Tuesday, July 1, 2008

First Lawsuit Related to DOJ Honors Program Politicization

DojJeff blogged last week about the report by the DOJ's Inspector General, which found that the DOJ had illegally used political or ideological factors in hiring new attorneys into its Honors Program. The BLT: The Blog of the Legal Times reports on what appears to be the first lawsuit brought in the fallout.

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 McGuire Woods.

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.

The suit alleges that Gerlich was not hired because of liberal affiliations that officials discovered by doing internet searches of his name. He had received good reviews as an intern for one of the DOJ chiefs. Stay tuned for more.



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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.


Joe Carson, PE
Knoxville, TN

Posted by: jpcarson | Jul 3, 2008 7:51:11 AM

The link didn't work in the post. I think this it, but please let me know if I'm wrong: http://www.oscwatch.org/blog/2008/01/30/chief-investigator-says-justice-department-is-blocking-probe-into-fired-prosecutors/

Posted by: Marcia | Jul 3, 2008 9:41:13 AM

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