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An Air Force reservist fired from her job at the Veterans Affairs Department's San Diego medical center after serving in the first Gulf War will be paid for $53,000 in financial losses after the Office of Special Counsel mediated the case with the agency.

Former Air Force Reserve Lt. Col. Judithe Hanover Kaplan accused the VA of firing her from her job as a temporary senior nurse at the medical center because of her reservist duties. OSC pursued a resolution of the matter under the 1994 Uniformed Services Employment and Reemployment Rights Act, which protects reservists' jobs while they're performing military service.

"I wasn't looking for money, I was looking for satisfaction," Kaplan said. "I feel it was really unfair for military folks who are trying to serve their country, and especially [those] working for a government agency, to be penalized for serving."

The case is a demonstration of a project set up by the 2004 Veterans Benefits Improvement Act that gives OSC the authority to investigate federal claims for persons who have Social Security numbers ending with an odd number. Cases involving persons with even-numbered Social Security numbers will continue to be investigated by the Labor Department's Veterans Employment and Training Service. OSC also investigates cases involving prohibited personnel practices.

The law prohibits discrimination against workers due to their service in the Armed Forces Reserves, National Guard or other uniformed services. Potential employers are prohibited by the law from denying employment to service members due to their affiliation with the military and the law allows guards veterans and reservists to reclaim their civilian jobs once they return from military service or training.

Hired for a full-time temporary position, Kaplan was to serve for 13 months at the VA hospital, but during the first two and a half months she was absent 22 days because of military leave and illness connected with her service in the first Iraq war. The agency accused her of failing to following established procedures, lacking availability, failing to ask for leave appropriately and volunteering for activities without her supervisor's permission.

Kaplan, who has since retired from the service as a colonel and lives in Virginia, says she believes the VA hospital could have used her skills as a battlefield nurse with a doctorate and a law degree. "Part of my anger was that the VA, which serves veterans, would do something like this," Kaplan said.

After OSC determined that the agency violated the reemployment rights act, the agency negotiated a settlement for Kaplan with the VA. She will receive a lump-sum payment of $53,000 for pecuniary losses and all negative documents relating to her firing will be removed. The managers involved in her dismissal will receive training for the reemployment law, but the agency did not admit fault.

"USERRA's anti-discrimination provisions apply to all employment positions, whether they are full time, part time, term, seasonal, or nonrecurrent," Special Counsel Scott Bloch said. "I am pleased that the agency ultimately understood its responsibilities to service members and resolved this case fully and fairly."

The Merit Systems Protection Board finalized and approved the settlement on Jan. 14, 2005.

VA spokesman Terry Jemison said the agency is committed to complying with the laws protecting reservists called to active duty and will work to make sure managers "appreciate our responsibilities to employees called to serve in uniform."

"The circumstances of any individual case such as that of Ms. Kaplan's can be very complex," Jemison said.

Kaplan praised the work of the OSC and her lawyer, Francisco Ruben. "What was very satisfying was that one government agency would still represent me against another government agency. That showed me separation of powers," Kaplan said. "I see it as a truly objective agency to be able to do what [OSC] did."

Behaving Badly

A Washington-based government watchdog organization will receive an $897,331 payment for legal fees from the Commerce Department after a 10-year legal battle over documents requested by the group under the Freedom of Information Act.

The ruling brought a scathing rebuke from Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia, who wrote that Commerce's actions were outside the boundaries of professional conduct.

"Since Judicial Watch began its discovery in the fall of 1996, it has consistently and persistently uncovered evidence of misconduct and unlawful withholding of documents by [Commerce]," Lamberth wrote. "It has been demonstrated that [Commerce] wrongfully withheld documents, destroyed documents, and removed or allowed the removal of others, all with the apparent intention of thwarting the FOIA and the orders of this court."

Lamberth said agency's conduct was reprehensible and its lawyers "repeatedly strayed far outside the boundaries of professional conduct," and noted that Judicial Watch lawyers were responsible for aggravating the situation.

Judicial Watch President Tom Fitton said his organization asked for a 25 percent enhancement to the fee for the difficulty of working with Commerce, bringing the total to about $1.25 million, but Lamberth denied the motion.

The 10 years of litigation involved document searches by Commerce that were "inadequate, unreasonable and unlawful," and the agency wrongfully withheld documents forcing Judicial Watch to sue, the ruling stated.

"We now hope that government agencies start paying attention to the FOIA law and its requirements," Fitton said. "This is one of many recent court decisions indicating that the government will have to compensate people for FOIA litigation."

Inquiries to the Commerce Department for comment was referred to the Justice Department, which did not respond to a request for comment.

Judicial Watch v. Department of Commerce, 95-133, 97-289, 97-2416 and 96-2747, July 29, 2005.

COMMENTS

• I guess that I would disagree with the previous poster. No the money should not be taken out of the Secretary's account. But, it should be public knowledge what the rating was for the official(s) who authorized the waste. Their reports should be very short, just saying: Decision to take illegal action greatly embarrassed the United States of America. Cost of decisions was $800,000 to the taxpayers, and indirect costs over one million dollars. Unsatisfactory performance. That short entry should just about clear things up. Make folks responsible for their actions. How can an entity even think of applying pay for performance, and let those individuals not suffer a minimum of an eight grade demotion. When management sees that they will have to pay for their mal-deeds then we may see some improvement. Oh, and agency, develop some integrity, and admit when you have made a mistake. No integrity, no leadership. GovExec.com reader Posted August 23, 2005 9:26 AM
• Taxpayer is right. Commerce should have to pay the $800,000 out of the funds they use to ferry around the Secretary, keep his plants watered, put makeup on him to pretty him up before speeches at the Chamber of Commerce... Algernon Posted August 19, 2005 3:34 PM
• Not only did the agency not admit fault but the judge made them give away over $800,000 of my money. What is the punishment for Commerce? They don't care if they give away my money. Heads should roll at Commerce - anyone connected with this case and their bosses! taxpayer Posted August 16, 2005 6:35 AM