The district court has ruled that a handful of unsuccessful applicants for the Department of Justice Honors Program and Summer Law Intern Program who claim their applications were excluded by agency political appointees during the Bush years for failure to pass a partisan litmus test may maintain a Privacy Act lawsuit against the department.
However, the court tossed tort claims filed against individual agency officials in their personal capacity out. (Gerlich v. U. S. Department of Justice, D.D.C. Civil Action No. 08-1134 (JDB), 9/16/09)
As explained in the court’s decision, the honors program is the highly competitive, "exclusive" way that DOJ hires recent law school graduates and judicial law clerks. Hiring for the paid summer law interns is handled with a similar hiring process. (Opinion p. 3)
In 2002, the process was revamped to be more centralized in Washington and to allow more agency political appointees to play a role. The so-called "Screening Committee" reviewed and approved the list of candidates selected for interviews by various agency component offices. The agency did not publicize who was on the Screening Committee and when names were deleted from the interview list, no reasons or explanations were given. (p. 4)
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In 2006, numerous complaints made their way to the agency and the Congress alleging that the Screening Committee was taking too long for its review and that the Committee was mysteriously deleting a large number of seemingly well-qualified candidates from the interview list.
Then complaints surfaced that the Screening Committee was applying a partisan litmus test to the interview list and deleting individuals selected by career employees for interview who had Democratic Party ties or liberal leanings. (p. 4)
The agency Inspector General investigated and issued a report in June 2008. The report serves as the basis of the plaintiffs’ suit. It identified two members of the 2006 Screening Committee—Esther McDonald and Michael Elston—who "took political and ideological affiliations into account in deselecting candidates." (p. 5) Plaintiffs argue that McDonald—allegedly aided by Monica Goodling the then DOJ White House Liaison and abetted by Attorney General Gonzalez—conducted Internet searches on the various candidates’ politics and ideology, printed out the results and attached them to her handwritten comments and recommendations to deselect them for interviews. (p. 5)
These informal political affiliation files are what have provided Plaintiffs a foot inside the courthouse door. The question is whether this accumulation and use of such information—sorted by individual name—constituted a violation of the Privacy Act. The court’s recent ruling simply gives the Plaintiffs a chance to try to prove the Privacy Act was violated.
But the court did side with the government and threw out the Plaintiffs argument that this behavior added up to a "constitutional tort." Citing a long line of Supreme Court cases, the district court refuses to permit the constitutional tort claim to go forward. (p. 30)
It is pretty difficult to fashion a constitutional tort claim against federal officials in their personal capacity. It will only work in those exceptional cases where there is simply no other remedy and there is pretty egregious misconduct on the part of federal officials that clearly adds up to violating an individual’s constitutional rights. On the other hand, the Privacy Act affords a lot more room to press a claim. Stay tuned for how this particular case plays out.
Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.