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Sean M. Gerlich, et al v. United States Department of Justice

December 15, 2011

SEAN M. GERLICH, ET AL.,
PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF JUSTICE, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

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 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

a. Allegations of Misconduct in the Honors Program and Summer Law Intern Program Hiring Process*fn1

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.

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 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 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 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

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 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.

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 ...


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