Calling it a "dark chapter" in Justice Department history, a government lawyer today urged a federal judge in Washington to throw out a suit that alleges the department improperly used politics in deciding whether to hire summer law interns and prospective honors program lawyers.
The eight named plaintiffs, who purportedly represent a class of hundreds of similarly situated plaintiffs, maintain Justice based hiring decisions on the candidates’ liberal political and professional affiliations. Justice officials found and printed information from web sites about the candidates. Hundreds of applicants were turned down in 2002 and 2006 by political appointees. A motion for class certification is pending.
The defendants, including former Attorney General Alberto Gonzales, want the suit tossed. Judge John Bates of the U.S. District Court for the District of Columbia heard argument today for more than two hours. He did not rule from the bench.
The suit, filed last year in federal district court in Washington, incorporates the findings of a Justice Department inspector general report in June 2008 that concluded two former Justice officials, Esther Slater McDonald and Michael Elston, illegally screened applicants for the summer intern and honors programs. Lead plaintiff Sean Gerlich, represented by Daniel Metcalfe, a former DOJ career official who is currently a professor at American University Washington College of Law, is suing for more than $100,000 in damages for alleged violations of the Privacy Act.
McDonald, an associate in the Washington office of Seyfarth Shaw, is former counsel to the associate attorney general, and Elston was chief of staff to Deputy Attorney General Paul McNulty. In court today, Schertler & Onorato partner Vincent Cohen Jr. represented Gonzales, who did not attend the hearing. Alston & Bird partner Robert Driscoll argued for Elston. Defendant Louis Defalaise, director of the Office of Attorney Recruitment and Management since 2002 is represented by Drinker, Biddle & Reath partner Charles Leeper. King & Spalding partner John Bray is among several lawyers who have entered an appearance for McDonald.
Justice Department lawyer John Tyler, assistant branch director of the Civil Division's Federal Programs Branch, said the inspector general report marks a “dark chapter in the department’s history. It’s behind us.”
Tyler argued today at a motions hearing that federal district court is not the proper venue for the complaint. The mere collection of information from Internet sites did not cause any of the applicants harm, Tyler argued. The department, he said, is “duty bound” to find out information about job candidates.
Tyler, however, distinguished between the collection and subsequent use of the information Justice officials found on web sites. The use of the information—Tyler called it “very unfortunate—falls into prohibited employment activity. The plaintiffs should have taken complaints to the Office of Special Counsel. “They have available remedies,” Tyler said. “The claims in this case—there’s just no fit.”
A good chunk of the argument today centered on the information that Justice officials downloaded from web sites and Justice notes during research on candidates for the summer intern and honors programs.
Notes that Justice officials recorded during the selection process were “innocent stuff” that were properly destroyed, Tyler said. The notes were not material that should have been placed into the Justice Department’s records system. Metcalfe said under the Privacy Act a person is entitled to know what federal records have been created and maintained.
Cohen of Schertler & Onorato, arguing for Gonzales, said the plaintiffs failed to explore remedy against the government through the Civil Service Reform Act and as such are not entitled to damages through what’s called a “Bivens claim,” an allegation that a federal law enforcement agent violated constitutional rights.
A Bivens claim is not available because the plaintiffs have not exhausted their administrative remedies, Cohen said in court today. Cohen said there’s a “good chance” the plaintiffs would not be in court had they pursued other remedies. Drinker Biddle’s Leeper said the former Justice lawyers who are defendants are entitled to qualified immunity.
In court, Metcalfe called the hiring practice of the Justice Department a “secret enterprise” that remains “shrouded in silence.”
Choosing the Office of Special Counsel path was an “utterly unrealistic” option, he said. The plaintiffs, he said, cannot be made “whole” since time has passed. Metcalfe repeated the phrase “crazy talk” several times during his hour of the argument in challenging the position of the defendants. He said the Civil Service Reform Act did not contemplate the unique situation that this case presents.
Bates did not give a clear indication how he would rule in the case despite the number of questions for the lawyers for the defendants and for Metcalfe.
Bates interrupted Metcalfe at one point, saying that as a judge it is not his job to “expose.” Bates said he is not a member of Congress. He said he is not a member of the press. “You’re trying to get me to allow a Bivens claim because of the smell of this case,” Bates said to Metcalfe. (Earlier in the hearing, Bates said there is general agreement that the political vetting was "deplorable.)
If Bates allows a portion of the case to move forward, it is expected that Metcalfe would seek depositions of all or some of the defendants. When Bates asked Metcalfe about discovery, Metcalfe said he would not commit in announcing today that he would seek a deposition of each named defendant. Bates said he’d publish an opinion in a month or so.