,
I know HHS well. The NTEU is a toothless tiger that allows whistleblowers to suffer. The president of the NTEU is at FDA and has told me of the many whistleblowers there being destroyed. The union does nothing because their employees fear retaliation.
HHS EEOC office is so corrupt it holds back evidence and goes beyond the 180 days to complete an investigation in order to give the Agency time to build a case against the employee on conduct. They don’t go for work performance problems because then they would have to put the employee on a PIP.
During the Bush Administration, the Administration for Children and Families diverted oversight funding from many childrens programs such as HeadStart, RHY, Domestic Violence, etc., to Abstinence and other White House initatives. Many legally mandated grant programs did not have any oversight for the entire 8 years. Some grantees did not have programs or buildings at all and since no federal employees ever paid a visit, the grantees got away with fraud. ACF would not collect money owed to the federal government or stop new funding going to the grantees.
Some grantees did not finger print or background check their employees who abused children. Many grantees are unlicensed by the States to care for children. Some grantees have forced labor contracts for runaway and homeless youth. Forced labor as in slavery. ACF is the guardian of the anti-human trafficking. Some grantees produced false documents and when proved to be false documents, ACF looked the other way.
ACF KNOWS ALL THIS AND CONTINUES TO FUND SOME OF THE SAME WORST OFFENDERS TO THIS DAY.
ACF also presented information before Congress fraululently reporting sucessful outcomes in computerized data to show the oversight was performed particularly in the Western Regions as required by law. Sharon Fujii, the Regional Administrator had a program that was illegal to perform oversight. She paid one grantee (peer review) including all expenses to review another grantee. All of which were friends of each other. The training and technical assistance contractor did nothing except charge fees to write grant applications. ACF then issued letters to the grantees on DHHS/ACF stationery stating the grantee was in compliance although no federal employee ever visited the grantees.
Here are a few names of grantees that are running unlicensed group homes to care for minors in prohibition of State of California law.
Larkin Street
Alameda Family Services
Emergency Housing Consortium
San Diego Youth and Community Services
The San Jose Mercury News produced an article by Karen de Sa in October 2008, right before the election about the fraud and the HHS Inspector General investigation.
HHS took no action against the federal employees who unethically helped grantees commit crimes. Instead they harmed the whistleblower. The MSPB refused to help the whistleblower and the cases continue.
Don’t expect any help from MSPB. They were able to effectively kill whistleblower protection (re: case of Robert MacLean – former Federal Air Marshal) and they, on occasion, create their own rules/laws. They have also affirmed the right of an agency to order an employee to provide information from privileged conversations (doctor/patient, husband/wife; clergy). What’s next, no attorney/client privilege? Expect the unexpected with MSPB.
The only bright spot is that Mr. McPhie, the current chairman at MSPB will be replaced in the near future (term has expired).
Jim,
This is why OSC, MSPB and EEOC need serious reform. The WPA has always had protections and the new legislation is critical. However, it is federal agencies that are charged with the duty of upholding the law. Federal agencies are mandated to be model employers under EEOC law. That includes that agency counsel should not be wasting federal tax payer money shielding the wrongdoers and harming the whistleblower. Meanwhile, the tax payer pays the tab for gross mismanagement.
An admin agency must adhere to the Federal Rules of Civil Procedure and EEOC law. If there is a situation where an AJ violates any law, rule or regulation, including violating doctor/patient, marital, etc., privilege, the Appellant should ask the AJ if answering would violate privilege, refuse to answer, note the abuse of discretion and file a report with the IG.
As for your comment on violating attorney client privilege…MSPB does that all the time. They don’t copy in attorneys of record on decisions about their clients. They force appellants to have conference calls without counsel knowing this is a violation. MSPB does not provide notice that appeallants have the right to go directly to US District Court and bypass the entire admin process, etc., etc.,…
One thing to remember is this, there is no attorney-client privilege between agencies and AJ’s. All telephone calls, emails, mailings, converations are all subject to discovery when filing suit against MSPB.
As far as McPhie—-he has a new supervisor and I have to believe that the President would never allow the violations of law, including basic due process of law rights to continue.
Holder—step forward, please. Whistleblowers are being tortured too! US health care; H1B1 is at issue…oversight. I’m watching the feds…how about you???
My concern with the privilege is how far will MSPB take this issue? If you’re in civil or criminal trial and you discuss strategy with your attorney you cannot be compelled/ordered to discuss your conversation. The question is: As a government employee, do you give up this right? Does the agency have the right to order an employee to provide info from a privileged conversation? If your spouse tells you something in private that is non work related, can an agency order you to provide the information?
This is why I now find myself outside looking in. The agency wanted information about a conversation I had with my wife, non work related. I was finally ordered to provide the information. I provided the info and was given my walking papers for “providing misleading information as to the source of information.” If during an administrative interview the communication privilege does not exist, so be it. If we retain those rights, then its time for the Court of Appeals to step up to bat.
As far as the IG, hang it up. Many employees have this belief that the IG is an all powerful, independent agency. Wrong. They are toothless tigers and they work for the agency. If an IG speaks out against the agency they are asked to leave. Case in point: Clark Kent Irvin – the first IG for DHS. He voiced his concerns over several new DHS programs and his reward: “Let us show you the exit door.” Many “independent” reports that are issued by the IGs are first reviewed by the agency and revisions are made prior to publishing.
Yes, we will see changes down the road, but for now we have to deal with the leftovers and strap hangers from the previous administration.
I was wrongfully removed from government service, I appealed through MSPB, MSPB and the agency offered a settlement, the settlement agreement was to hire me back, purge my record of derogatory information, change the “removal” to a “resignation”.
I didn’t have a lawyer because I couldn’t afford one at the time, so I accepted the settlement, nonetheless, I just received a confirmation of another job offer, but the job was declined from new agency saying they didn’t want to hire me because of derogatory information. Nothing negative was suppose to be said about me to the new agency especially if it was true.
The old agency did not follow the settlement agreement, so I hired a new lawyer in July and I only met with him once, I haven’t bothered him too much, should I and how often should I bug him? Do you think I will win. There were breaches of the settlement agreement.
Thank you
KB
Also, this lawyer stated to me that he knew the players in my agency, and it was funny because he named everybody that I worked with and personnel that work in the Civilian Personnel Advisory Center, so this is why I felt this lawyer was a good choice.
If anyone responds can they also send to my email address, thank you ver much.
I spent a year and a half fighting appeals with the MSPD and WPBA people. I was removed from my G7 position as a domiciliary assistant at the Zablocki Medical Center in Milwaukee.
(I Supervised up to 195 vets in an alcohol/drug rehab program.)
My crime was reporting to the program manager and only the program manager that my relief was impaired on cocaine while working the night shift and had to be treated in the ER.
Mr. Rhodes stated to me when I told him that “I know he is using cocaine but I should not have heard that from you’. Two days later the man had me before the union to start the inquisition. There was no progressive punishment. There was no connection between my excellent work record. There was no case which recieved a harsher penalty. Assistant director Berkeley and Director Beller both stated during the hearin process that they knew the person was impaired but they were investigating.
They used the fact that I had entered cprs records for an employee which they admit are entered intp over 200 times a day.
None of the other employees who entered during the course of their work day were fired
I believe Beller, and Berkeley fired three people to cover up the fact that they were knowinly allowing impaired providers to provide care to the unknowing vets attempting to withdraw from the habit.
I have talked to senators, congressmen, and even written the Presdent. They get a picture from the VA that I underminded the character of the VA with my egregious act. The fact is I believe in the VA and was trying to help while management is trying to hide and destroy.
The Chicago and New York MSPB heard 112 cases in 2008 and did not find for the appellents once. They are not protecting employee, they are in bed with the administration.
Is there anyone out there that can help me present this case to the public. They need to know of the dangerous care afforded to our Vets and that the system is chopping of the heads of those who attempt to save it.
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