Federal Court Throws Out Lawsuit Against Justice Department in Bush Administration Hiring Scandals

Although the Justice Department's Office of the Inspector General and Office of Professional Responsibility concluded in a report entitled "An Investigation of Allegations of Politicized Hiring in the Department of Justice Honors Program and Summer Law Intern Program" (June 24, 2008) that the Justice Department had improperly excluded from consideration applicants whose past associations suggested that they might not be "politically correct" as that term might be used within the Justice Department during the Bush Administration, a federal court has ruled that individuals who applied to those programs during the time in question (2006) and were not given interviews or hired could not pursue claims for monetary damages under the Privacy Act of 1974.  In his December 15 ruling in Gerlich v. U.S. Department of Justice, C.A. No. 08-1134, District Judge John D. Bates (D.D.C.), found that the three remaining individual plaintiffs could not establish that the Privacy Act was violated with respect to their individual applications, inasmuch as the documents that would constitute proof (their applications and any memos or notes attached to them by Screening Committee members) were discarded by the Justice Department in the normal course of business before the lawsuit was filed in 2008. 

The plaintiffs asserted a spoliation of evidence claim as well as a damage claim under the Privacy Act.  Based on the Report and testimony at subsequent congressional hearings, it developed that a Screening Committee of political appointees within the Justice Department was reviewing all applications that had been initially selected for interview by the various divisions and component units within the Department, and this screening appears to have been mainly a political test to avoid hiring any liberals.  The members of the committee went beyond the applications to conduct internet research and to note any affiliations of the applicants with liberal organizations, which served as a basis of "de-selecting" the candidate for interviews.  This went on until divisions and component units raised concerns about the number of their recommended candidates who were being "de-selected" by the Screening Committee, as a result of which membership of the Screening Committee was change from political appointees to career staff.  Then an anonymous letter from within the Department arrived at the House and Senate Judiciary Committee, complaining about the politicization of the Honors Program, which had traditionally focused solely on the professional qualifications of applicants, not their political views, hearings ensued, and some resignations from DOJ followed.

A group of individuals who had applied to the Honors Program then brought suit against the members of the Screening Committee and the Department of Justice.  Judge Bates previously rejected attempts to make the case a class action, dismissed claims against individuals (qualified immunity), and narrowed down the plaintiffs to three of whom he concluded had standing to seek relief.  But ultimately, he found, in the absence of documentation concerning how their individual applications were handled, he could not find a basis for allowing them to go to trial on their Privacy Act claims. 

The Privacy Act prohibits government agencies from maintaining records describing how an individual exercises First Amendment rights.  In the absence of the documents in question, it appears that such records, if they existed with respect to the individual plaintiffs, no longer exist, and in the absence of such records, with the individual defendants claiming to have no memory of the individual applications filed by the plaintiffs, Judge Bate found that the plaintiffs could not prove a violation of the Act.  As to spoliation, evidence that the applications materials were destroyed before the scandal went public at a time when no lawsuit was pending undermined any claim of deliberate destruction of evidence to avoid liability.  Sort of a Catch-22 there.

My interest in the case was piqued because one of the remaining plaintiffs, Matt Faiella, is an acquaintance who worked for several years as a staff attorney with the NY Civil Liberties Union (the kind of employment that was seemingly a disqualification for the Bush Administration-era Honors Program at DOJ), doing LGBT rights work, and now works for the US Department of Education's Office for Civil Rights.

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