Federal Government

Agency Capture -- Winning

When it comes to federal agencies, the concept of "winning" can be a lot fuzzier than it is in the private sector.

By  
on

Winning is important. There are absolutely times when the government has a “must win” case. But as a government attorney, you occasionally need to think about more than just recording a “win” in the discrete matter in front of you.

Like so many of us, I spent my 2L summer at a Biglaw firm. And like many of its peers, the firm in question had a variety of robust transactional and litigation practice areas. There were elements of both that appealed to me, and the firm graciously allowed me to sample assignments from both. Yet I knew I would have to actually pick a direction eventually. At one point I asked a fellow summer which general area he preferred, and without much hesitation he answered, “litigation.” Why? I don’t remember his exact words, but his answer was essentially, “because in litigation, there’s an answer. Someone wins.”

But come to think of it, what is “winning?”

On one level, the answer may be obvious. Suppose the government has significant evidence that an individual has committed a serious crime. A win is if the prosecutor convicts that person of the crime in question. Or suppose an agency is trying to terminate an underperforming federal employee, and the employee appeals to the Merit Systems Protection Board or beyond. A win is if the termination survives appeal. Or suppose someone brings a tort claim against the government that isn’t justified on the facts or the law. A win is to send that pesky plaintiff packing with empty pockets, instead of pockets filled by public dollars. Right?

This list of simple examples probably isn’t all that different from easy answers to the same question an attorney in private practice might give. If someone files a consumer class action against the company you have been retained to represent, a win is generally to settle on favorable terms or otherwise dispose of the case as cheaply as possible, transaction costs and all. If someone breached a long-term supply contract that your client heavily depends on in its day-to-day operations, a win is getting some kind of remedy to make the client whole.

I could go on, but the bottom line in all these scenarios is that a win is a judgment or other binding resolution in favor of the party you represent, or on the most favorable terms realistically available. And maybe that is the answer most of the time. That’s a “win.” After all, these are common scenarios.

But sometimes it isn’t clear what winning is, or at minimum it might be harder to define and obtain than a judgment in favor of the party you represent. The nature of the government as an institution increases the potential for these scenarios for government attorneys.

Sponsored

In private practice, winning and losing very frequently comes down to dollars. I’m oversimplifying, of course, but business entities exist to make money, and individuals aren’t overly fond of losing money either. It follows that if one can monetize the consequences of any particular matter, a private attorney can reliably identify when there are long-term consequences of a proceeding beyond its direct result that are more important than a simple “win.” For example, if an attorney can win a case by taking a particular position, but that position will cause a significant backlash against the client in the media, that could have such significant business consequences that it makes sense to leave that win on the table and settle as quietly as possible, even if this course is a more expensive resolution for that discrete matter. A similar scenario might exist if, in order to win, a client must establish facts that will heighten its legal risk in a different way down the road.

The government obviously needs to worry about these kinds of long-term monetary consequences as well.  But the government also has long-term interests that are not capable of being easily monetized, or even easily identified.

For example, suppose the prosecutor with strong evidence I mentioned above is going against a sub-par adversary who misses the fact that a crucial link in the evidentiary chain is supplied solely by an unreliable witness. As a result, the prosecutor convicts an innocent man. Has any legitimate governmental interest been served here? Is this a “win?”

Of course we’ve all been exposed to this example before. We’ve all heard the maxim, both in law school (and on television…) that a prosecutor has a broader duty to serve justice. But this dynamic exists in a less obvious way in many areas of government practice. I’ll leave it to the reader to dream up examples specific to myriad areas of substantive law, but suffice it to say that the government’s role of enforcing the law and promoting the general welfare means we don’t necessarily want it to be going into every single case with a “nothing matters but the win” attitude.

Additionally, there are considerations that might arise from a purely institutional perspective. The government isn’t going anywhere; it is the ultimate long-term litigant. Most attorneys would have a hard time resisting taking a position that is likely to win the case and is justified on the facts and the law at the time. But it is crucial to ask what happens in the long term if the court adopts that position. If the position depends on a reading of a statute that minimizes the agency’s discretion and flexibility, and the court adopts it, have you “won” by taking that position? And the tradeoff might not be clear at the time you are considering it. Minute and nuanced patterns in the law that emerge over the course of decades can have enormous consequences once they are fully developed.

Sponsored

This is not to say that a government attorney shouldn’t provide zealous advocacy of the government’s position. Far from it. I mean only to suggest that some matters call for a thoughtful and nuanced understanding of the government’s true interest. Only then can you truly understand what it means to win.

Brian D. Griffin began his legal career as an associate in the New York office of a Biglaw firm, focusing mostly on litigation. He is currently a staff attorney in the U.S. Department of Veterans Affairs Office of General Counsel. His duties include litigation, rulemaking, and programmatic legal advice. Brian attended New York University School of Law and Georgetown University for undergraduate, majoring in Government. You can reach him at BGriffin8134@gmail.com.

DISCLAIMER: The statements and views expressed in this column are entirely Griffin’s own. They do not represent the views of the Department of Veterans Affairs or the United States.

Topics

, , ,