Enclosed please find a copy of the Court s minute order closing the Packer case.

From: Lett, Gloria Sent: Thursday, June 12, 2014 2:08 PM To: Lynch, Chris (Cardin); Noonan, Mary McDermott; Morrison (Mamaux), Lale; Kaufmann, Marlene; Milosch, Mark Cc: Rogers, Ann; Gore, Russell; Hayes, Mark Subject: Packer Litigation Chris, Mary, Michele, Lale, Marlene and Mark: Enclosed please find a copy of the Court s minute order closing the Packer case. Now that the case is over, we thought it might be helpful to briefly summarize the history of the litigation and identify some lessons learned and issues for the Commission to consider in the event there is Congressional Accountability Act ( CAA ) litigation in the future. Among other things, we suggest that the Commission work to amend the CAA to make clear that the Commission is a covered employer, and that Commission employees are statutorily entitled to assert claims under the statute. We also strongly advise the Commission to determine the appropriate legal entity to handle cases of this type going forward and adopt a non-political/non-partisan driven process for directing such litigation. Background OHEC attorneys conducted a thorough factual investigation of this case, which included extensive witness interviews and document review over the course of nearly four years. We also had multiple opportunities from the Fall of 2010 to the present (at mediations, in conducting discovery, and at court appearances) to observe Ms. Packer, and assess her credibility, firsthand. As a result, it was clear to us that Ms. Packer s lawsuit was, plain and simple, a form of manufactured legal extortion. While some of Ms. Packer s allegations began with a kernel of truth, Ms. Packer grossly distorted events and circumstances in order to create a fiction that she experienced sexual harassment and retaliation. Accordingly, as we stated to Commission management shortly after our initial investigation and consistently over the past three and a half years, we do not believe that Ms. Packer experienced sexual harassment or retaliation. Rather, we believe Ms. Packer s substantive allegations are falsehoods, without basis, and frivolous. Nonetheless, part of Commission management initially directed us not to seek to dispose of this case by filing a motion to dismiss despite our advice that we believed the motion had a good chance of being granted by the court. In fact, in the face of the results of OHEC s investigation undermining Ms. Packer s claims (including relevant documentation), when presented with that information one individual representing Commission management responded (regarding Ms. Packer): I believe her. As we advised Commission management on several occasions, our investigation showed that, with the exception of two of the less-egregious comments Representative Hastings admitted making (out of the handful alleged), the conduct that Ms. Packer alleged was inappropriate either did not occur, or was not inappropriate. Among other things, there are communications over the course of Ms. Packer s employment with the Helsinki Commission that directly contradict a number of her allegations. For instance, in one email Ms. Packer alleges that she had a crush on Representative Hastings. In another

email, she tells Fred Turner that she loves him. OHEC spoke with every single Helsinki Commission employee Ms. Packer identified in her Complaint (often on multiple occasions) as well as many other witnesses. These witnesses include Rep. Hastings, Rep. Smith, and Sen. Cardin. We repeatedly found that witnesses credibly denied substantive statements Ms. Packer attributed to them and/or credibly denied having observed instances of alleged harassment that Ms. Packer claims occurred in their presence. Moreover, our conclusions concerning Ms. Packer s lack of credibility and motive for pursuing her claims against the Commission is further buttressed by nearly four years of interacting with her in defending the litigation. At times Ms. Packer has exhibited behavior that is bizarre (including conveniently-timed fainting spells both in court and during mediation). At other times Ms. Packer has been confrontational, threatening, and dishonest. Further supporting our conclusions regarding the allegations, when we tried to discuss the inconsistencies and contrary evidence with Ms. Packer, she began to manufacture claims against some of the witnesses. Indeed, it is important to note that, over the course of the litigation, Ms. Packer made allegations of harassment, retaliation, inappropriate and offensive behavior, and/or collusion, not only against Rep. Hastings and Fred Turner, but against Robert Hand, Janice Hedwig, Alex Johnson, Marlene Kaufmann, Mark Milosch, Kyle Parker, Daniel Redfield, Erica Schlager, and Mischa Thompson. Ms. Packer also accused the Commission and its representatives during both Rep. Smith s and Sen. Cardin s chairmanships of spying on her, having her followed throughout the D.C. Metropolitan area (by, among other individuals, a large-headed man in a truck, thin / slender white men, and heavy set, black women who trailed her into stores or sidled up next to her in restaurants). Ms. Packer also claimed that her phones were tapped, her personal e-mail account was hacked, that spyware was installed in emails sent to her, and that someone associated with the Commission was deliberately soil[ing] the sofa in her work space on a nightly basis during 2012. These are all allegations and quotations from Ms. Packer s court filings and discovery requests. Ms. Packer s tendency to manufacture wild allegations extended even to the district and magistrate court judges assigned to the case whom she accused (again in court filings) of bias, ineptitude, and specifically with respect to Judge Facciola, of being part of a white male fraternity with one of OHEC s attorneys. Finally, OHEC s view of the falsity of Ms. Packer s substantive allegations was also influenced by our assessment of what we believe to be her true motivation: promoting and selling her aptly-titled, selfpublished fictional novel: A Personal Agenda. This belief is bolstered by the fact that Ms. Packer began publicizing her book in June 2010, shortly before she initiated proceedings against the Commission under the CAA. Furthermore, in a press release, Ms. Packer stated that her book was inspired by her own experiences and seeks to provoke its readers by examining... sexual harassment in Congress. Moreover, in two television interviews readily available on the Internet, Ms. Packer acknowledged that she was working aggressively to seek publicity to promote her novel. These interviews were broadcast approximately three months prior to Ms. Packer s press conference with Judicial Watch announcing her complaint against the Commission, Rep. Hastings, and Fred Turner. Although Ms. Packer alleged (and told at least two witnesses) that the book was finished before she began working for the Commission, the documents and emails we reviewed showed the exact opposite Ms. Packer was actively revising the book, having it edited, arranging for it to be published, and soliciting media interviews while she was working for the Commission in Vienna. Any reasonable person would, at the very least, consider this backdrop in assessing Ms. Packer s credibility with regard to her allegations of sexual harassment and retaliation.

The Need for the Appropriate Legal Entity to Handle the Case As you may recall, Ms. Packer initially filed her lawsuit in 2011. OHEC -- which is a nonpolitical office that represents all House employing offices regardless of party -- strongly advised that the Commission be represented by another entity out of a concern about the political undercurrents associated with this case. We did not believe it was appropriate for OHEC to singlehandedly represent the Commission (a non-house entity) because we did not want this office to be used as a political battering ram to pit one Member of the House against another. Nor did we want this office to be potentially caught in the cross hairs of conflicts between Members of the House and Senate. The options on the table for possible representation included the Department of Justice, outside counsel, or OHEC in conjunction with the Senate Chief Counsel for Employment (SCCE). Sen. Cardin and SCCE balked at the idea of SCCE handling the matter, taking the position that Ms. Packer s underlying claims arose at a time when a Member of the House served as the Commission s Chair. Despite our strong concerns, we were directed to handle the case. We followed that direction and have sought to act in a manner we firmly believe to be in the best interest of the Commission and the taxpayers. Indeed this approach is consistent with OHEC s core mission. Fulfilling that mission, however, has been particularly challenging in this case because, for most of the time this matter has been pending, the leadership of the Commission has been intensely divided regarding the defense of this litigation and we have at times received contradictory direction on how to proceed. For instance, when the case was in the administrative process at the Office of Compliance in 2010 (before the lawsuit was filed), we explained to Commission management that the Commission is not listed as an employing office in the CAA, and, therefore, neither the Office of Compliance or a federal district court would have jurisdiction to entertain a CAA claim by Ms. Packer. Initially, the management of the Commission advised us to pursue this legal argument (and there are documents we received to confirm this). However, in early 2011, after a change in leadership, the Commission management directed us to reverse course and, rather than seek to amend the statute to provide this coverage, ordered us to ignore a perfectly valid and strong argument that the court did not have jurisdiction over Ms. Packer s claims. When the management of the Commission changed in 2013, the Commission reversed course again and authorized us to file a motion for judgment on the pleadings intended to dispose of the case. The Court granted that motion in part dismissing the majority of Ms. Packer s claims. At the hearing on that motion, Judge Collyer seemed to indicate that, had we filed the motion earlier at the dismissal stage (as OHEC recommended initially to the Commission), the Court might have been more inclined to dismiss all of the claims. In other words, the case could have been over in its entirety several years ago (with Ms. Packer receiving nothing). Thereafter, Ms. Packer attempted to add new claims for retaliation that included time periods when both Senator Cardin and Representative Smith were Chair. We were completely successful in opposing Ms. Packer s efforts to add these new claims against the Commission claims which we characterized, and the Court agreed, were patently insubstantial and frivolous. The inconsistent litigation strategy also impacted settlement efforts. Indeed, the manner in which this case was resolved was not ideal and, going forward, we strongly recommend that the Commission consider adopting regulations or policies to avoid this type of situation. As you know, Ms. Packer was represented by numerous lawyers, all of whom quit shortly after attempts at mediation. The first lawyer quit after the initial OOC mediation was unsuccessful in the Fall of 2010. The second set of lawyers quit after the second OOC mediation was unsuccessful in late 2010. The third set of lawyers

(Judicial Watch) quit after a mediation before Magistrate Judge Kay was unsuccessful in 2012. As you also may recall, Ms. Packer opposed the effort by Judicial Watch to quit, but the Court eventually allowed them out of the case. The fourth lawyer quit after another unsuccessful mediation in front of Magistrate Judge Kay. (It was at this mediation that Ms. Packer stated she would fall down and die before she would ever voluntarily leave her employment with the Commission.) The fifth lawyer was appointed by the Court to assist Ms. Packer with yet another mediation, but that lawyer quit before the mediation was even scheduled, citing irreconcilable differences. In addition, Ms. Packer claimed in her discovery responses that she owed attorneys fees to at least one other lawyer, bringing her total to six sets of lawyers. The final mediation was held before Magistrate Judge Deborah Robinson and Ms. Packer (appearing pro se) refused to be in the same room with OHEC. Judge Robinson spent a considerable amount of time talking one-on-one with Ms. Packer in an effort to settle the case and discuss settlement options, however Ms. Packer would not budge. Ms. Packer made clear that she would not accept any settlement if it did not allow her to continue working at the Commission, or as a detailee to some other office or agency. However, from the time this case began, OHEC was consistently told that the Commission would not accept a settlement that involved Ms. Packer continuing to be employed by the Commission a position we strongly agreed with given our assessment that Ms. Packer was manufacturing claims and would likely continue to do so. In light of Ms. Packer s representation that she would fall down and die before voluntarily leaving the Commission as part of a settlement, our options for resolving the case were extremely limited. We endeavored nonetheless throughout all of the mediations to explore other settlement options with the Commission. For instance, early on, we asked the Chiefs of Staff for the Personnel and Administration Committee members to determine if there were any positions Ms. Packer might be transferred to in the Members personnel offices or with committees on which they serve. We were told that none were available. We inquired about that option again after Magistrate Judge Robinson asked us to do so last summer. We were once again told by the representatives of the Personnel and Administration Committee members that no such positions were available. Accordingly, we looked for other avenues to address Ms. Packer s status with the Commission. For instance, we consistently advised the Commission (during both Rep. Smith and Sen. Cardin s chairmanships) that it needed to hold Ms. Packer to the same performance standards as other employees and to document her lack of performance. However, our advice and counseling in this regard was largely disregarded and Ms. Packer was against our strong advice permitted to remain employed with the Commission for many years without any form of discipline or counseling even though, as we were often told, she was essentially doing no work. We advised the Commission management that, if it documented Ms. Packer s lack of performance and she were to subsequently bring a retaliation claim, that claim could be successfully defended. As you will also recall, after Ms. Packer physically threatened three OHEC attorneys during a meeting last year, and after she made what several witnesses concluded were threats of workplace violence in a public document, the Commission s General Counsel and several other individuals expressed concern about their safety. We advised Senator Cardin to refer these issues to the appropriate authorities to review Ms. Packer s top secret security clearance. Senator Cardin declined to do so. Thereafter, we recommended to the outgoing Staff Director, Fred Turner, that he ask all employees to prepare a memorandum before his departure describing their accomplishments and objectives. Our goal in doing so was to encourage the Commission to develop a baseline of performance from which the new Chief of

Staff could impartially assess the performance of all employees, including Ms. Packer. That document could also be used as the basis for appropriate disciplinary action against Ms. Packer, or any employee who failed to perform. During the pendency of the litigation we continued to actively engage in discovery in this case. In March 2014 we had a lengthy hearing before Magistrate Judge Facciola to address a number of extant discovery issues, including Ms. Packer s failure to answer interrogatories, produce documents, provide relevant releases, and to address other matters. It was obvious at this hearing that Judge Facciola understood that Ms. Packer was stonewalling, being non-responsive and uncooperative, and he made that clear to Ms. Packer. It was shortly thereafter, apparently realizing that she was going to finally have to actually engage in discovery, provide legitimate support for her allegations, and answer significant and relevant questions about her employment, medical, and litigation histories, that Ms. Packer initiated contact with SCCE and indicated her interest in settling the case. Most importantly, we understand that Ms. Packer apparently indicated for the first time that she was prepared to leave the Commission as part of the settlement. It is no wonder that the case settled shortly thereafter. Given Ms. Packer s history of accusations against OHEC s attorneys (including, but not limited to, equating us with Nazis, accusing us of being a gang of criminals, and claiming that OHEC had an undercover office present in the room during our discovery meetings with her), it is not surprising that Ms. Packer did not reach out to OHEC to discuss settlement of her case. However, the green light authorizing SCCE s involvement at the final stage of the litigation created a strange dynamic such that we still have no idea what is in the settlement agreement, or what obligations it imposes on the parties and their agents. Presumably, the Senate lawyers who negotiated the settlement have advised the Commission regarding any obligations the Commission and its agents may have going forward. Moreover, OHEC has not been advised whether the agreement includes a release of claims against Representative Hastings and/or Fred Turner. This has made it difficult for us to respond to legitimate inquiries from counsel for Representative Hastings and Fred Turner counsel who were generally quite helpful to us in meeting the Commission s discovery obligations. In addition, it is our understanding that no information has been provided to Rep. Hastings or Mr. Turner regarding responses to any potential press inquiries they may receive regarding this matter under the settlement agreement. Further, given that Representative Hastings is a member of the Commission s management (and as a Member of the House will continue to be one of our clients), it is particularly awkward for OHEC to be in a position where we are unable to respond to perfectly reasonable questions by a Member of the House and his counsel regarding the settlement. We recommend that the Commission plan for and address these types of concerns in the future should there be similar litigation. Amend the CAA As mentioned, we recommend that the Commission work to amend the CAA to make clear that the Commission is a covered employer under the statute. Furthermore, we recommend that the statute be amended (or a non-political and non-partisan process be adopted) to provide explicit direction regarding who represents the Commission in Office of Compliance proceedings and federal court litigation under the CAA. Finally, we believe it advisable for the Commission to adopt some type of resolution or regulation that governs the process for handling litigation and litigation decisions going forward to avoid the situation which manifested itself in this case where counsel s legal advice and taxpayer interests are subjugated to fluctuating political and/or partisan considerations.

We are happy to discuss any of these points with you at your convenience. ***************************************************** Gloria Lett Counsel Office of House Employment Counsel U.S. House of Representatives 1036 Longworth House Office Building Washington, DC 20515 Telephone: (202) 225-7075 Facsimile: (202) 225-7033 ***************************************************** THE INFORMATION CONTAINED IN THIS MESSAGE MAY BE LEGALLY PRIVILEGED AND CONFIDENTIAL. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this correspondence or any accompanying attachment is strictly prohibited. If you have received this correspondence in error, please immediately notify the sender by telephone or e-mail. Thank you.