Gerlich v. United States Department of Justice

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

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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

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 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.

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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.

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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