Ex-Honors Program Applicant Sues DOJ

A former candidate for the Justice Department's honors program is suing for $100,000 in damages, alleging Justice officials violated his rights and those of others when they brought political bias into vetting honors-program applications.

The class action by Sean Gerlich — filed yesterday in U.S. District Court for the District of Columbia — is the first suit resulting from an internal Justice report issued last week that says two former Justice officials illegally screened applicants to the honors and summer intern programs.

The two officials were Esther Slater McDonald, then counsel to the associate attorney general and now an associate at Seyfarth Shaw, and Michael Elston, then chief of staff to Deputy Attorney General Paul McNulty and now a partner at McGuireWoods.

Gerlich's suit says the department politicized the selection process, mishandled the applications and failed to maintain the records, all in violation of the Privacy Act, the Civil Service Reform Act and the Federal Records Act. In addition, the suit claims violations of the First and 14th Amendments.

Gerlich says he was rejected because of his liberal affiliations, which officials dug up through Internet searches.

The DOJ report, issued June 24, found that hundreds of applicants were turned down in 2002 and 2006, after officials under Attorney General John Ashcroft put political appointees in charge of the process. Data analysis by the Office of Inspector General and Office of Professional Responsibility, for example, showed that those with liberal leanings were more than three times more likely to be rejected than their conservative counterparts in 2006.

Daniel Metcalfe, Gerlich’s attorney and a Washington College of Law professor at American University, says his client was upset at being turned down in 2006 because he had received good marks during his previous stint as a Justice summer intern. In fact, Metcalfe says, his client was a law clerk to an unidentified chief in one of the department’s 40 components.

“This is a guy who had every reason to believe that he was going to work for the government like he did the previous summer, that he would start his career there. And then this happened,” says Metcalfe, who worked at Justice for more than 35 years and retired in 2007 as head of the department’s Office of Information and Privacy. “He was shocked. He was angry. ... This is what he wanted to do."

Metcalfe says Gerlich was “disgracefully deprived of the opportunity to do what he had planned to do, [which was] to return to the Justice Department as an attorney and serve his country.”

Finding no job upon graduation from the University of Georgia law school, Gerlich moved to Belgium last year. He now works as an associate for a law firm in Brussels.

Comments

[jpcarson]

Last week's widely publicized report of widespread prohibited personnel practices (PPP's) in politicized hiring practices in Department of Justice (DOJ) in 2002 and 2006 was silent to some key points including:

1) What steps will be taken to restore the scores of victims - the highly qualified applicants for career positions in Justice Dept. who were "de-selected" for unlawful reasons?

2) Why did the agency which is supposed to be primary bulwark for protecting federal employees and applicants for federal employment from PPP's - the US Office of Special Counsel (OSC) - fail so utterly?

3) Why were the "special studies" conducted by the Merit Systems Protection Board (MSPB), intended to determine if federal employees and applicants for employment are adequately protected from PPP's, fail to identify the widespread PPP's in DOJ?

I contend that OSC which should be, relatively speaking, the most essential anti-corruption agency in US Government, is likely a most corrupt and corrupting one in our government. I contend OSC's corruption and widespread corrupting influence stems primarily from its now 30-year-old bizarre, self-nullifying, misinterpretation of what is now 5 U.S.C. §1214(e) - that its requirements to report OSC's determinations of violations of "any" non-criminal laws, rules, and regulations - does not apply to the laws, rules, and regulations under OSC's investigatory and enforcement jurisdiction.

As a result of its bizarre, self-nullifying 30-year old misinterpretation of this key law, OSC has no objective nondiscretionary duty to the federal employees who seek its protection from PPP's. its key non-discretionary duty to those who seek its protection.

MSPB has played an essential role in OSC's corruption and corrupting influence by its 30-year-old misinterpretation of 5 USC 1204(a)(3) by which its "special studies" - intended to determine if federal employees and applicants for employment, in every federal agency, are being adequately protected from PPP's - do not have to consider that topic.

Neither MSPB nor OSC have inspector generals, so there is no internal check on their misinterpretation of these key laws. However, the DOJ Office of Legal Counsel ((OLC)is able to review these interpretations, if directed by the proper authority in DOJ to do so.

My recent, extensively documented, letter to Attorney General Mukasey, requesting him to direct OLC to conduct such a review, is posted online at:

. If enough stakeholders to the federal civil service and its merit system principles express support for this request, I am confident that these 30 year-old misinterpretations of law, which has resulted in immense, possibly irrecoverable, harm to our Country will be exposed and corrected.

Respectfully,

Joe Carson, PE
Knoxville, TN

[Smarter than you]

The DOJ Attorney Honors Program, like a lot of new attorney recruiting, takes place long before graduation. DOJ finishes hiring for the "class of 20XX" by thanksgiving of the year before (20XX-1). That is, he would interview and be selected (or deselected) in 2006 for a job that started in the fall of 2007 (after he graduated and took the bar exam).

He didn't graduate until 2007, so not sure how he could have applied for the 2006 DOJ Honors Program class.