Docked for Duty?

They also contended that he was not doing enough to enforce border security. But one of McNulty's principal deputies, William Moschella, appeared to emphasize specifically the point about Iglesias being away from the office too much during his later testimony before the House Judiciary Committee. When asked by Democratic Rep. Linda Sanchez about the department's reasons for firing Iglesias, Moscella replied that "Iglesias had delegated to his first assistant the overall running of the office. And, quite frankly, U.S. attorneys are hired to run the office."

Of the U.S. attorneys fired, Iglesias's case has arguably created the biggest problem for the Justice Department. As Gonzales's former chief of staff, D. Kyle Sampson, testified last week, Iglesias was not on the original list of U.S. attorneys to be fired last fall—and was only added in November after White House aide Karl Rove complained to Gonzales that Iglesias was not doing enough to prosecute voter-fraud cases—a top GOP campaign priority. Iglesias has testified that he got two phone calls last October from Rep. Heather Wilson and Senator Domenici, both New Mexico Republicans, pressing him to bring indictments in a local corruption case that implicated Democrats—contacts that Iglesias has alleged were improper. Those contacts prompted Iglesias to brand his firing "a political hit."

Iglesias suspects that the Justice complaints about his absences were cooked up as an ex post facto rationale to justify a dismissal that was really made for political reasons. That's why, in filing his complaint with OSC, he is also alleging that his firing may have been a violation of the Hatch Act, which prohibits federal officials from using their offices to interfere with an election.

But it is his claim under USERRA that may raise the most interesting legal issues—especially in light of the Bush administration's strong stand on enforcement of the law. The OSC's Bloch, a Bush appointee whose lawyers interviewed Iglesias by phone last week, has made "aggressive" USERRA enforcement a top priority. The agency has handled more than 300 complaints since 2004 and routinely seeks internal documents from other agencies—under threats of subpoena—to complete its investigations. In about a half dozen cases, the OSC has actually brought suit against federal agencies for USERRA violations before the Merit Systems Protection Board. (OSC lawyers say they have been able to resolve many other cases through negotiations with the agencies.) The OSC has also taken an expansive view of the reach of USERRA, contending that high-level political appointees are protected by the act, not just midlevel civil servants. "Our view is that USERRA is required to be construed liberally," said one OSC lawyer, who asked not to be publicly identified talking about internal matters. "It's very broad. There is no exclusion for political appointees."

Wright, who co-wrote the USERRA law when he worked at the Labor Department in 1994, agreed that the reach of USERRA is unusually broad. But he said it's still an "open question" about whether the law could be used to protect the jobs of U.S. attorneys—Senate-confirmed appointees who serve at the pleasure of the president.

If the question is whether U.S. attorneys, like all other citizens, have rights under USERRA, "the answer is clearly yes," said Wright. "The harder question is whether there is any remedy."