Labor Day 2019: Provide VA whistleblowers with necessary legal tools

Every year, we celebrate Labor Day on the first Monday in September. According to the U.S. Department of Labor, the holiday “constitutes a yearly national tribute to the contributions workers have made to the strength, prosperity, and well-being of our country.” 

While much of our focus on veterans’ issues is rightfully focused on veterans themselves, Labor Day presents an opportunity to provide commentary on the work force at the Department of Veterans Affairs (VA). Currently, VA employs the largest number of federal employees across all agencies — with 16.3 percent of the federal work force employed at the agency.

Despite VA’s noble mission, “to fulfill President Lincoln’s promise, ‘to care for him who shall have borne the battle, and for his widow, and his orphan,’” the VA workforce has recently struggled with low morale and confusion regarding the meaning of accountability at the agency, despite recent legislation aimed at facilitating the removal of corrupt management and protecting whistleblowers. 

This past June and July, several VA whistleblowers testified in a series of hearings before the House Veterans’ Affairs Committee that they still faced hostile opposition to reporting waste, fraud and abuse within the agency, despite public promises from leadership that they would no longer tolerate such retaliatory behavior. 

They also testified that the VA Office of Accountability and Whistleblower Protection, which was created to specifically address such issues, was largely ineffective, often furthering retaliation against whistleblowers rather than assisting them.

“I can personally attest that reporting waste, fraud, and abuse, inconsistencies in claims processing, substandard care, medical errors and wrongful deaths is asking to have your career killed by VA leaders who are more interested in covering up wrongdoing than in the lives of veterans,” testified Jacqueline Garrick, founder of Whistleblowers of America, an organization that seeks to provide whistleblowers with guidance and peer support, “we can do better. We must do better.”

Although lawmakers frequently dismiss concerns about VA employees as favoring bureaucrats over veterans, such concerns are, in part, short-sighted. In order for VA to provide veterans with the highest quality of care, we must also address the issues plaguing the VA workforce. 

First, many VA employees — approximately 90,000 of them, or nearly one-third of VA’s workforce — are veterans themselves.

Second, and perhaps more importantly, without a fully functioning workforce nor unrestricted access to community care, veterans will not be able to receive the highest-quality care they are entitled to at the VA or elsewhere. The more time and effort VA devotes to addressing employee retaliation, the less time is spent caring for veterans directly.

Given the lackluster success in addressing the issues that ail VA’s workforce to date, perhaps it is time to re-think how we deal with whistleblowing at the VA. One suggestion is to borrow from the statutory scheme applicable to VA benefits claims, which provides a generous standard of proof in which the veteran is given the benefit of the doubt, and any ambiguous laws are resolved in the veteran’s favor. 

As Congress continues to grapple with how to handle whistleblower issues and the future of the Office of Accountability and Whistleblower protection, it should examine the standard of proof applied in whistleblower cases. 

Perhaps if VA mangers were legally required to give whistleblowers the benefit of the doubt, this would help to shift the culture and perception of whistleblowing at VA. 

In Addington v. Texas, the Supreme Court declared that: 

“The function of a standard of proof, as the concept is embodied in the Due Process Clause and in the realm of factfinding, is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” 

In other words, the standard of proof that applies to any given proceeding reflects our societal judgement about how the risk of error should be distributed between litigants. In this context, given VA’s long-standing and on-going culture of retaliation, it seems that whistleblowers are deserving of a standard that is balanced more toward their favor.

According to the U.S. Court of Appeals for Veterans Claims, the benefit of the doubt standard for veterans benefits, found in Section 5107(b) of Title 38, U.S. Code, “is in keeping with the high esteem in which our nation holds those who have served in the Armed Services. 

It is in recognition of our debt to our veterans that society has through legislation taken upon itself the risk of error.” The Court further explained that the “standard is similar to the rule deeply embedded in sandlot baseball folklore that ‘the tie goes to the runner.’”

Currently, whistleblowers across all agencies, not just the VA, must prove their claim by a preponderance of the evidence. The Supreme Court has previously defined this standard of proof as indicative of “society’s ‘minimal concern with the outcome’ and a conclusion that the litigants should ‘share the risk of error in roughly equal fashion.’”

Given the often unequal power dynamic that exists between individuals and the government, as well as the fact that whistleblower concerns at VA often involve matters of life and death for veterans, Congress should certainly evaluate whether a change in the required standard of proof for whistleblower claims by VA employees makes sense going forward. 

This Labor Day, as we pause to appreciate “the contributions workers have made to the strength, prosperity, and well-being of our country,” we can certainly improve VA employees’ abilities to make such contributions to the strength, prosperity, and well-being of our veterans by providing whistleblowers with the legal tools they need to make the VA a better place. 

Rory E. Riley-Topping served as a litigation staff attorney for the National Veterans Legal Services Program (NVLSP), where she represented veterans and their survivors before the U.S. Court of Appeals for Veterans Claims. She also served as the staff director and counsel for the House Committee on Veterans’ Affairs, Subcommittee on Disability Assistance and Memorial Affairs for former Chairman Jeff Miller (R-Fla.). You can find her on Twitter: @RileyTopping.