Federal judge dismisses suit by ex-prosecutor against DOJ

[JURIST] A federal judge on Thursday dismissed [opinion, PDF] a suit by former assistant US Attorney Richard Convertino in which the former prosecutor accused the Department of Justice (DOJ) [official website] of violating the Administrative Procedures Act and his right to privacy. Judge Royce Lamberth of the US District Court for the District of Columbia [official website] dismissed the suit because of Convertino's inability to identify who within the DOJ he believed had leaked details of the DOJ's misconduct investigation of Convertino [JURIST news archive] to a reporter from the Detroit Free Press in 2004. Lamberth detailed the lengthy history of the suit, saying, "Seven years of litigation have sapped the resources of more than one United States District Court." One of the main reasons that Lamberth identified for dismissing the suit was the necessity of Convertino's ability to identify the alleged leaker. Because Convertino could not do so, Lamberth wrote:

Part of the reason Convertino has to know the leaker's identity in order to defeat DOJ's Motion for Summary Judgment is that without it, he cannot show that the DOJ employee who allegedly leaked information to the Detroit Free Press was acting within the scope of his or her DOJ employment at the time of the leak. In order for an agency to be liable for a Privacy Act violation allegedly committed by one of its employees, the responsible agency employee must have been acting within the scope of his or her employment. Therefore, even if Convertino could prove that the leak must have come from a DOJ employee-which he cannot-his claim would fail because no reasonable fact-finder could conclude that any such DOJ employee was acting within the scope of his or her employment at the time of the leak.
David Ashenfelter, the reporter whose 2004 story initiated Convertino's suit, has repeatedly refused to identify the source.

The DOJ investigation into Convertino's alleged misconduct centered on his conduct in a terrorism case in Detroit in the wake of the 9/11 attacks. Convertino was found not guilty of obstruction of justice [JURIST report] in 2007 for his part in the botched prosecution. Convertino had resigned [JURIST report] from the Department in May 2005 in the fallout from that case. In the original trial, two of the defendants were convicted, only to have their sentences overturned [JURIST report] in 2004 by the judge due to the allegations that the prosecution did not turn over the satellite photos alleged to be exculpatory by the DOJ to the defense.

 

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