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DOJ Loses in Negative Spoliation Inference Appeal

By Robyn Hagan Cain on April 01, 2013 | Last updated on March 21, 2019

Three rejected Department of Justice Honors Program applicants will get their day in court after all.

The Honors Program is a big deal. It is "the exclusive means by which the Department hires" entry-level attorneys, and it ultimately determines the composition of the Department's career attorneys. Three applicants to the program sued the Department, alleging that they never made it to the interview round because of their political affiliations.

Though the Privacy Act generally prohibits government agencies from maintaining records regarding an individual's exercise of his First Amendment rights, the three plaintiffs claim that senior Justice officials annotated their applications and Internet printouts with notes about their political affiliations.

A district court granted summary judgment for DOJ, but the D.C. Circuit Court of Appeals reinstated the appellants' claims on Friday, the Volokh Conspiracy reports.

In June 2008, the Department's Office of the Inspector General and Office of Professional Responsibility issued a report on its investigation concerning whether the political or ideological affiliations of applicants were improperly considered in the selection of candidates for the Honors Program and the Summer Law Intern Program from 2002 to 2006.

The OIG reported that two members of the 2006 Screening Committee for the Honors Program -- Michael Elston, Chief of Staff and Counselor to the Deputy Attorney General, and Esther McDonald, Counsel to the Associate Attorney General -- used ideological and political factors in deselecting "leftist" or "liberal" applicants for interviews. The third member, Daniel Fridman, was a career Assistant U.S. Attorney on detail to the Deputy Attorney General's Office. The OIG reported that Fridman refused to use such "improper considerations."

Despite contemporaneous concerns that the ideological deselection process was problematic, the OIG reported that the officials involved did not take steps to preserve documentation of how they made their decisions. Specifically, Elston permitted all of the annotated paper copies of the applications and internet printouts to be destroyed in early 2007.

The appellate court referred to the situation as "a dark chapter in the United States Department of Justice's history," and held that summary judgment was inappropriately granted. In light of the destruction of appellants' records, the court noted that a permissive spoliation inference was warranted because the senior Department officials had a duty to preserve the annotated applications and internet printouts given that Department investigation and future litigation were reasonably foreseeable.

The D.C. Circuit instructed the district court to construe the evidence in light of the negative spoliation inference on remand, which will permit a reasonable trier of fact to find that the appellants were harmed by creation and use of the destroyed records.

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