U.S. Judge Assails VA for ‘Misconduct’ in Suit

Veterans Administration officials engaged in “a pattern of misconduct” while battling a class-action lawsuit by atomic-era veterans, a federal judge said Thursday. U.S. District Judge Marilyn Hall Patel also assessed the VA about $115,000 in fines and legal fees.

She accused the agency of “callous disregard for all processes of court” and of stonewalling the veterans’ lawsuit with “distortions, misrepresentations and misleading information.”

Patel specifically accused VA officials of willfully destroying documents even though they knew that the documents would be needed in the veterans’ attempt to overturn the Civil War-era limit of $10 on the amount veterans may pay a lawyer to represent them in VA hearings. The limit was intended by Congress to protect veterans from avaricious lawyers.

The veterans, who were exposed to radiation during atomic bomb tests or while serving as occupation forces in Japan after World War II, have argued that the limit denies them proper representation and that, without counsel, they contend that disability claims are routinely denied, usually improperly.

In her ruling, Patel fined the VA $15,000 to cover court costs in hearing the case and ordered the agency to reimburse the legal costs of the veterans’ lawyers. This was estimated by one of those lawyers, Gordon Erspamer, to be $100,000.

Since the case is being handled for free as a public service by Erspamer’s law firm, Morrison & Foerster of San Francisco, Erspamer said the money will be used to pursue other public-service lawsuits.

Will Monitor VA

Patel also ordered the selection of a special master, or independent legal expert, to monitor the VA to make sure that it complies with future document requests and other legal procedures.

She also ordered the VA to pay for the cost of trying to reconstruct the contents of the files it threw away last summer at nearly the same time as those papers were sought in the larger lawsuit. Erspamer said he may try to rebuild the main files from papers held in VA regional offices.

Patel also instructed the VA to put up posters in VA offices describing the types of files being sought in the case and warning against their destruction. Additional posters were ordered to inform VA employees of their rights to talk freely to the veterans’ lawyers without being punished by their supervisors.

These second posters apparently were ordered after the judge was telephoned by at least one VA worker who said that his job had been threatened because of his testimony in the case. Because of that call, Patel also suggested that the U.S. Justice Department conduct an investigation into possible criminal obstruction of justice.

‘Novel Remedy’

“This is a very unusual, very far-reaching order (to counter) what amounts to a massive pattern of misconduct,” Erspamer said. “It was a very novel remedy framed to the specific points of this case. On the whole, it gives us everything we wanted.”

Gena Cadieux, a Justice Department lawyer representing the VA, declined to comment.

Details of the VA’s lack of cooperation unfolded during three days of testimony last month by 10 mid-level VA employees from Washington.

During that hearing, VA officials conceded that some court-requested files had been destroyed and others were simply not released, but they contradicted each other about whether those actions were mere mistakes or deliberate attempts to obstruct justice.

Allegations that files were systematically culled and potentially damaging material destroyed or withheld were first made last year in two anonymous letters--apparently written by a VA employee--that were mailed to the veterans’ lawyers.

The letters were supported by several VA employees, including legal adviser Ronald B. Abrams, who said he found or had received from other employees undisclosed material that he believed should have been made public.

Another employee, Barry S. Boskovich, said some co-workers had bragged to him during coffee breaks about throwing out some files sought in the case even after the documents were formally requested.

Several employees swore it was the first general purge of the files in at least 10 years. It is unclear whether the destruction of files was completed before or after the formal request for the files was received by the VA.

The first anonymous letter warning of illegal hiding of documents was received July 11--and a week later, the remaining files, including 12 boxes of papers saved at the last minute from shredders, were sealed under a federal order.

Erspamer originally sought documents from the VA to support his claim that atomic-era veterans are routinely and wrongly denied benefits because of the VA’s current arbitration process. The “non-adversarial” process, he said, routinely denies claims without properly holding hearings or notifying veterans.

Order Overturned

Patel struck down the $10 limit in 1984, but her order was overturned by the U.S. Supreme Court, except in certain narrowly defined cases where the informal system is proven inadequate. Erspamer is now trying to prove that.

As many as 250,000 veterans are believed to have been exposed to the atomic tests, either during test-bomb explosions in Nevada, or on Pacific atolls or asoccupation troops sent to the atomic-bombed cities of Hiroshima and Nagasaki. About 5,000 of these veterans are involved in the class-action suit.

The government pays about $1,600 a month for full disability and about $600 a month in death benefits to family members of deceased veterans, Erspamer said.