A federal judge in Washington today dismissed in large part a suit against former Attorney General Alberto Gonzales and other ex-Justice Department officials that alleged they improperly vetted candidates for the department's summer intern and honors programs.
Judge John Bates of the U.S. District Court for the District of Columbia said only three of the eight plaintiffs—all of them unsuccessful applicants for employment with the Justice Department—have standing to pursue claims against the department. The five dismissed plaintiffs never reached the step in the hiring process where the violations allegedly occurred, Bates said. Click here for the opinion.
The judge dismissed each of the individual defendants, including Gonzales, Monica Goodling, Michael Elston and Esther McDonald. Gonzales’ lawyers at Washington’s Schertler & Onorato, including Vincent Cohen Jr., were not immediately reached for comment this evening. Cohen argued for Gonzales a motions hearing in August.
Lead plaintiff Sean Gerlich had sued in June 2008, less than a week after the first joint report from the department’s Office of Professional Responsibility and its Office of the Inspector General documented the politicization of hiring for the summer intern and honors programs. That report, which provides the foundation for the suit, said that McDonald and Elston took political and ideological affiliations into account in reviewing candidates for the programs.
“To be certain, the Court agrees that misconduct by senior government official—especially when it implicates the First Amendment--is gravely serious and must not be condoned. But defendants have raised several threshold issues that potentially prevent this Court from considering the merits of plaintiffs' case,” wrote Bates.
The judge ruled that the plaintiffs’ suit for money damages against the individual defendants is barred by the Civil Service Reform Act and that the plaintiffs could have petitioned the Office of Special Counsel to review whether certain allegations against the Justice Department have merit. Bates wrote that “these remedies plainly are available” to unsuccessful applicants for career positions.
“Although plaintiffs do not seriously contest the applicability of the CSRA, they take issue with its preclusive effect largely because they are dissatisfied with the remedies that it affords them,” Bates wrote in a 30-page opinion.
Three plaintiffs—James Saul, Matthew Faiella and Daniel Herber—will be allowed to continue Privacy Act claims against the Justice Department. The complaint alleges the department, through its employees, improperly collected information from the Internet that was then used to vet applicants.
Bates noted in the opinion that an agency that maintains a system of records is barred from maintaining a record of an individual's First Amendment activity—even if the record is not later put into into agency files. The records at issue in the suit—Internet printouts regarding the applicants' political and ideological affiliations—were destroyed in 2007.