A federal appeals court today revived a privacy suit rooted in a "dark chapter" at the U.S. Justice Department in which top officials assessed politics and ideology to screen applicants vying for entry-level slots in the prestigious Honors Program.
In the suit in Washington's federal trial court, several applicants to the program alleged they were not selected for interviews in 2006 based on their political affiliation. An internal DOJ report in 2008 concluded that top officials improperly considered First Amendment-protected speech to eliminate candidates. The lawsuit, filed in 2008, relied on the publication of the internal investigation.
Those senior officials, the U.S. Court of Appeals for the D.C. Circuit said today, had an obligation to preserve Internet records about each candidate "given that Department investigation and future litigation were reasonably foreseeable." The records have since been destroyed.
Writing for the court, Judge Judith Rogers said a jury should be allowed to hear a claim of spoliation—that is, that two remaining plaintiffs, Matthew Faiella and Daniel Herber, were "harmed by creation and use of the destroyed records." The screening committee at the time comprised Michael Elston, chief of staff to the deputy attorney general, and Esther McDonald, counsel to the associate attorney general. The D.C. Circuit opinion is here.
"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, joined by Chief Judge Merrick Garland and Judge Thomas Griffith. "Nevertheless, they intentionally destroyed these records."
The plaintiffs' lawyer, Dan Metcalfe, executive director of the Collaboration on Government Secrecy at American University’s Washington College of Law, praised the D.C. Circuit ruling.
"At long last, plaintiffs in this case have been vindicated with a judicial recognition of both their Privacy Act rights and the fact that the Gonzales Justice Department improperly destroyed records as part of its 'egregious and notorious' Honors Program politicization scheme," Metcalfe said in an e-mail. "This decision should stand as a potent deterrent to any such high-level corruption for years to come."
A Justice Department spokesperson declined to comment this afternoon on the ruling.
U.S. District Judge John Bates said in his ruling in 2011 dismissing the suit that "this case arises from a dark chapter in the United States Department of Justice's history." Still, the judge concluded that the rejected Honors Program applicants "cannot prove that they themselves were injured as a result of the Privacy Act violations.”
Former Attorney General Alberto Gonzales said in a deposition that he was “disappointed” he did not stop the influence of politics and ideology in decisions about candidates for the Honors Program, the exclusive means by which DOJ hires law school graduates and clerks who lack legal experience.
“I, the attorney general, am ultimately responsible,” Gonzales said in the deposition, in 2010.