records destroyed in violation of formal regulations requiring preservation “would likely constitute spoliation”
How later courts described this case
- records destroyed in violation of formal regulations requiring preservation “would likely constitute spoliation”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SEAN M. GERLICH, et al.,
Plaintiffs,
v. Civil Action No. 08-1134 (JDB)
UNITED STATES DEPARTMENT
OF JUSTICE, et al.,
Defendants.
MEMORANDUM OPINION
This case arises from a dark chapter in the United States Department of Justice's history.
Plaintiffs are unsuccessful applicants for employment with the Department of Justice ("DOJ")
who assert claims arising from the well-publicized misconduct of senior DOJ officials who
apparently rejected certain applicants based upon their political affiliations. This Court
previously dismissed some of plaintiffs' claims, including all of the claims against individual
defendants who are former and current DOJ officials. Plaintiffs have remaining claims against
defendant DOJ for monetary damages under the Privacy Act of 1974. The Court also previously
dismissed several of the original plaintiffs for lack of standing to bring these remaining Privacy
Act claims. Now pending before the Court are cross-motions for summary judgment filed by the
three remaining plaintiffs and by DOJ. Also pending before the Court are plaintiffs' motion for
spoliation sanctions and DOJ's motion for leave to file an amended answer.
Plaintiffs claim that the Justice Department violated the Privacy Act in 2006 in its
administration of the Attorney General's Honors Program, the program by which DOJ hires
recent law school graduates and judicial law clerks. The Privacy Act generally prohibits
1
government agencies from maintaining records describing how an individual exercises First
Amendment rights. Plaintiffs allege that the Department found such information about them on
the Internet, supplemented their applications for the Honors Program with that information, and
denied them interviews on the basis of the information. The Justice Department does not deny
that DOJ officials conducted this activity with respect to some, but not all, applicants to the 2006
Honors Program. Because the relevant files have been destroyed, however, DOJ maintains that
plaintiffs cannot prove that inappropriate records were created about them specifically. Plaintiffs
counter that the destruction of the files constituted spoliation and that they are therefore entitled
to an inference that inappropriate records were created about them. More specifically, they
contend that the destruction of the files constituted spoliation because it violated the Federal
Records Act.
The Court agrees with plaintiffs that misconduct from senior government officials should
not be condoned. Nonetheless, as much as the Court might disapprove of certain conduct, the
evidence before it must be objectively analyzed under the law. As explained below, the Court
finds that destruction of the relevant files did not constitute spoliation. Without a spoliation
inference, plaintiffs have failed to offer evidence on which a finder of fact could reasonably hold
the Department liable under the Privacy Act. Hence, the Court will deny plaintiffs' motions for
spoliation sanctions and summary judgment and grant the Justice Department's motion for
summary judgment. For the reasons set out below, the Court will also grant DOJ's motion for
leave to file an amended answer.
I. Background
2
a. Allegations of Misconduct in the Honors Program and Summer Law Intern Program Hiring
Process 1
The Attorney General's Honors Program is the exclusive means by which DOJ hires
recent law school graduates and judicial law clerks who have no prior legal experience.
OIG/OPR Report at 3. Historically, the Honors Program has been very competitive and the
number of applications received in a typical year far surpasses the number of positions that are
available. Id. Several of DOJ's component divisions participate in the Honors Program hiring
process, which is overseen by DOJ's Office of Attorney Recruitment and Management
("OARM"). Id. Although OARM processes all applications, each component hires its own
Honors Program attorneys. Id. A similar hiring process also exists for paid summer interns in
DOJ's Summer Law Intern Program ("SLIP"). Id. at 3-4.
In 2002, the Honors Program and SLIP hiring process was revamped. See id. at 4.
Among other things, in order to allow more political appointees in leadership positions to
participate, the hiring process became more centralized in Washington, DC. See id. at 4. To that
end, a Screening Committee was created to review and approve the candidates who were
selected for interviews by the component divisions. Id. at 5. Although the composition of the
Screening Committee changed from year to year, the conduct currently at issue involves the
Screening Committee as constituted in 2006.
1
The facts set forth in this section are taken primarily from plaintiffs' second amended complaint
("Sec. Am. Compl."). The second amended complaint incorporates a report issued jointly by
DOJ's Office of the Inspector General ("OIG") and Office of Professional Responsibility
("OPR"), entitled "An Investigation of Allegations of Politicized Hiring in the Department of
Justice Honors Program and Summer Law Intern Program" (June 24, 2008) ("OIG/OPR
Report"). Because the second amended complaint incorporates this report, the Court will also
consider it in resolving the instant motions. See EEOC v. St. Francis Xavier Parochial Sch., 117
F.3d 621, 624 (D.C. Cir. 1997). The second amended complaint also incorporates an additional
report issued jointly by OIG and OPR, entitled "An Investigation of Politicized Hiring by
Monica Goodling and Other Staff in the Office of the Attorney General" (July 28, 2008). This
report is not relevant to the present motions.
3
The 2006 Screening Committee consisted of Michael Elston, the Deputy Attorney
General's Chief of Staff, Daniel Fridman, an Assistant U.S. Attorney on detail to the Deputy
Attorney General's office, and Esther Slater McDonald, a Counsel to the Associate Attorney
General. Id. at 37-38. According to the protocol developed informally by the Screening
Committee, Ms. McDonald first reviewed the applications of those candidates who were selected
for interviews by DOJ components. Id. at 71. Ms. McDonald also conducted Internet searches
to obtain further information about the candidates. Id. at 72. Ms. McDonald made notations on
applications reflecting her impressions of the content of the applications as well as information
found on the Internet and attached print-outs of certain Internet search results to some
applications. Id. at 71-73, 82. Ms. McDonald then separated the applications into categories
based on whether she thought each candidate should be "deselected" from the interview list. Id.
at 72-73. Ms. McDonald next passed the applications to Mr. Fridman, who also made
annotations on applications and separated the applications into similar categories. Id. Mr.
Fridman then passed the applications to Mr. Elston, who separated the applications into final
categories indicating which candidates were deselected from interviews. Id. at 72, 81. The
Screening Committee deselected 186 out of the 602 Honors Program candidates who had been
selected for interviews by DOJ components; the Committee gave no reasons or explanations for
its decision to deselect a candidate from the list of those to be interviewed. Id. at 5, 38. The
components were allowed to appeal the Screening Committee's decision via e-mail to Mr. Elston.
Id. at 38. The components appealed 32 of the deselections, and 16 were granted. Id.
From 2002 through 2005, OARM received very few complaints about the new hiring
process or the decisions of the Screening Committee. Id. at 5. However, in 2006 OARM
received a number of complaints regarding the abnormal length of time taken for Screening
4
Committee review and the unusually large number of seemingly qualified Honors Program and
SLIP candidates who were deselected for interviews. Id. As a result of the complaints, DOJ
changed the hiring process once again in 2007, transferring control of the Screening Committee
from political appointees to career employees. Id. Then, in April 2007, an anonymous letter was
sent to the Chairmen of the House and Senate Judiciary Committees from "A Group of
Concerned Department of Justice Employees." Id. at 66. That letter claimed that a number of
highly qualified candidates, who had been selected for interviews by career employees within the
individual DOJ components, had been subsequently rejected by the Screening Committee on the
basis of their Democratic Party or liberal affiliations. Id. at 1 n.1. OIG and OPR, which were
already investigating issues related to the removal of certain United States Attorneys, decided to
expand the scope of their investigation to include the allegations regarding Honors Program and
SLIP hiring. Id. at 1.
On June 24, 2008, OIG and OPR issued the joint report summarizing their findings. Sec.
Am. Compl. ¶ 59. That report serves as the basis for the allegations in this case. Plaintiffs now
assert that the creation and maintenance of records containing First Amendment information by
Ms. McDonald violated the Privacy Act.
b. Procedural History
This case has a fairly long procedural history in this Court. Plaintiff Sean Gerlich
originated this action on June 30, 2008, less than a week after the OIG/OPR report was released.
The first amended complaint followed on August 15, 2008. Before all defendants could respond
to the amended complaint, plaintiffs moved for leave to amend their complaint for a second time.
This Court granted plaintiffs' motion and the second amended complaint was filed on November
12, 2008. The second amended complaint generally alleges that plaintiffs — all unsuccessful
5
applicants for employment with DOJ — have been injured by the "politicized" hiring process
that plagued the Honors Program and SLIP during 2002 and 2006. Specifically, the second
amended complaint asserts fifteen separate counts arising under the Privacy Act (Counts I-VII),
the U.S. Constitution (Counts VIII-XIII), the Civil Service Reform Act (Count XIV), and the
Federal Records Act (Count XV).
On September 16, 2009, the Court dismissed plaintiffs' claims arising under the U.S.
Constitution, the Civil Service Reform Act, and the Federal Records Act. See Gerlich v. U.S.
Dep't of Justice, 659 F. Supp. 2d 1, 8-12, 18-20 (D.D.C. 2009). These claims included all the
claims against the defendants who are current or former DOJ officials, so those defendants were
dismissed from the case. See id. at 18-20. The Court also dismissed plaintiffs' claims for
equitable relief. See id..
Plaintiffs' remaining claims are against the Department of Justice for monetary damages
and arise under the Privacy Act of 1974, 5 U.S.C § 552a (the "Act"). In Counts I through VII of
the Second Amended Complaint, plaintiffs assert that DOJ violated seven separate provisions of
the Act. Regarding the first two claims (Counts I and II), the Court concluded that the plaintiffs
had satisfied their pleading burden. See Gerlich, 659 F. Supp. 2d. at 13-16. The Court dismissed
the five other claims (Counts III through VII), because the provisions relied on in those claims
include a requirement that the documents at issue be "'actually incorporated into a system of
records'" and the documents here were not. See id. at 16-17 (quoting Maydak v. United States,
363 F.3d 512, 516 (D.C. Cir. 2004)). The Court also concluded that only three of the plaintiffs
— James Saul, Matthew Faiella and Daniel Herber — had standing to bring the remaining two
Privacy Act claims and, accordingly, dismissed the other named plaintiffs from the suit. See
6
Gerlich, 659 F. Supp. 2d at 17-18. The three remaining plaintiffs were all applicants to the 2006
Honors Program. Sec. Am. Compl. ¶¶ 3-10.
On September 29, 2009, plaintiffs moved for partial reconsideration of the Court's
dismissal of some of plaintiffs' claims and dismissal of some plaintiffs from the suit. The Court
denied plaintiffs' motion for partial reconsideration in November 2009. See Mem. and Order of
Nov. 13, 2009 [Docket Entry 116]. Plaintiffs then moved for an entry of final judgment on their
constitutional claims. The Court denied entry of final judgment in December 2009. See Mem.
and Order of Dec. 4, 2009 [Docket Entry 126]. On November 20, 2009, plaintiffs moved to
certify a class comprising virtually all individuals who applied, but were not selected, for the
Honors Program and SLIP in 2006. The Court denied class certification in April 2010. See
Mem. Op. and Order of Apr. 19, 2010 [Docket Entry 133]. Plaintiffs then moved for
reconsideration of the denial of class certification. The Court denied plaintiffs' motion for
reconsideration of the denial of class certification in June 2010. See Order of June 4, 2010
[Docket Entry 139]. The parties thereafter proceeded with discovery.
On May 20, 2011, the three remaining plaintiffs moved for summary judgment. DOJ filed
a cross-motion for summary judgment on June 27, 2011. On July 25, 2011, plaintiffs moved for
imposition of spoliation sanctions in connection with their motion for summary judgment. On
August 19, 2011, DOJ moved for leave to file an amended answer. After receiving the parties'
briefing, the Court held a hearing on October 14, 2011 on the pending motions. On October 17,
2011, the Court ordered the parties to submit supplemental briefing. See Minute Order of Oct.
17, 2011. The parties then filed their supplemental briefs and the pending motions are now ripe
for resolution.
II. DOJ's Motion for Leave to File an Amended Answer
7
Before addressing the substance of plaintiffs' claims, the Court will address the
Department of Justice's motion for leave to file an amended answer. The Department seeks to
amend its answer, originally filed in October 2009, in order to add the affirmative defense of
mitigation of damages. See Def.'s Mem. in Supp. of its Mot. for Leave to File an Am. Answer
[Docket Entry 170] ("Def.'s Am. Mem."). The Department indicates that this defense involves a
September 2008 letter from the Attorney General offering remedial interviews to applicants,
including the plaintiffs, whom the Screening Committee had deselected from interviews for the
Honors Program. Id. at 5 n.4. By the terms of the letter, deselected applicants had to respond
within two weeks in order to receive a remedial interview. See Def.'s Mem. in Opp'n to Pls.'
Mot. for Summ. J. and in Supp. of Def.'s Cross-Mot. for Summ. J. [Docket Entry 158] ("Def.'s SJ
Mem.") Exs. J, K, L. None of the three plaintiffs did so. The Department attributes the need to
amend its answer to "oversight by counsel." Id. at 3.
Federal Rule of Civil Procedure 15(a)(2) instructs courts to "freely give" leave to amend
a pleading "when justice so requires." Whether to grant a motion to amend is within the sound
discretion of the district court. Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996).
However, it is an abuse of that discretion to deny a motion to amend without a "justifying" or
sufficient reason. Foman v. Davis, 371 U.S. 178, 182 (1962). These reasons include "undue
delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies
. . . undue prejudice to the opposing party . . . futility of amendment, etc." Id. Generally, under
Rule 15(a) the non-movant bears the burden of persuasion that a motion to amend should be
denied. See Dove v. Washington Metro. Area Transit Auth., 221 F.R.D. 246, 247 (D.D.C.
2004); see also Gudavich v. District of Columbia, 22 Fed. Appx. 17, 18 (D.C. Cir. Dec. 27,
2001) (noting the non-movant "failed to show prejudice from the district court's action in
8
allowing the motion to amend"). A court may, however, “deny a motion to amend on grounds of
futility where the proposed pleading would not survive a motion to dismiss.” Nat'l Wrestling
Coaches Ass'n v. Dep't of Educ., 366 F.3d 930, 945 (D.C. Cir. 2004); see also Foman, 371 U.S.
at 182.
Here, DOJ argues that there is no prejudice to plaintiffs because plaintiffs appear to have
anticipated the mitigation defense and also previously received notice of the defense by means of
the Department's related interrogatories. Def.'s Am. Mem. at 4-5. Plaintiffs oppose the motion
for leave to amend. They argue that the Department should be barred from procedural leniency
now since it previously opposed plaintiffs' class certification on procedural grounds and that the
defense that the Department seeks to add is without merit. Pls.' Opp'n to Def.'s Mot. for Leave to
Am. its Answer [Docket Entry 171] at 3-14. Furthermore, plaintiffs contend that they are
prejudiced by the late amendment because two of the three plaintiffs made employment
decisions subsequent to the Department's October 2009 answer and were not given sufficient
notice prior to then. Id. at 15-19.
Plaintiffs' arguments in favor of denying the motion are unavailing. It is not relevant that
the Department previously opposed plaintiffs' class certification on procedural grounds, since the
standard for class certification is quite different from the standard for granting leave to amend.
Furthermore, it is hardly futile for the Department to argue that plaintiffs failed to mitigate
damages by declining a remedial offer to interview for the very jobs that are the subject of this
suit. Finally, the remedial offer that is the subject of the amendment came and went before the
Department initially filed its answer. It is hard to see how plaintiffs are prejudiced by an
amendment to the answer regarding an event that happened before the answer's filing.
Accordingly, the Court will grant the Department's motion for leave to file an amended answer.
9
III. Privacy Act Claims
The Privacy Act "regulate[s] the collection, maintenance, use, and dissemination of
information" about individuals by federal agencies. Privacy Act of 1974, Pub. L. No. 93–579, §
2(a)(5), 88 Stat. 1896, 1896. "The Act gives agencies detailed instructions for managing their
records and provides for various sorts of civil relief to individuals aggrieved by failures on the
Government's part to comply with the requirements." Doe v. Chao, 540 U.S. 614, 618 (2004).
One such form of relief enables an individual to seek money damages when an agency
intentionally or willfully fails to comply with the Act's requirements "in such a way as to have an
adverse effect on an individual." 5 U.S.C. § 552a(g)(1)(D), (g)(4).
Under the Privacy Act, a "record" is "any item, collection, or grouping of information
about an individual that is maintained by an agency . . . and that contains his name, or the
identifying number, symbol, or other identifying particular assigned to the individual." Id. §
552a(a)(4). The records at issue here are the handwritten notes and print-outs allegedly created
by Ms. McDonald from Internet searches performed during the Screening Committee's 2006
review of Honors Program candidates. The first OIG/OPR report established, and both parties
now acknowledge, that to the extent these records once existed they were destroyed in early
2007. See First OIG/OPR Report at 68-69. The destruction of the records is discussed in more
detail below.
As noted, the Court previously dismissed the Privacy Act claims in Counts III through
VII of the Second Amended Complaint because plaintiffs did not allege their files were
incorporated into a "system of records," as required by the provisions at issue in those counts.
The remaining Counts I and II assert that DOJ has violated subsections (e)(5) and (e)(7) of the
Act, which do not require the files to have been incorporated into a system of records.
10
a. Subsection (e)(7) — Count I
Subsection (e)(7) provides that any agency maintaining a system of records shall
"maintain no record describing how any individual exercises rights guaranteed by the First
Amendment unless expressly authorized by statute or by the individual about whom the record is
maintained or unless pertinent to and within the scope of an authorized law enforcement
activity." 5 U.S.C. § 552a(e)(7). The D.C. Circuit has concluded "that an agency that maintains
any system of records is prohibited from maintaining a record of an individual's First
Amendment activity 'even if [that record] is not subsequently incorporated into the agency's
system of records.'" Maydak v. United States, 363 F.3d 512, 516 (D.C. Cir. 2004) (quoting
Albright v. United States, 631 F.2d 915, 916-17 (D.C. Cir. 1980)) (alteration in original).
Beyond establishing that the agency maintained the record itself, a damages claim for a
violation of subsection (e)(7) requires "that the making of this record had an adverse effect on
[plaintiff] as required by subsection (g)(1)(D) of the Act." Albright, 631 F.2d at 921. Moreover,
a plaintiff "must establish that 'the agency acted in a manner which was intentional or willful.'"
Id. (quoting 5 U.S.C. § 552a(g)(4)).
Plaintiffs here assert that Ms. McDonald conducted Internet searches regarding
applicants' political and ideological affiliations, including "organizations to which candidates
belonged." Sec. Am. Compl. ¶ 62, 103. Plaintiffs further assert that she both created print-outs
of such information and made written "comments on the applications throughout the process
concerning the liberal affiliations of candidates." Id. As for the "adverse effect" that these
records had on plaintiffs, plaintiffs assert that the making of the records adversely affected their
search for post-law school employment — in the form of out-of-pocket expenses, loss of time
and emotional distress — and deprived them of a fair opportunity to obtain the professional and
11
economic benefit of employment in the Honors Program. See, e.g., Sec. Am. Compl. ¶¶ 40, 42.
Finally, with respect to the element of "intentional or willful" conduct, plaintiffs assert that DOJ,
acting through its employees, flagrantly disregarded "the legal requirements and prohibitions that
are imposed upon it by Privacy Act subsection (e)(7)" and that such disregard constitutes
intentional or willful conduct, not mere gross negligence. See Sec. Am. Compl. ¶¶ 105-06.
The Justice Department previously argued that Count I should be dismissed because it is
precluded by the Civil Service Reform Act. See Gerlich, 659 F. Supp. 2d at 14. The Court
rejected this argument, concluding that it has an obligation to "reach[] the merits of the Privacy
Act claim" while being "mindful of the tension that often exists between the CSRA and the
Privacy Act." Id. at 14-15. The Department also contended that plaintiffs failed to allege a
causal link between the Privacy Act and the adverse effect the records had on the plaintiffs
because "the mere collection of information on the Internet concerning plaintiffs' First
Amendment activities did not cause the alleged harm — it was only caused by the subsequent
actions of the Screening Committee." Id. at 15. The Court rejected this argument, concluding
that it was sufficient for plaintiffs to allege that "the adverse personnel action would not have
occurred but for reliance upon the offending record." Id.
b. Subsection (e)(5) — Count II
Subsection (e)(5) provides that any agency maintaining a system of records shall
"maintain all records which are used by the agency in making any determination about any
individual with such accuracy, relevance, timeliness, and completeness as is reasonably
necessary to assure fairness to the individual in the determination." 5 U.S.C. § 552a(e)(5).
"Subsection (g)(1)(C) provides a civil remedy if an agency fails to satisfy the standard in
subsection (e)(5) and consequently a determination is made which is adverse to the individual."
12
Deters v. U.S. Parole Comm'n, 85 F.3d 655, 657 (D.C. Cir. 1996). 2 To prevail on a claim for
money damages under subsection (g)(1)(C), a plaintiff must establish that: "(1) he has been
aggrieved by an adverse determination; (2) the [agency] failed to maintain his records with the
degree of [relevancy] necessary to assure fairness in the determination; (3) the [agency's]
reliance on the [irrelevant] records was the proximate cause of the adverse determination; and (4)
the [agency] acted intentionally or willfully in failing to maintain [relevant] records." Id. at 657.
Plaintiffs assert that they suffered an adverse determination (deselection/non-hiring), that
DOJ maintained irrelevant records (regarding plaintiffs' First Amendment activities) which
undermined the fairness of the hiring process, that DOJ's reliance on those records (through its
employees) proximately caused the adverse determination, and that DOJ (again, through its
employees) acted intentionally or willfully in maintaining such records.
c. Conduct Violating the Privacy Act
It is important to be clear about what conduct would constitute a Privacy Act violation
under plaintiffs' remaining claims and what would not. Performing Internet searches on the
plaintiffs would not in and of itself constitute a Privacy Act violation, even if the searches were
related to plaintiffs' First Amendment activities. Subsections (e)(5) and (e)(7) both provide
restrictions on how an agency "maintain[s]" "records." The Act defines "record" as "any item,
collection, or grouping of information about an individual that is maintained by an agency . . .
and that contains his name, or the identifying number, symbol, or other identifying particular
2
Subsection (g)(1)(C) provides that an individual may bring a civil action whenever an agency
"fails to maintain any record concerning [him] with such accuracy, relevance, timeliness, and
completeness as is necessary to assure fairness in any determination relating to the qualifications,
character, rights, or opportunities of, or benefits to [him] that may be made on the basis of such
record, and consequently a determination is made which is adverse to [him]." As is true for
subsection (e)(7) claims, the "system of records" requirement does not apply to claims made
under subsections (e)(5) and (g)(1)(C). See McCready v. Nicholson, 465 F.3d 1, 12 (D.C. Cir.
2006).
13
assigned to the individual." 5 U.S.C. § 552a(a)(4). Under the Privacy Act, "the term 'maintain'
includes maintain, collect, use, or disseminate." Id. § 552a(a)(3). The D.C. Circuit has thus
concluded that the Act "clearly prohibits even the mere collection of such a record, independent
of the agency's maintenance, use, or dissemination of it thereafter." Albright, 631 F.2d at 918.
While this language is fairly broad, it nonetheless includes a requirement that there be a "record;"
that is, the information must have been committed to some form. Hence, the Court finds that a
"record" (such as a written annotation or print-out) must have been created from an Internet
search in order to implicate the Act.
Furthermore, the Department of Justice's use of political or ideological affiliation in civil
service hiring does not, in and of itself, violate the Privacy Act. This conduct is certainly
inappropriate, and could conceivably be the basis of some other claim. But as far as the Privacy
Act is concerned, in order to prevail plaintiffs must show that an inappropriately maintained
record caused their injury. Hence, to prevail on their Privacy Act claims here, plaintiffs must
show that their deselection was caused by an inappropriate record rather than information
gleaned from the applications that they themselves submitted to the Department.
IV. Evidence
The key issue at this point is whether Ms. McDonald created records containing First
Amendment information about the three plaintiffs. It is undisputed that Ms. McDonald
performed Internet searches regarding, among other things, publications written by some
applicants and the group membership of some applicants. It is also undisputed that she
sometimes printed out the information she found on the Internet and sometimes made
annotations on specific applicants' files regarding information found on the Internet, and that
these annotations and print-outs led to some of the Screening Committee's decisions. The
14
question, however, is whether Ms. McDonald took this action regarding these three specific
plaintiffs. The Court has been presented with evidence regarding Ms. McDonald's Internet
search history, but not with any direct evidence as to which of her searches resulted in the
creation of annotations or print-outs. The actual materials used by the Screening Committee
were apparently destroyed shortly after the Committee's decisions were made. Plaintiffs argue
that this destruction violated the Federal Records Act and therefore constituted spoliation,
entitling them to an inference that Ms. McDonald did, in fact, create inappropriate records about
them. 3 The Court is not convinced.
a. Evidence in the Record
The Court has been presented with relatively direct as well as some indirect evidence
regarding the creation of records about plaintiffs. The more direct form of evidence is certain
information about the Internet searches actually performed by Ms. McDonald. OIG and OPR, as
part of their investigation into the activity in question, obtained from Ms. McDonald's computer
the "search history" of Internet searches that she conducted on 2006 Honors Program applicants.
See Def.'s Supplemental Mem. [Docket Entry 182] at 11. This search history, relevant portions
of which were submitted to the Court, included searches on two of the three plaintiffs — Mr.
Faiella and Mr. Herber — but not on Mr. Saul. See Def.'s Supplemental Mem. at 11; see id. Ex.
4.
The Department argues that, since OIG and OPR were able to retrieve evidence of
Internet searches conducted on many other Honors Program applicants but not on Mr. Saul, the
3
Even if plaintiffs received such an inference, thereby establishing that the Department
maintained inappropriate records about them, they would still, of course, need to establish the
other elements of a Privacy Act claim, such as that the violation was willful. Because the Court
decides that plaintiffs cannot establish that inappropriate records were created about them, the
Court does not reach the other elements required for a Privacy Act claim.
15
evidence establishes that Ms. McDonald did not conduct searches on Mr. Saul. See Def.'s
Supplemental Mem. at 12-13. Plaintiffs' counsel disputes that the evidence gathered from Ms.
McDonald's computer shows Ms. McDonald did not search for Mr. Saul's name. Plaintiffs'
counsel argues that the search of Ms. McDonald's computer may not have been "comprehensive"
or sufficiently accurate and notes that Justice Department officials are encouraged to work from
home computers, which have not been examined. See Pls.' Supplemental Mem. [Docket Entry
183] at 9-13.
The Court has therefore been presented with convincing evidence that Ms. McDonald
performed Internet searches on two of the three plaintiffs. This evidence does not reveal whether
Ms. McDonald created print-outs or annotations regarding these two plaintiffs, as she did about
some applicants. With respect to the third plaintiff, Mr. Saul, it is possible that Ms. McDonald
performed a search that was not found in the examination of her Internet history. Nonetheless,
the fact that Ms. McDonald's search history contained searches on many other applicants but not
on Mr. Saul is strong evidence weighing against his claim that Ms. McDonald found
inappropriate information about him and committed such information to a record. And plaintiffs
have presented no affirmative evidence that an Internet search was performed on Mr. Saul.
The Court has also been presented with indirect evidence regarding the creation of
records about plaintiffs. There is information available on the Internet about all three plaintiffs
that may have been relevant to Ms. McDonald's searches — that is, information reflecting their
"liberal political or ideological affiliations." See Pls.' Statement of Material Facts as to Which
There Is No Genuine Issue [Docket Entry 154-2] at 3-5; Pls.' Supplemental Mem. Exs. 2 and 3.
Moreover, the Court has been presented with the applications that each of the three plaintiffs
submitted to DOJ. See Def.'s SJ Mem. Exs. E, F, G. With respect to Mr. Saul, the Court has
16
also been presented with internal documents from the Department of Justice indicating that he
was originally accepted for an interview with DOJ's Environmental and Natural Resources
Division but was ultimately instead scheduled for an interview with the Civil Division,
apparently due to the intervention of the Screening Committee. See Pls.' Mem. in Opp'n to Def.'s
Cross-Mot. for Summ. J., in Further Supp. of Pls.' Mot. for Summ. J., and in Supp. of Their Mot.
for Imposition of Spoliation Sanctions [Docket Entry 161] ("Pls.' Opp'n Mem.") Ex. 2. Since the
Screening Committee generally only acted by preventing certain applicants from receiving an
interview with DOJ, the treatment of Mr. Saul was apparently quite unusual.
The parties have each emphasized particular facts reflected in this indirect evidence.
DOJ suggests that plaintiffs may have been deselected by the Screening Committee on the basis
of information on the face of their applications, rather than information found on the Internet and
added to their applications. The members of the Screening Committee apparently relied on both
ideological and academic considerations in deciding whom to deselect from interviews. See
OIG/OPR Report at 71-84. DOJ argues that information relevant to these factors was apparent
on the face of each of the three plaintiffs' applications. The Department notes that one plaintiff,
Mr. Herber, appeared to have been in the bottom half of his law school class and stated in his
application that he had previously worked for two environmental organizations that the
Screening Committee could have perceived as "liberal." See Def.'s SJ Mem. at 14-16. The
application of another plaintiff, Mr. Faiella, contained multiple typographical errors. See id. at
15. The third plaintiff, Mr. Saul, stated in his application that he had previously worked for an
environmental organization that could have been perceived as "liberal." See id. at 16; see also
Def.'s Reply Mem. in Supp. of its Cross-mot. for Summ. J. and Mem. in Opp'n to Pls.' Mot. for
Imposition of Spoliation Sanctions [Docket Entry 168] ("Def.'s Reply Mem.") at 5-8. Plaintiffs,
17
in response, maintain that Mr. Herber had "manifestly strong overall credentials," that the
typographical errors on Mr. Faiella's application "actually are minimal," and that the jobs
indicated on Mr. Herber's and Mr. Saul's resumes were "merely summer employment." Pls.'
Opp'n Mem. at 12-14.
Plaintiffs, on the other hand, stress that "there was considerable information reflecting
their 'liberal political or ideological affiliations' . . . that was readily available to Ms. McDonald
on the Internet." Pls.' Mem. in Supp. of their Mot. for Summ. J. [Docket Entry 154-1] ("Pls.' SJ
Mem.") at 8 n.12. Plaintiffs maintain that this information "transcended what was contained in
their respective applications" and "conveyed much information about their political/ideological
affiliations and orientations." Pls.' Opp'n Mem. at 16 n.29. Plaintiffs emphasize the relevance of
some of the information available on the Internet, such as statements by Mr. Saul in an
environmental advocacy newsletter. Pls.' Supplemental Mem. at 13 n.19. Plaintiffs also argue
that the fact that the Screening Committee deselected Mr. Saul for an interview with one division
but offered him an interview with another suggests that it "was acting on the basis of exceptional
information." Id. at 13.
Finally, the Court has been presented with portions of depositions from various former
Justice Department officials. These depositions include testimony from Ms. McDonald and Mr.
Elston, but not Mr. Fridman. The Justice Department emphasizes testimony from Ms.
McDonald indicating that she made notations regarding information obtained from the Internet
on only a "subset" of applications and that "it was not common for [her] to print anything out and
attach it to an application." Def.'s SJ Mem. at 14; see McDonald Tr. at 197:11-12. 4 The
4
Some portions of Ms. McDonald's deposition testimony cited by the Court were submitted as
Exhibit B to DOJ's summary judgment motion and other cited portions were submitted as
18
Department also notes that Ms. McDonald did not remember the three plaintiffs by name and
that plaintiffs' counsel did not take Ms. McDonald up on her repeated offers to have her memory
refreshed by the plaintiffs' applications. Def.'s SJ Mem. at 14 n.5; see McDonald Tr. at 181:8-
12; see also Def.'s Reply Mem. at 3-4. Additionally, the Department notes testimony from Ms.
McDonald and Mr. Elston that the majority of Ms. McDonald's deselection recommendations
concerned academic credentials or errors in the applications themselves. Def.'s Reply Mem. at
5-6; see McDonald Tr. at 159:7-10, 289:18-290:1; Elston Tr. at 67:16-19. Plaintiffs emphasize
testimony from Ms. McDonald indicating that Mr. Elston said, in reference to the destruction of
the Screening Committee's files, "at least that's one thing I did right." Pls.' SJ Mem. at 28; see
McDonald Tr. at 261:19-262:2.
b. Spoliation
The most direct evidence of whether Ms. McDonald created inappropriate records about
the plaintiffs would, of course, be the records themselves. The Screening Committee used paper
copies of the applications in its review. OIG/OPR Report at 68. These files, however, were
destroyed shortly after the Screening Committee completed its review of Honors Program
applications, prior to the initiation of the OIG/OPR investigation and prior to the filing of the
current suit. See id. at 68-69. According to the OIG/OPR report, Mr. Elston gave the Screening
Committee's files to his staff assistant after completing his review, and the staff assistant placed
the files in a "burn box" for destruction shortly thereafter. Id. at 68-69, 81. Mr. Elston testified
that his usual practice was to have his assistant destroy personnel-related documents when he
was done using them. See Elston Tr. at 137:4-138:5.
Exhibit 1 to plaintiffs' summary judgment motion. The cited portion of Mr. Elston's deposition
testimony was submitted as Exhibit C to DOJ's summary judgment motion.
19
Plaintiffs maintain that the destruction of the Screening Committee materials violated the
Federal Records Act. Accordingly, plaintiffs have moved for spoliation sanctions against the
Department and seek an inference that Ms. McDonald created records containing First
Amendment information about them.
1. Legal Framework and DOJ Action
The D.C. Circuit "has recognized the negative evidentiary inference arising from
spoliation." Talavera v. Shah, 638 F.3d 303, 311 (D.C. Cir 2011) (citing Webb v. D.C., 146 F.3d
964 (D.C. Cir. 1998)). This inference is an "evidentiary presumption that the destroyed
documents contained favorable evidence for the party prejudiced by their destruction." Talavera,
638 F.3d at 311. More specifically, "violation of a regulation requiring document preservation
can support an inference of spoliation." Id. (citing cases). "[T]he obligation to preserve records
attaches as long as the party seeking the inference is 'a member of the general class of persons
that the regulatory agency sought to protect in promulgating the rule.'" Id. at 311-12 (quoting
Byrnie v. Town of Cromwell, 243 F.3d 93, 109 (2d Cir. 2001)). The Talavera court thus held
that a spoliation inference was appropriate when a U.S. Agency for International Development
employee destroyed notes regarding a job interview in violation of both an Office of Personnel
Management regulation requiring him to keep the notes for two years and an Equal Employment
Opportunity Commission regulation requiring him to keep the notes for one year. Talavera, 638
F.3d at 312.
Here, plaintiffs contend that a spoliation inference is appropriate because the destruction
of the Screening Committee's records violated the Federal Records Act, 44 U.S.C. § 2901 et
20
seq. 5 "The Federal Records Act is a collection of statutes governing the creation, management,
and disposal of records by federal agencies." Pub. Citizen v. Carlin, 184 F.3d 900, 902 (D.C.
Cir. 1999). The FRA mandates that "[t]he head of each Federal agency shall make and preserve
records containing adequate and proper documentation of the organization, functions, policies,
decisions, procedures, and essential transactions of the agency and designed to furnish the
information necessary to protect the legal and financial rights of the Government and of persons
directly affected by the agency's activities." 44 U.S.C. § 3101. Each agency head "shall
establish and maintain an active, continuing program for the economical and efficient
management of the records of the agency," id. § 3102, and "shall establish safeguards against the
removal or loss of records he determines to be necessary and required by regulations of the
Archivist [of the United States]," id. § 3105. The Act defines records as "all . . . documentary
materials, regardless of physical form or characteristics, made or received by an agency of the
United States Government under Federal law or in connection with the transaction of public
business and preserved or appropriate for preservation by that agency or its legitimate successor
as evidence of the organization, functions, policies, decisions, procedures, operations, or other
activities of the Government or because of the informational value of data in them." Id. § 3301;
see Armstrong v. Bush, 1 F.3d 1274, 1283 (D.C. Cir. 1993) ("To qualify as a record under the
FRA, a document must satisfy a two-pronged test. It must be (1) 'made or received by an
agency' . . . and (2) 'preserved or appropriate for preservation by that agency' . . . .").
Furthermore, the FRA requires the Archivist of the United States to "provide guidance
and assistance to Federal agencies with respect to ensuring adequate and proper documentation
5
As noted above, the Court previously dismissed plaintiffs' claim for declaratory relief under the
Federal Records Act (Count XV of the second amended complaint). See Gerlich, 659 F. Supp.
2d at 19 & n.19.
21
of the policies and transactions of the Federal Government and ensuring proper records
disposition," 44 U.S.C. § 2904(a), and requires the Administrator of General Services to "provide
guidance and assistance to Federal agencies to ensure economical and effective records
management by such agencies," id. § 2904(b). To that end, the Archivist and the Administrator
are required to, among other things, "promulgate standards, procedures, and guidelines with
respect to records management" and "conduct inspections or surveys of the records and the
records management programs and practices within and between Federal agencies." Id. §
2904(c). In accordance with this duty, the National Archives and Records Administration
("NARA") has promulgated a regulation in which "[s]everal key terms" from the FRA are
"further explained." 36 C.F.R. § 1222.10(b). NARA has defined "appropriate for preservation"
to mean "documentary materials made or received which, in the judgment of the agency, should
be filed, stored, or otherwise systematically maintained by an agency because of the evidence of
agency activities or information they contain, even if the materials are not covered by its current
filing or maintenance procedures." Id. An additional NARA regulation further explains that
"agencies must distinguish between records and nonrecord materials by applying the definition
of records" contained in the statute and regulations. Id. § 1222.12(a). Finally, this NARA
regulation states that "[w]orking files, such as preliminary drafts and rough notes, and other
similar materials, are records that must be maintained to ensure adequate and proper
documentation" if "[t]hey contain unique information, such as substantive annotations or
comments[,] that adds to a proper understanding of the agency's formulation and execution of
basic policies, decisions, actions or responsibilities." Id. § 1222.12(c).
In 1981, the Department created a records disposition schedule for Honors Program and
SLIP applications. See Def.'s Supplemental Mem. at 4. This schedule, which was approved by
22
the predecessor to NARA, calls for "application materials," including "a four page DOJ
application and law school transcript" and other "[o]ptional materials" (such as resumes), to be
preserved for one year. Id. Ex. 1. The schedule applied to materials from applicants who did not
accept employment under the program; the materials from those who did accept employment
were incorporated into the employees' official personnel file. Id. In 2009 (after the events at
issue in this case took place), the Department created a new disposition schedule for Honors
Program and SLIP materials. Id. at 5. This schedule, which was approved by NARA, calls for
the fifteen-year preservation of information submitted by the applicant (such as name, address,
program to which the applicant is applying, experience, and academic record) as well as certain
information about the applicant's movement through the Honors Program application process.
Id. Ex. 2. Specifically, the disposition schedule calls for the preservation of information about
"DOJ components to which the candidate applied, interviews by components, selection as finalist
by component, offer extended by component, [and] acceptance or declination." Id.
Plaintiffs contend that the Department violated the Federal Records Act and the
accompanying regulatory provisions when it destroyed the materials used by the Screening
Committee. They argue that the Screening Committee's files "became a set of 'federal records'
under the Federal Records Act during the Screening Committee's particular deselection process
in 2006" because the files contained "'unique information, such as substantive annotations or
comments' . . . required to be maintained to 'ensure adequate and proper documentation' of the
Screening Committee's decision-making process." Pls.' Supplemental Mem. at 6 (quoting 36
C.F.R. § 1222.12(e)). Plaintiffs object to the characterization of these materials as "random
notes" or "scraps of paper." Pls.' Supplemental Mem. at 5-6. They also contend that the fact that
the Justice Department's disposition schedule now requires the maintenance of Honors Program
23
records for fifteen years confirms the "importance of preserving Honors Program records in
particular." Id. at 7. Finally, plaintiffs assert that they are members of the classes sought to be
protected by the FRA, citing the statute's requirement that agency heads shall preserve records
"to furnish the information necessary to protect the legal and financial rights of the Government
and of persons directly affected by the agency's activities." Id. at 8 (quoting 44 U.S.C. § 3101).
2. Analysis of Spoliation Claim
The problem with plaintiffs' spoliation argument is that, in the Court's view, the Federal
Records Act does not directly require specific documents to be preserved, but rather requires
agencies to decide which materials are or are not "appropriate for preservation." A decision by
an agency about what records ought to be preserved might itself be subject to challenge as
inconsistent with the FRA. Furthermore, since the FRA requires agencies to make records
management decisions, the absence of any decision-making by an agency might warrant a
spoliation inference. But when, as here, an agency develops a records disposition policy under
the FRA and officials take action in compliance with that decision, a spoliation inference is, in
the Court's view, not available after the fact on the basis of arguments that the agency previously
made the wrong decision under the FRA or that the FRA itself directly governs the documents at
issue. The Justice Department made such a decision about which Honors Program materials to
preserve, and that decision was that internal deliberations about candidates would not be
preserved. The destruction of the Screening Committee's working files was consistent with that
policy. Given that backdrop, plaintiffs are not entitled to a spoliation inference.
There is some authority for the proposition that an interested person can, under certain
circumstances, challenge an agency's decision under the Federal Records Act as to what
materials should be preserved. In American Friends Service Committee v. Webster, 485 F.
24
Supp. 222, 226, 231 (D.D.C. 1980), individuals who were "subjects of FBI investigations or
alleged victims of FBI activities," among other plaintiffs, sought access to several years of FBI
field office files. For two of the years in question, the agency's records disposition schedules
indicated that closed field office files should generally be destroyed, while a records disposition
schedule for a third year indicated that files should be preserved or destroyed at the discretion of
"non-professional FBI personnel" on the basis of five general criteria. Id. at 229 n.13, 231. The
D.C. Circuit held on appeal that "private parties whose rights may have been affected by
government actions" had standing to challenge the FBI's records disposition policies. American
Friends, 720 F.2d 29, 57 (D.C. Cir. 1983). That court concluded that the disposition schedule
with the five criteria was not arbitrary and capricious because it "provide[s] sensible guidance to
agency personnel," but nonetheless concluded that all three schedules were deficient because the
agency, among other things, failed to explain how it was taking into account "the legal rights of
persons directly affected by the FBI's activities." Id. at 68. Similarly, in Armstrong v. Bush,
plaintiffs challenged the National Security Council's decision not to preserve any of its internal
e-mail communications, including "lengthy substantive—even classified—'notes' that, in content,
are often indistinguishable from letters or memoranda." 1 F.3d at 1279. The court concluded
that the FRA "surely cannot be read to allow the agency by fiat to declare 'inappropriate for
preservation' an entire set of substantive e-mail documents generated by two administrations
over a seven-year period." Id. at 1283.
If a Department employee had destroyed agency materials in violation of a records
disposition schedule, that destruction would likely warrant a spoliation inference. Although the
Talavera decision dealt with destruction of agency materials in violation of formal regulations,
the court relied on the decision in Byrnie v. Town of Cromwell, which the court characterized as
25
holding "that where there was a written policy requiring document preservation and documents
had been destroyed in violation of that policy, the obligation to preserve records attaches as long
as the party seeking the inference is 'a member of the general class of persons that the regulatory
agency sought to protect in promulgating the rule.'" 638 F.3d at 311 (quoting Byrnie, 243 F.3d at
109). The decisions in American Friends and Armstrong make clear that "private parties whose
rights may have been affected by government actions" are within the statute's "zone of interest."
Since the Screening Committee's actions clearly affected the plaintiffs, if the materials used by
the Committee had been subject to preservation by a records disposition schedule, then
destruction of materials in violation of that policy would likely constitute spoliation.
The situation might also be different if the Attorney General had simply ignored his
duties under the Federal Records Act to decide which Honors Program materials are "appropriate
for preservation." Under such circumstances, the Department of Justice would have violated the
legal duty placed on it by the FRA to decide which materials should be preserved. A spoliation
inference might therefore be appropriate.
In this case, however, the Justice Department, in accordance with the FRA, made a
records disposition decision with respect to Honors Program materials; the materials sought by
plaintiffs were simply outside the bounds of the applicable records dispositions schedule.
Plaintiffs do not argue otherwise. Rather, they contend that the FRA and its accompanying
regulations themselves provide a directive equivalent to the regulations in Talavera or Byrnie.
The Court finds, however, that the FRA requires agency heads to make decisions about
what records to preserve, but does not itself directly classify specific materials as records
requiring preservation. The FRA consistently indicates that "the head of each Federal agency"
shall take action, including making and preserving "adequate and proper documentation" of
26
agency action and developing a records management program. See 44 U.S.C. §§ 3101, 3102,
3105. The Act does not define "adequate and proper documentation" or prescribe with any detail
what the requirements are for agencies or agency employees. Similarly, while the Act offers a
definition of "records" that could be extremely broad — "all . . . documentary materials
regardless of physical form or characteristics" — it limits that definition to materials "preserved
or appropriate for preservation." Id. § 3301; see Armstrong, 1 F.3d at 1283. The term
"appropriate for preservation" is inherently subjective, and the NARA regulation defining that
term makes clear that the determination is subject to "the judgment of the agency." 36 CFR §
1222.10(b). Likewise, the NARA regulations direct agencies to "distinguish between records
and nonrecord materials." Id. § 1222.12(a). The D.C. Circuit in Armstrong accordingly
emphasized that "the agency undoubtedly does have some discretion to decide if a particular
document satisfies the statutory definition of a record." 1 F.3d at 1283.
It is true that NARA regulations also, in one instance, indicate more specifically that
"[w]orking files, such as preliminary drafts and rough notes" must be maintained by agencies —
provided that "[t]hey contain unique information, such as substantive annotations or comments[,]
that adds to a proper understanding of the agency's formulation and execution of basic policies,
decisions, actions or responsibilities." Id. § 1222.12(c). But it cannot be the case that all
"working files," no matter how preliminary or how minor, are appropriate for preservation. This
regulation can only be interpreted as a directive to agency heads that these type of materials
would be "appropriate for preservation" if they add to a "proper understanding" of agency
decision-making. One can argue about whether or not DOJ made the right judgment regarding
whether preserving informal deliberation records would contribute to a "proper understanding"
27
of how Honors Program decisions were made. But it is nonetheless true that this regulation does
not directly apply to the materials in question.
In fairness to plaintiffs, it should be noted that no one at the Department of Justice
appears to have given any thought to whether the materials used by the Screening Committee
were appropriate for preservation. This thoughtlessness is troublesome, but DOJ nonetheless
did, in accordance with its duty under the FRA, create a records disposition schedule that chose
to preserve certain information regarding Honors Program hiring — and, by implication, to
disregard other information. The records disposition schedule that DOJ created and NARA's
predecessor approved did not preserve any of the Department's internal deliberations about
whom to offer interviews or to hire. Plaintiffs seek a spoliation inference about materials in this
category. There is therefore every reason to believe that DOJ chose not to preserve the type of
materials about which plaintiffs seek an inference.
Plaintiffs are not, as in American Friends or Armstrong, seeking to challenge an agency
head's decision about what records should be preserved. Rather, they argue that the FRA and its
accompanying regulations address the materials in question. But the FRA addresses general
decisions made by agencies, not specific materials. Furthermore, as the Department now
accurately points out, if a spoliation inference could be generated directly from the FRA, the
court's analysis of the regulations in Talavera would have been superfluous, since the FRA,
which applies to all federal agencies, certainly applied to the agency there. See Def.'s
Supplemental Mem. at 10. Hence, this Court finds that where, as in the present case, an agency
has made a policy decision about the disposition of certain materials under the FRA, action taken
in compliance with that policy does not warrant a spoliation inference.
28
In sum, the members of the Screening Committee, whether knowingly and intentionally
or not, took action in accordance with Justice Department policy regarding Honors Program
records disposition. If DOJ had not performed its duty under the FRA to make a records
management decision, that would be a different situation. If plaintiffs sought to challenge the
Department's general records disposition decision, that would also be different. And if DOJ
officials had violated Department policy, that too would be a different case. But the Court
cannot, after the fact, infer spoliation from the destruction of documents in accordance with
Department policy. Plaintiffs' motion for imposition of spoliation sanctions will therefore be
denied and the summary judgment motions will be considered without a spoliation inference.
V. Summary Judgment Standard
Summary judgment is appropriate when the pleadings and the evidence demonstrate that
"there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the initial
responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its
motion by identifying those portions of "the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made
for purposes of motion only), admissions, interrogatory answers, or other materials," which it
believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c)(1);
see Celotex, 477 U.S. at 323.
The satisfaction of the moving party's summary judgment burden is influenced by the
party bearing the burden of proof at trial. 10A Charles Alan Wright, Arthur R. Miller & Mary
Kay Kane, Federal Practice And Procedure § 2727 (3d ed. 1998). "If the moving party will bear
29
the burden of persuasion at trial, that party must support its motion with credible evidence . . .
that would entitle it to a directed verdict if not controverted at trial." Celotex, 477 U.S. at 331.
On the other hand, if the burden of persuasion at trial would be on the non-moving party, "the
moving party may demonstrate to the Court that the nonmoving party's evidence is insufficient to
establish an essential element of the nonmoving party's claim. If the nonmoving party cannot
muster sufficient evidence to make out its claim, a trial would be useless and the moving party is
entitled to summary judgment as a matter of law." Id. (citations omitted); see also id. at 328
(White, J., concurring). "Thus, where the nonmoving party shoulders the burden of proof at trial,
the movant's burden is met by a sufficient 'showing . . . that there is an absence of evidence to
support the nonmoving party's case.'" Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1032 (D.C.
Cir. 1988) (quoting Celotex, 477 U.S. at 325) (alteration in original).
In determining whether there exists a genuine dispute of material fact sufficient to
preclude summary judgment, the court must regard the non-movant's statements as true and
accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than
the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. Moreover,
"if the evidence is merely colorable, or is not significantly probative, summary judgment may be
granted." Anderson, 477 U.S. at 249-50 (citations omitted). Summary judgment, then, is
appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for
the [non-movant]." Id. at 252.
VI. Application of Summary Judgment Standard
The Court must apply the principles of summary judgment to the evidence in the context
of plaintiffs' claims. Under the Privacy Act, the plaintiff bears the burden of proving the
30
elements of the claim, except when plaintiff seeks disclosure of records. Reuber v. United
States, 829 F.2d 133, 141 & n.58 (D.C. Cir. 1987); Mervin v. FTC, 591 F.2d 821, 827 (D.C. Cir.
1978); see also Maydak, 630 F.3d at 178. Hence, with respect to plaintiffs' motion for summary
judgment, plaintiffs (as moving parties bearing the burden of proof) must support their motion
with credible evidence that would entitle them to a directed verdict if not controverted at trial.
Celotex, 477 U.S. at 331. With respect to the Department's motion, the Department (as moving
party not bearing the burden of proof) meets its burden if it makes a sufficient showing that there
is an absence of evidence to support plaintiffs' case. Frito-Lay, 863 F.2d at 1032.
The issue, then, is whether there is sufficient evidence that the Department created
records containing First Amendment information about these three plaintiffs. Without evidence
of the actual records themselves, and without a spoliation inference, the relevant evidence is the
following: (1) the history of specific Internet searches performed by Ms. McDonald; (2)
information on the Internet about the three plaintiffs that may have been relevant to Ms.
McDonald's searches; (3) each plaintiff's application to the Honors Program; (4) internal DOJ
documents regarding Mr. Saul's interview; and (5) testimony from Ms. McDonald and Mr.
Elston.
As noted previously, the Court has been presented with evidence that Ms. McDonald
performed Internet searches on two plaintiffs. But these facts do not necessarily show that Ms.
McDonald created inappropriate records about these plaintiffs, since she testified (and plaintiffs
have not disputed) that she only annotated files or made print-outs for "some" candidates on
whom she performed searches. Since neither Ms. McDonald nor Mr. Elston could remember the
plaintiffs specifically, all that remains in the record is plaintiffs' applications to DOJ, the
arguably relevant information on the Internet, and the unusual treatment of Mr. Saul.
31
The Department has presented plausible arguments about why the Screening Committee
could have rejected each of the three applications on its face — without reference to any Internet
information — for reasons ranging from typographical errors to unimpressive academic
credentials to "liberal" affiliations reflected on plaintiffs' resumes. Plaintiffs have also presented
information available on the Internet that could plausibly have influenced the Screening
Committee after being added to the applications by Ms. McDonald. On the other hand, although
the treatment of Mr. Saul was unusual, it is difficult to see how the Screening Committee's
choice to switch his interview from an environmental division to the Civil Division suggests that
the Committee relied on information from the Internet, especially given that Mr. Saul's
application itself contained environmental affiliations and no evidence exists suggesting that an
Internet search was even performed on Mr. Saul.
Regarding plaintiffs' motion for summary judgment, there is certainly not enough
evidence to entitle plaintiffs to a directed verdict if the evidence were uncontroverted at trial.
Since the Department has made plausible arguments that each of the applications could have
been rejected on its face and there is no evidence that Ms. McDonald made annotations or print-
outs about these three plaintiffs, a reasonable jury could conclude that plaintiffs have not met
their burden of proof. Plaintiffs' motion for summary judgment must therefore be denied.
The call is closer regarding the Department's motion for summary judgment. Still, the
Department has made a sufficient showing of the absence of evidence supporting plaintiffs' case.
Plaintiffs' applications alone could plausibly have caused the Screening Committee to deselect
them, as could the information on the Internet about the plaintiffs. Given conflicting, plausible
accounts — as to which neither side relies on evidence, as opposed to conjecture — the plaintiff,
as the party with the burden of proof, must produce further probative evidence in support of its
32
claims. Without the Screening Committee's files, it is difficult to see what further information
could shed light on the matter, and plaintiffs have not indicated that they intend to offer any
additional probative evidence. 6 We will simply never know whether the Screening Committee
relied on the plaintiffs' applications or on information added to their files as a result of Internet
searches. The plaintiffs have therefore failed to offer evidence on which a finder of fact could
reasonably hold the Department liable. This is not a situation of a conflict (or genuine dispute)
as to the facts, but rather one of a paucity of proof by plaintiffs on their Privacy Act claims, on
which they have the burden of proof and hence the burden of producing adequate evidence now.
In the absence of sufficient probative evidence, the Department's motion for summary judgment
must be granted.
VII. Conclusion
This case reflects extremely troubling behavior from high-ranking Department of Justice
officials. This Court, and others, have often condemned that conduct. Even so, plaintiffs have
not met their burden to prevail on the Privacy Act claims presented in this case. An adverse
inference from spoliation of evidence is not warranted here, and in the absence of additional
probative evidence, plaintiffs cannot prove that they themselves were injured as a result of
Privacy Act violations. Accordingly, for the reasons explained above, plaintiffs' motions for
spoliation sanctions and for summary judgment will be denied, and the Department of Justice's
motions for leave to file an amended answer and for summary judgment will be granted. A
separate order has been issued on this date.
6
At the hearing on October 14, 2011, plaintiffs indicated that they would seek a bench trial
rather than a jury trial if their motion for summary judgment was denied. Plaintiffs have not
indicated that they would introduce any further evidence in such a proceeding beyond what is
presently before the Court.
33
/s/
JOHN D. BATES
United States District Judge
Dated: December 15, 2011
34