Why Government Lawyers Must Do Better: The Fourth Circuit Blasts the EEOC for “Disappointing Litigation Conduct”

By Derek Stikeleather and Melissa Loureiro

Government lawyers enjoy the tremendous goodwill that flows from the common perception that, because they represent the public rather than self-interested private parties, they are more honest and forthcoming in giving courts not just the truth but the whole truth. Although all attorneys have a duty of candor to the court and a duty to zealously represent their clients, every lawyer strives to be seen as more credible than opposing counsel. When the client in a criminal or civil case is the United States of America, the attorney has already taken the high ground because the public and the judiciary often expect greater candor from government attorneys, even when it could potentially harm their case.

A handful of recent high-profile federal appellate decisions suggests that this goodwill may be in danger. Some judges have pointedly criticized the ethics and candor of federal prosecutors, sparking a national conversation on whether government attorneys truly have an enhanced ethical obligation to pursue truth and justice even when it may not help them win the case. See e.g., Baca v. Adams, No. 13-56132, 2015 WL 412835, — F.3d – (9th Cir. Jan. 8, 2015) (directing district court to issue conditional writ of habeas corpus releasing petitioner from custody because of prosecutorial misconduct). A recent Fourth Circuit opinion adds another page to a growing record of federal appellate judges openly criticizing government lawyers for miserably failing to meet their special ethical obligations and duties. EEOC v. Freeman, No. 13-2365 (4th Cir. Feb. 20, 2015); see also EEOC v. Propak Logistics, Inc., 746 F.3d 145 (4^th Cir. 2014) (Wilkinson, J., concurring); EEOC v. Kaplan Higher Ed. Corp., 748 F.3d 749 (6^th Cir. 2014).

In Freeman, the Fourth Circuit affirmed the District of Maryland’s summary judgment in favor of the defendant-employer Freeman, whom the Equal Employment Opportunity Commission (“EEOC”) charged with employment practices that had an impermissibly disparate impact on “black and male job applicants.” Id. at *3. Since 2001, Freeman had run criminal background checks for all prospective job applicants and credit checks for “credit sensitive” positions; it rejected applicants whose histories uncovered prohibited criteria. Id. In 2008, Freeman denied a job applicant, triggering a complaint and an EEOC investigation of its credit check and criminal‑background check policies. Id. In early 2009, the EEOC notified Freeman that its policies violated Title VII and filed suit, alleging “Freeman’s criminal checks had a disparate impact on black and male job applicants.” Id.

The EEOC’s disparate-impact case hinged on the expert data analysis and testimony of its designated “industrial/organizational psychologist,” Kevin Murphy. After discovery closed, the District of Maryland excluded Murphy’s report and testimony, finding them “rife with analytical errors and completely unreliable under Federal Rule of Evidence 702.” Id. at *6 (internal citations omitted). The trial court then granted Freeman’s motion for summary judgment, holding that the EEOC failed to establish a prima facie case of disparate impact. Id.

Finding nothing remotely close to an abuse of discretion in the trial court’s exclusion of Murphy under Daubert, the Fourth Circuit affirmed. Id. at *10. In doing so, it echoed the district court’s concerns about “an alarming number of errors and analytical fallacies in Murphy’s reports, making it impossible to rely on any of his conclusions” and “a mind-boggling number of errors and unexplained discrepancies in Murphy’s database.” Id. at *7–8. The Fourth Circuit characterized Murphy’s errors as “pervasive” and his analysis “utterly unreliable.” Id. at *10.

Adding to the already-scathing majority opinion, Judge Agee wrote a 10-page concurring opinion, further reprimanding the EEOC for its “disappointing litigation conduct.” Id. at *11. Judge Agee found “a pattern of suspect work from Murphy” the most troubling, and expressed confusion about the EEOC’s continued defense of Murphy’s work despite Murphy’s “record of slipshod work, faulty analysis, and statistical sleight of hand.” Id. at *17, 19. He further questioned the EEOC’s conduct in “advance[ing] positions that are not grounded in law” and the agency’s apparent “view that problems in an expert’s data are an inappropriate reason to exclude that expert.” Id. at 19. He did not mince words: “The Commission’s work of serving the public interest is jeopardized by the kind of missteps that occurred here . . . . It is my hope that the agency will reconsider pursuing a course that does not serve it or the public interest well.” Id. at *11.

In publicly taking the EEOC lawyers to the proverbial woodshed, Judge Agee stressed the EEOC’s heightened power and responsibility: “EEOC wields significant power, some of which stems from the agency’s broad discretion to investigate, conciliate, and enforce, and some of which derives from the public actions that exert influence outside the courtroom.” Id. at *21. Its “actions can also be expected to have broader consequences than those of an ordinary litigant given the ‘vast disparity of resources between the government and private litigants.’” Id. (quoting EEOC v. Great Steaks, Inc., 667 F.3d 510, 519 (4th Cir. 2012)). Because of its significant power, the “EEOC must be constantly vigilant that it does not abuse the power conferred upon it by Congress, as its ‘significant resources, authority, and discretion’ will affect all those outside parties they investigate or sue.” Id. at *22 (quoting EEOC v. Propak Logistics, Inc., 746 F.3d 145, 156 (4th Cir. 2014)).

The EEOC’s clumsy handling of the Freeman case highlights how quickly the enhanced goodwill that government lawyers enjoy can sour. Enhanced expectations can bring enhanced consequences. Clearly frustrated by the EEOC’s conduct in Freeman, Judge Agee concluded with a strong warning: “It would serve the agency well in the future to reconsider how it might better discharge the responsibilities delegated to it or face the consequences for failing to do so.” Id. at *22–23. One hopes that this shot across the bow will re-focus the EEOC and all government attorneys on the broader impact that their individual cases can have on the nation’s confidence in its democratic government.