The U.S. Justice Department doesn't dispute that significant misconduct marred the review of candidates for a coveted slot in the department's Honors Program in 2006.
Department lawyers, however, want a federal appeals court to uphold the dismissal of a lawsuit that alleges senior DOJ officials improperly used candidates' political and ideological information as the basis of dismissal from the interview process. The suit in Washington's federal trial court flowed from an internal DOJ report in 2008 that criticized the politicization of DOJ hiring under Attorney General Alberto Gonzales.
DOJ on Friday told the U.S. Court of Appeals for the D.C. Circuit that the plaintiffs—three unsuccessful Honors Program candidates who were deselected for interviews—do not have evidence that DOJ officials ever created improper records about their personal lives. The Screening Committee had authority to destroy candidate records when DOJ officials no longer needed them, Daniel Tenny of the Civil Division appellate staff said in DOJ's submission in the appeals court.
The issue in the case, Tenny said, isn't the merits of the conduct of the screening committee. The intentional removal of a "liberal" candidate based on First Amendment activity, DOJ said, would have been improper. The plaintiffs must show that the screening committee created "irrelevant records" and that DOJ officials used that information to remove the candidate from the interview pool. DOJ lawyers argue in the brief that the plaintiffs can do neither such thing.
The Honors Program is the path by which DOJ hires law school graduates and law clerks who do not have prior legal experience. U.S. District Judge John Bates, who dismissed the suit, described the program as highly competitive--receiving more applications than positions available. (Bates' ruling is here.)
Daniel Metcalfe, the lawyer for the plaintiffs, argues in the appeal that DOJ had an obligation to preserve the records at issue—computer printouts of protected First Amendment activity. Metcalfe contends the plaintiffs are entitled to a "spoliation" sanction—the notion that DOJ improperly discarded records—to bolster the Privacy Act claims. Metcalfe's brief is here.
In July, Metcalfe said in court papers in the litigation that "a cabinet agency not only successfully corrupted a prestigious career attorney hiring process at its highest levels, it did so through statutorily prohibited conduct for which a deterrent remedy is provided by law."
Metcalfe, executive director of the Collaboration on Government Secrecy at American University’s Washington College of Law, said DOJ "then managed to insulate itself by callous destruction of the only direct evidence of what it had done and to exactly whom it had done it."
DOJ lawyers said in the government's brief that screening committee members had other reasons to deselect a particular candidate from an interview. Those "legitimate considerations," DOJ lawyers said, include typographical errors and grades.
DOJ lawyers said in their court brief that then-Attorney General Michael Mukasey offered every candidate who'd been deselected the opportunity to interview with the department in 2007.
The D.C. Circuit hasn't yet set an argument date in the case.