By EILEEN SULLIVAN
A judge ruled the Secret Service “made a mockery” of the law to thwart black agents accusing it of bias and penalized the agency by barring it from introducing rebuttal evidence during the trial of their lawsuit.
The severe and rarely invoked penalty – just short of awarding victory to the agents – is the latest twist in an eight-year-old case that alleges the Secret Service denied minority agents promotion because of their race.
In a scalding 51-page opinion issued late Wednesday, U.S. Magistrate Judge Deborah A. Robinson concluded the Secret Service refused to provide documents requested by the plaintiffs during the discovery phase of the trial, ignored judicial rules and defied court orders so extensively that it damaged the agents’ ability to present their case.
Robinson concluded that “no reasonable search for the documents responsive to plaintiff’s requests … was ever conducted” despite federal rules requiring it, 9 separate court orders by Robinson demanding it and three previous penalties imposed by Robinson. The agency’s “substantial and prejudicial” stubbornness “virtually mandates a finding that defendant’s noncompliance … was willful,” Robinson wrote.
The U.S. Attorney’s office plans to appeal Robinson’s decision, Secret Service spokesman Ed Donovan said, adding, “It’s far from over.”
The sanction does not mean the agency has been found guilty of discrimination, though government lawyers argued it was tantamount to that because it does prevent the agency from presenting evidence that particular promotion decisions were made for nondiscriminatory reasons and from presenting statistical evidence to rebut claims that bias affected an entire class of employees.
Lawyers for agents must still present evidence of discrimination at trial.
The lawsuit was filed in 2000. The plaintiffs say white colleagues and supervisors regularly use a racial epithet to refer to criminal suspects and black leaders of other countries. The lawsuit claims the Secret Service has always had a discriminatory culture – a claim the agency denies.
The agency not only has delayed providing evidence but also destroyed some evidence, said Melissa Henke, an attorney with Hogan & Hartson who has represented the agents without charge.
Donovan said the Secret Service paid an outside auditor more than $2 million to search 20 million e-mails and other electronic documents dating back 16 years, has turned over 22 million documents to the plaintiffs, reached out to nearly 300 former employees to see if they have documents and given 90 depositions. He added that agency statistics show black agents get promoted faster than other agents.
The Secret Service investigates counterfeiting cases and protects presidents, vice presidents, their family members and other dignitaries. The agency, previously part of the Treasury Department, became part of the Homeland Security Department in 2002.
The lawyers representing the black Secret Service agents issued this press release on the sanctions.
Court Sanctions U.S. Secret Service for “Making a Mockery”of Judicial Process
Ruling in Moore v. Chertoff Racial Discrimination Lawsuit Cites Agency’s Flouting of Discovery Obligations and Failure to Comply with the Law
(Washington, D.C.) Last night, United States Magistrate Judge Deborah Robinson imposed a severe sanction against the United States Secret Service in Moore v. Chertoff for the Agency’s willful noncompliance with discovery obligations and court orders, calling the Agency’s “recalcitrance” in producing evidence “the most prominent feature of the record in this action.” Magistrate Judge Robinson announced that the Secret Service has “made a mockery” of federal discovery rules, court orders, and the evidentiary hearing held on this matter.
This severe sanction comes after a sixteen-day evidentiary hearing and oral argument held between January and May of 2008, during which it is was revealed that the Secret Service failed to preserve, concealed, and even destroyed key evidence in this decade-old racial discrimination case brought by current and former Secret Service agents. Magistrate Judge Robinson ruled that rather than
providing the plaintiffs with all of the records to which they are legally
entitled, the Secret Service unjustifiably shared with plaintiffs “only those documents [the Agency] was inclined to produce.”
In yesterday’s order, Judge Robinson ruled that the Secret Service’s improper conduct “prejudiced Plaintiffs’ ability to conduct meaningful discovery and prepare to address the merits of their claims.” As a result of the Secret Service’s misconduct, the Court’s sanction order states that after Plaintiffs meet an initial burden of demonstrating discrimination at trial, the only fair result is that the Secret Service will be prohibited from putting on its own evidence in defense.
Reacting to the sanctions, Melissa N. Henke, an attorney at Hogan & Hartson who is representing the African American Secret Service Special Agents pro bono, said: “For years, the Secret Service has aggressively hidden the truth about the culture of pervasive racial discrimination at the Agency. The Court’s sanction is a positive step towards correcting the prejudice suffered by former and current African American Special Agents as a result of the Secret Service’s misconduct in this lawsuit. The Plaintiffs now look forward to presenting at trial their overwhelming evidence of a racially discriminatory promotions process at the Secret Service.”
Before yesterday’s order, the repeated efforts by the Secret Service to stonewall and avoid turning over relevant evidence had led to an unprecedented 13 previous orders from the Court requiring the Agency to turn over evidence to the Plaintiffs, and three prior sanctions for the Agency’s failure to do so. As a result, in ordering this severe sanction, Magistrate Judge Robinson ruled that “lesser coercive actions … have not deterred Defendant from his disregard of his discovery obligations” and “there is no reason to believe that Defendant will be responsive to any future orders.”
In the order, Judge Robinson expressed dismay at the behavior of the Secret Service, describing how the Agency’s own witnesses-“agents of one of the premiere federal law enforcement agencies, whose training includes preparation for court proceedings,” revealed that the Defendant had destroyed relevant documents, provided false, misleading, and conflicting information to the Court, and refused to produce documents that are central to the Plaintiffs’ case. Judge Robinson also expressed dismay at the misbehavior of Secret Service witnesses, finding that the credibility of the key witness for the Defendant was “thoroughly eviscerated.”
“The sanctions imposed against the Secret Service for their long, unabated pattern of obfuscation and delay sends the clear message that no entity, not even the United States government or the elite Secret Service, is above the law,” said Jennifer I. Klar, an attorney with Relman & Dane, a civil rights law firm that is also representing the Plaintiffs pro bono. “The African American Secret Service Agents, who have taken an oath to protect the President of the United States with their lives, deserve the respect of an Agency that allows them to air their grievances in a court of law, rather than the disrespect of an Agency which hid and even burned documents to avoid answering for generations of racial discrimination.”
“The former and current African American Secret Service Special Agents involved in this case want to see racial discrimination eradicated from the Agency. Ray Moore and the other Plaintiffs want to ensure that African American Special Agents coming up through the ranks do not experience the race discrimination suffered by them and generations of African American Secret Service Agents before them. Today’s order takes us one step closer to the implementation of a fair promotion system at the Secret Service, where Agents are promoted on the basis of their qualifications, rather than on the color of their skin, ” said E. Desmond Hogan, a partner at Hogan & Hartson.