U.S. Department of Justice. (Photo: Diego M. Radzinschi/NLJ.)
Next week, a federal jury in Washington will consider whether the U.S. Department of Justice denied a promotion to a veteran prosecutor because of his race.
Joshua Nesbitt, who is black, joined the Justice Department in 1992, according to court documents. In 2010, he applied for a promotion. The job went to a white attorney, Paul Ridge, who Nesbitt claimed had less experience and failed to meet the application requirements.
The Justice Department has argued it had nondiscriminatory reasons for not hiring Nesbitt for a newly created position managing national security litigation. Lawyers for the government contend Ridge had leadership and supervisory experience that Nesbitt lacked.
Jury selection begins April 28 in the U.S. District Court for the District of Columbia.
Nesbitt is represented by Cate Edwards and Sharon Eubanks, who joined the case in December. At the time, the two had recently joined with Edwards’ father, former U.S. senator and presidential candidate John Edwards, to launch the public interest law firm Edwards Kirby. Nesbitt had been handling the case on his own since early 2013.
Edwards and Eubanks could not immediately be reached for comment. Before joining Edwards Kirby, they co-founded and ran Washington-based civil rights litigation boutique Edwards & Eubanks.
The Justice Department tried to have the case tossed out last year, but U.S. District Senior Judge Royce Lamberth found Nesbitt presented enough evidence of inconsistencies in the hiring process to proceed to trial.
“Of course, it may be true, and at trial a jury may well find, that there are innocuous reasons for all of the department’s actions and that Mr. Nesbitt simply lost out to a better candidate. Alternatively, a jury may reasonably credit Mr. Nesbitt’s version of events,” Lamberth said in his September 2013 ruling. “It is not the duty of this court to resolve this dispute by judicial fiat at summary judgment.”
Nesbitt started his career with the Justice Department as an assistant U.S. attorney in New York. He moved to Washington, and Main Justice, in 1999, working in the organized crime and racketeering section, the National Security Division’s office of intelligence and its predecessor office, and the Organized Crime Drug Enforcement Task Force.
In 2010, he applied for a newly created job as deputy chief of the litigation section of the office of intelligence. The human resources office told him he was required to meet all of the application requirements, including submitting a writing sample and his law school transcript, according to his complaint. Ridge, Nesbitt claimed, was allowed to apply without submitting either.
Lawyers for the Justice Department said in court papers that any differences in the application packages were irrelevant. The chief of the litigation section, Nancy Newcomb, said in written statements submitted to the court that the “presence or absence” of certain materials didn’t affect her decision. She said she interviewed all three candidates, including Ridge and Nesbitt, and had personal knowledge of their work. The other candidate was a white woman.
Ridge “possessed the ideal combination of qualifications,” Newcomb said, including experience in national security matters, supervisory experience and experience taking part in high-level meetings. Nesbitt had “significant” litigation and national security experience, she said, but he had no supervisory experience and limited leadership experience and experience with high-level meetings.
Nesbitt said the job announcement didn’t list supervisory or management experience among the requirements or preferences. The department applied different application standards to Ridge and Nesbitt, Nesbitt said, and the government’s qualifications-based arguments were designed to mask the “unequal treatment” he experienced.
Lawyers in the case have been fighting over the past month about which testimony and information they can present at trial, including the fact that several high-ranking Justice Department officials—Attorney General Eric Holder Jr., Deputy Attorney General James Cole and Associate Attorney General Tony West—are black.
Nesbitt asked Lamberth to bar the government from referencing the race of top officials. The Justice Department said in court papers that it didn’t plan on raising the issue, but didn’t want to be “strictly precluded” in case the information did become relevant—for instance, if Nesbitt claimed there were no African-Americans in management at the Justice Department.
But Lamberth ruled April 16 that the issue was moot because lawyers for the government told him at an April 9 pretrial conference that they “will not make any references or elicit testimony regarding this issue at trial.”