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Gerlich v. United States Dep't of Justice

September 16, 2009


The opinion of the court was delivered by: John D. Bates United States District Judge


Plaintiffs are eight unsuccessful applicants for employment with the United States Department of Justice ("DOJ") who assert claims arising from the well-publicized misconduct of senior DOJ officials who allegedly discriminated against certain applicants based upon their political affiliations. Plaintiffs assert claims against defendant DOJ for monetary and equitable relief under the Privacy Act, the Civil Service Reform Act ("CSRA"), the Federal Records Act ("FRA") and the United States Constitution. Plaintiffs have also sued former DOJ officials Alberto Gonzales, Monica Goodling, Michael Elston, and Esther McDonald, and current DOJ official Louis DeFalaise (collectively, the "individual defendants"), personally for money damages based on claims brought directly under the First and Fifth Amendments to the Constitution. Now pending before the Court are motions to dismiss filed by DOJ and each of the individual defendants pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).*fn1

From the inception of this case, plaintiffs have emphasized, repeatedly, the extraordinary circumstances that underlie it. To be certain, the Court agrees that misconduct by senior government officials -- 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. Indeed, for the reasons explained below, the Court will not reach the merits of plaintiffs' constitutional claims against the individual defendants because it concludes that, under controlling Supreme Court and D.C. Circuit precedent, the CSRA is a comprehensive, remedial statutory scheme that precludes the recognition of an implied damages remedy against the individual defendants. The Court also concludes that plaintiffs' claims for equitable relief suffer from fatal pleading deficiencies. Likewise, most of plaintiffs' Privacy Act claims are insufficiently pled and must be dismissed. Plaintiffs James Saul, Matthew Faiella and Daniel Herber have, however, satisfied their pleading burden with respect to DOJ's alleged maintenance of First Amendment-related records (Count I) and irrelevant records (Count II) in violation of the Privacy Act, and those plaintiffs will be allowed to proceed with those claims. However, the other plaintiffs lack standing to pursue those claims and they will be dismissed from the case.


I. Allegations of Misconduct in the Honors Program and Summer Law Intern Program Hiring Process

The Attorney General's Honors Program ("Honors Program") is the exclusive means by which DOJ hires recent law school graduates and judicial law clerks who have no prior legal experience. First OIG/OPR Report at 3. Historically, the Honors Program has been very competitive and the number of applications received in a typical year far surpasses the number of positions that are available. Id. Several of DOJ's component divisions participate in the Honors Program hiring process, which is overseen by DOJ's Office of Attorney Recruitment and Management ("OARM"). Id. Although OARM processes all applications, each component hires its own Honors Program attorneys. Id. A similar hiring process also exists for paid summer interns in DOJ's Summer Law Intern Program ("SLIP"). Id. at 3-4.

In 2002, the Honors Program and SLIP hiring process was revamped in response to recommendations from a group of senior officials within the Attorney General's office ("Working Group"). See id. at 4. These changes, which remained in effect until 2006, were designed to stimulate increased applications, to maintain the prestige of the Honors Program and to help DOJ compete with law firms for the best candidates. See id. at 4-5. In order to allow more DOJ attorneys to participate, particularly political appointees in leadership positions, the hiring process became more centralized in Washington, D.C. See id. at 4. To that end, a Screening Committee, composed of several members of the Working Group, was also created to review and approve the candidates who were selected for interviews by the components. Id. at 5. The composition of the Screening Committee changed from year to year, and the components were generally unaware who served on the Committee or what criteria it applied in reviewing candidates. Id. Moreover, the Screening Committee gave no reasons or explanations for its decision to deselect a candidate from the list of those to be interviewed. Id.

Through 2005, OARM received very few complaints about the new hiring process or the decisions of the Screening Committee. Id. However, in 2006 OARM received a number of complaints regarding the abnormal length of time taken for Screening Committee review and the unusually large number of seemingly qualified Honors Program and SLIP candidates that were deselected for interviews. Id. As a result of the complaints, DOJ changed the hiring process once again in 2007, transferring control of the Screening Committee from political appointees to career employees. Id. Then, in April 2007, an anonymous letter was sent to the Chairmen of the House and Senate Judiciary Committees from "A Group of Concerned Department of Justice Employees." Id. at 66. That letter claimed that a number of highly qualified candidates, who had been selected for interviews by career employees within the individual DOJ components, had been subsequently rejected by the Screening Committee on the basis of their Democratic Party or liberal affiliations. Id. at 1 n.1. The OIG and the OPR, which were already investigating issues related to the removal of certain United States Attorneys, decided to expand the scope of their investigation to include the allegations regarding Honors Program and SLIP hiring. Id. at 1.

On June 24, 2008, the OIG and the OPR issued a joint report summarizing their findings entitled "An Investigation of Allegations of Politicized Hiring in the Department of Justice Honors Program and Summer Law Intern Program." Sec. Am. Compl. ¶ 59. That report serves as the basis for most of the allegations in plaintiffs' second amended complaint. Central to those allegations is the report's finding that two members of the 2006 Screening Committee, Esther McDonald and Michael Elston, took political and ideological affiliations into account in deselecting candidates for Honors Program and SLIP interviews. See id. ¶¶ 184-92, 193-99; First OIG/OPR Report at 99. Plaintiffs also allege, based on the report, that McDonald conducted Internet searches regarding candidates' political and ideological affiliations, printed out such information when it revealed liberal associations and then attached the printouts and her own handwritten comments to the candidates' applications in support of her recommendations to deselect them. See Sec. Am. Compl. ¶ 62, 196; First OIG/OPR Report at 71-73, 76-77, 82. Because these documents existed only in hard copy, occupied substantial storage space and contained personal information about the applicants, they were placed in a "burn box" and destroyed prior to the initiation of the OIG/OPR investigation. See First OIG/OPR Report at 68-69.

As for the other individual defendants, plaintiffs focus much of their attention on Monica Goodling, then DOJ's White House Liaison, who they allege was the "principal wielder of authority among the four subcabinet-level individual defendants" and the de facto architect of this unlawful scheme to weed out "ideologically undesirable" candidates. See Sec. Am. Compl. ¶¶ 88, 95, 175-76, 178. Plaintiffs further allege that based upon Goodling's general oversight role and her admitted use of Internet "search strings" to screen liberal applicants for other career positions within DOJ, she also assisted McDonald with her Internet research regarding Honors Program and SLIP applicants. See id. ¶¶ 179-80. With regard to former Attorney General Alberto Gonzales, plaintiffs primarily allege that he was complicit in this scheme "[t]hrough his unprecedented, irresponsible abnegation of responsibility," by which he effectively authorized Goodling to orchestrate the unlawful conduct at issue. See id. ¶ 214. Likewise, plaintiffs also allege that Louis DeFalaise, Director of OARM, enabled the unlawful conduct because he held a "key oversight role" with regard to career employee hiring matters, he knew of complaints from some components in 2006 that the Honors Program and SLIP hiring process "had been politicized," and yet he"cast[ ] a blind eye" to the problem. See id. ¶¶ 202, 205, 207.

II. Procedural History

Plaintiff Sean Gerlich originated this action on June 30, 2008, less than a week after the first OIG/OPR report was released. The first amended complaint, filed by five of the current plaintiffs (Gerlich, Coleman, Gooch, Meier, Saul) and one who is no longer part of this action (Zajac), followed on August 15, 2008. Before all defendants could respond to the amended complaint, plaintiffs moved for leave to amend their complaint for a second time. This Court granted plaintiffs' motion and the second amended complaint was filed on November 12, 2008. The second amended complaint, which added three plaintiffs (Faiella, Herber, Spiegel) and defendant DeFalaise, generally alleges that plaintiffs -- all unsuccessful applicants for employment with DOJ -- have been injured by the "politicized" hiring process that plagued the Honors Program and SLIP during 2002 and 2006.*fn3 Specifically, the second amended complaint asserts fifteen separate counts arising under the Privacy Act (Counts I-VII), the U.S. Constitution (Counts VIII-XIII), the CSRA (Count XIV), and the FRA (Count XV).*fn4 Defendants have moved to dismiss the second amended complaint in its entirety, pursuant to Rules 12(b)(1) and 12(b)(6). Plaintiffs have opposed the motions. Following its receipt of defendants' reply briefs,*fn5 the Court held a motions hearing on August 18, 2009 and the motions are now ripe for resolution.


"[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Leatherman v. Tarrant Cty. Narcotics and Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979). Therefore, the factual allegations must be presumed true, and plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer, 416 U.S. at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, the Court need not accept as true "a legal conclusion couched as a factual allegation," nor inferences that are unsupported by the facts set out in the complaint. Trudeau v. Federal Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

Under Rule 12(b)(1), the party seeking to invoke the jurisdiction of a federal court --plaintiffs here -- bears the burden of establishing that the court has jurisdiction. See US Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103-04 (1998)); see also Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) ("[A] Rule 12(b)(1) motion imposes on the court an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority."); Pitney Bowes, Inc. v. U.S. Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). Although a court must accept as true all the factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), Leatherman, 507 U.S. at 164, "'plaintiff[s'] factual allegations in the complaint... will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge, 185 F. Supp. 2d at 13-14 (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1990)). At the stage of litigation when dismissal is sought, a plaintiff's complaint must be construed liberally, and the plaintiff should receive the benefit of all favorable inferences that can be drawn from the alleged facts. See St. Francis Xavier Parochial Sch., 117 F.3d at 624. Additionally, a court may consider material other than the allegations of the complaint in determining whether it has jurisdiction to hear the case, as long as it still accepts the factual allegations in the complaint as true. See Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005); St. Francis Xavier Parochial Sch., 117 F.3d at 624-25 n.3; Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir.1992).

In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court is mindful that all that the Federal Rules of Civil Procedure require of a complaint is that it contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555-56; see also Papasan, 478 U.S. at 286. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570); Atherton v. District of Columbia Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009). A complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the ...

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