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Interior Secretary Gale Norton learned firsthand earlier this year what it’s like to spend a day on the witness stand before U.S. District Judge Royce Lamberth trying to fend off a contempt citation. Now, if plaintiffs’ lawyers in a little-noticed legal action against the Treasury Department have their way, Paul O’Neill is going to be the next Cabinet officer to face Lamberth’s wrath. Secretary O’Neill is the defendant in a case that stems from alleged long-standing discrimination against federal workers — in this case, black agents at a law enforcement agency under the department’s control, the Bureau of Alcohol, Tobacco and Firearms (BATF). Tracing its origins to the “T-men” who put Al Capone behind bars, the BATF pursues gun-runners, arsonists, and illegal distillers. Like most law enforcement agencies, it has a history of being run by white men, a history that is changing. In 1992, 15 black agents, represented by D.C. attorney David Shaffer, filed a class action against Treasury in U.S. District Court. They asserted that the agency had long engaged in widespread discrimination in hiring, promotions, and assignments. The case got a huge boost three years later when The Washington Times and WJLA-TV reported that a former high-ranking BATF agent was the organizer of the “Good Ol’ Boys Roundup,” an annual Tennessee backwoods barbecue that often featured blatantly racist slogans and skits. It turned out that 64 BATF agents had attended at least one roundup. Ronald Noble, then-undersecretary of treasury, expressed the department’s “outrage” and said there was no room for racist behavior anywhere in the department. After angry senators from both parties grilled Treasury and Justice officials, Treasury did a top-to-bottom investigation, referred 31 employees for possible discipline, and immediately moved to settle the case. An exhaustive inspector general report concluded that “no one from BATF participated in any racist activities at the Roundups,” then-Secretary Robert Rubin announced in April 1996. Still, in July 1996, without admitting any wrongdoing, Treasury agreed to pay $4.7 million to about 250 African-American agents and to reform its personnel systems to prevent future discrimination. Judge Lamberth approved the settlement, which gave Treasury four years to comply. Now Shaffer, who has filed several other discrimination claims on behalf of federal workers, contends that Treasury isn’t living up to its side of the bargain. He and his colleagues claim that the government hasn’t even begun the process of classifying all the jobs at BATF, compiling statistical reports to understand how the discrimination occurred, and implementing measures to keep it from happening again. On March 28, Shaffer and his partner Ronald Schmidt raised the stakes. They filed a motion asking Lamberth to hold a hearing at which Secretary O’Neill would be forced to explain, on pain of contempt, his department’s actions since the 1996 settlement. The motion claims that high-ranking officials at Treasury have purposely thwarted efforts to meet their obligations under the settlement. “Nothing is going to change the attitude of the high-level bureaucrats who control everything at Treasury,” says Shaffer in an interview. “Secretary O’Neill has said he spent his whole life trying to remove barriers to human potential. But here he hasn’t done it. “We need to find out who gave the order not to comply with the settlement, and the judge should consider punishing that person,” Shaffer adds. In court papers Shaffer wrote, “[Treasury] has not completed nor used its best efforts to complete the mandated reforms in the time required. It is over sixteen months past the Settlement Agreement’s deadline and [Treasury] has yet to put in place a validated promotions assessment system — and no anticipated completion date has been set.” Shaffer says he’s pleased to be going before Judge Lamberth, who he says has an “outstanding reputation.” After all, in the case targeting Interior Secretary Norton, which involves allegations that the government mismanaged Indian trust accounts worth billions of dollars, Lamberth has shown little patience with government lawyers who are trying to explain the agency’s alleged inactions. In the BATF case, the government filed a brief on April 30 saying that Treasury has in fact “used best efforts to implement these reforms” and “remains substantially in compliance with the terms of the settlement agreement.” In fact, the government said in court papers, the BATF’s new system will start operating in less than two months, on July 1. The government also launched a broader challenge against the black agents’ bid for a contempt hearing. It said that because the agreed four-year period of continued court supervision ended last July, Lamberth lacks jurisdiction at this point to hear most of the case. “The court is without even theoretical jurisdiction to entertain anything but a narrow slice of plaintiffs’ thick motion,” lawyers in the U.S. Attorney’s Office wrote. To this argument Shaffer replies, “That flouts the jurisdiction of a district judge. It would mean that simply by wasting time, you can make the case go away.” FOCUS ON THE PLAINTIFFS This is a marquee case for Shaffer, 43, and Schmidt, 36, big-firm refugees who had experience both filing and defending discrimination cases when they formed their three-lawyer outfit, Shaffer, Rapaport & Schmidt. As an Arnold & Porter associate in 1989, Shaffer filed an employment discrimination case against the Federal Bureau of Investigation. Shaffer left Arnold & Porter in 1992 and took his civil rights practice to the D.C. office of Baltimore’s Semmes, Bowen & Semmes, then to Arter & Hadden, where he hired Schmidt in 1998. The two went to Thelen Reid & Priest in 2000 and left in 2001 to start their own firm. Shaffer says it is easier to pursue plaintiff-side work at a smaller firm, where there is little potential for client conflicts. Shaffer, Rapaport & Schmidt handles some insurance defense and defendants’ job-bias work, which provide a steady income while the cases against government agencies move slowly through the courts. But the firm has several such cases in the pipeline. In May 2000, while at Thelen Reid & Priest, Shaffer and Schmidt filed another race discrimination case against Treasury, this time citing alleged bias at the Secret Service. This case was assigned to U.S. District Judge Richard Roberts, who has yet to act on motions filed nearly two years ago. Yet a third claim against Treasury, this one on behalf of Hispanic agents of the Customs Service, is now at the Equal Employment Opportunity Commission. Shaffer and Schmidt are concerned that the history of job discrimination in federal law enforcement may be hard to break. John Magaw, who has headed both the BATF and the Secret Service, is now the chief of the Transportation Security Administration, the new agency that is overseeing airport screening. “We’re concerned that this new agency will be filled by Magaw with the same type of people as the other ones,” says Schmidt. “Magaw never understood the connections between the roundup and the black agents’ suit.” Shaffer says there is little reason to believe that the federal government is moving to mend its ways. “We had hoped that the Bush people would be better, that they would take a hard look at the case,” he says. “But we haven’t seen anything like that.”

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