U.S. Department of Justice building in Washington, D.C. (Photo: Diego M. Radzinschi/NLJ)
Nearly seven years to the day after he was fired, a former federal prosecutor in Cleveland reached a settlement Friday with the U.S. Justice Department in which he will receive full back pay, an additional $805,000 and an assignment as a work-from-home pardon attorney through May 2017.
The settlement with the former prosecutor—identified as “John Doe” in court and administrative documents—comes less than a month after the Merit Systems Protection Board ruled that he was entitled to reinstatement and back pay, which his attorney has estimated to exceed $1 million. Under the settlement terms, the former prosecutor dropped a related discrimination case filed in Washington federal court.
In the U.S. District Court for the District of Columbia, the former prosecutor stood to win at most $300,000 in damages.
Under the terms of the settlement, the former prosecutor will be reinstated effective Jan. 16, 2009, and the the department will compute the amount of back pay and benefits owed to him.
The Justice Department declined to comment on the settlement.
“Part of the reason that the settlement amount is substantial is that DOJ chose to litigate the case for several years,” said Jason Zuckerman, principal of Zuckerman Law, who was not involved in the former prosecutor’s case. “DOJ could have resolved it for far less money years ago.”
The former prosecutor, represented by J. Michael Hannon of the Hannon Law Group, was fired in January 2009 after the Justice Department determined he was no longer eligible for a security clearance.
In the years leading up to his firing, the prosecutor said he had raised concerns about the department’s conduct and faced escalating retaliation, according to a complaint he filed in Washington federal court. In 2008, the department sought to transfer the prosecutor from the economic crimes unit to the community crimes unit—a move he regarded as a “significant demotion,” according to the complaint.
The settlement converts his former job from a permanent position to a “term appointment,” bringing him to the earliest possible date he could leave with full retirement benefits. The prosecutor will be on “detail” assignment—teleworking through remote access—for the DOJ’s Office of Pardon Attorney.
According to court documents, the Justice Department based its firing on a psychologist’s letter that the prosecutor had submitted to show that his anxiety disorder would be exacerbated by the transfer to the community crimes unit.
In the August 2008 letter, the psychologist said the attorney “is currently having obsessive thoughts that he will have suicidal or homicidal ideation if he is moved to the ‘guns unit’ ”— a reference to the community crimes unit.
The attorney appealed his firing to the Merit Systems Protection Board, arguing that the department deprived him of established review procedures.
After the board remanded the case to the DOJ, the agency’s Access Review Committee voted in 2013 to reverse the firing.
For the Merits Systems Protection Board to overturn the firing, the ex-prosecutor needed to not only show a procedural error but also prove that the mistake made the difference in whether he stayed with the Justice Department.
With the review committee’s vote, he was able to convince the Merit Systems Protection Board that department had made a “harmful procedural error.”
In the U.S. District Court for the District of Columbia, the former prosecutor filed a separate but related suit in 2013 that alleged the Justice Department failed to accommodate his anxiety disorder in violation of the federal Rehabilitation Act. Over the Justice Department’s objection, the prosecutor was allowed to sue under the John Doe pseudonym.
The prosecutor accused the Justice Department of retaliating against him after he raised concerns in 2003 about a proposed search and seizure that he believed would be illegal. Among the escalating retaliatory acts was a decision to discipline him for conduct that occurred during an “emotional crisis” in 2003, according to his lawsuit.
Between 2005 and 2008, he raised further concerns about his supervisors’ conduct “in disciplinary proceedings, in political hirings, and in mishandling of a terrorist investigation,” according to the complaint.