Friday, March 29, 2013 3:10 pm
Appeals court revives lawsuit against Justice Dept
By PETE YOSTAssociated Press
The department destroyed files on the lawyers' applications to be hired under the department's Honors Program. Government lawyers said they did so for lack of storage space.
However, the appeals court ruled that, while the Privacy Act bars agencies from keeping records about an individual's exercise of free speech, senior Justice Department officials should have preserved the documents because an investigation and lawsuits were foreseeable.
The applicants argued that a lower court judge ignored relevant evidence in dismissing their suit, including the fact that a screening committee comprised of two Bush administration political appointees conducted internet searches about applicants' political leanings.
Although they revived the lawsuit, the three-member panel of judges from the U.S. Circuit Court of Appeals for the District of Columbia refused to make the case a class action on behalf of all applicants who might have been denied interviews because of liberal political affiliations.
In her opinion for the appeals court, Circuit Judge Judith Rogers said the Justice Department had a duty to preserve the records. The fact that it did not, she concluded, supports the inference the department engaged in "spoliation," which means intentional or negligent withholding of evidence relevant to a legal proceeding.
The appellate court explicitly ordered the District Court, when it tries the case, to adopt that negative inference. The higher court said that would permit a reasonable trial court and jury to find that the two applicants were harmed by creation and use of the destroyed records.
Rogers is an appointee of President Bill Clinton. The other two appeals judges in the case are chief judge Merrick Garland, a Clinton appointee, and Thomas Griffith, an appointee of George W. Bush.
The Attorney General Honors Program is the largest and most prestigious federal entry-level attorney hiring program. Selections are made based on a demonstrated commitment to government service, academic achievement, leadership, law review experience, legal aid and clinical experience, past employment, and extracurricular activities.
"Unrebutted evidence demonstrates that department officials in control of the printed, annotated applications were on notice that department investigation and future litigation concerning the 2006 Honors Program improprieties were reasonably foreseeable," Rogers wrote. "Nevertheless, they intentionally destroyed these records."
Rogers said the director of the recruitment management office received complaints from high-ranking department officials and other employees about the handling of the 2006 attorney hiring process and were aware of the perception that it had been politicized.
Rogers said one of the Bush administration political appointees on the screening committee, Esther McDonald, conducted Internet searches to learn the ideological affiliations of applicants. A search of McDonald's computer hard drive revealed she had found that one of the attorneys, who later brought this lawsuit, had opposed the presence of military recruiters on Cornell University's campus and that another had been elected to a seat on the City Council of La Crosse, Wis., as a member of the Green Party. That information was not contained in the applications submitted by the attorneys.
Widespread criticism of the management of the Honors Program arose inside the Justice Department after the screening committee "deselected" an unusually high number of applicants who had already been invited to travel to Washington for interviews.
A Justice Department inspector general's report later found that the screening committee deselected 40 percent of highly qualified applicants with liberal affiliations and only 6 percent of highly qualified applicants with conservative affiliations.
"This decision should stand as a potent deterrent to any such high-level corruption for years to come," said attorney Dan Metcalfe, a former longtime freedom of information official at the Justice Department who represented the two applicants.