Gerlich v. United States Department of Justice
828 F. Supp. 2d 284
D.D.C.2011Background
- Plaintiffs are three remaining Privacy Act claimants against DOJ arising from 2006 Honors Program/SLIP hiring; earlier privacy and related claims against DOJ and officials were dismissed.
- Plaintiffs allege Ms. McDonald created records containing First Amendment information about them via Internet searches, which allegedly led to their deselection from interviews.
- The relevant Screening Committee records were destroyed in 2007; plaintiffs seek spoliation sanctions and an inference that records were created.
- DOJ sought leave to amend its answer to add a mitigation of damages defense based on a 2008 remedial interviewing offer; court granted leave.
- Court applied summary judgment standard and found insufficient evidence of created records or causal connection; denied spoliation sanctions and granted DOJ summary judgment; granted DOJ leave to amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Spoliation inference under FRA | Destruction violated FRA; inference should follow. | Destruction was in line with DOJ records disposition policy. | No spoliation inference; destruction per policy. |
| Leave to amend the answer | Amendment would prejudice plaintiffs; improper. | Remedial defense timely and non-prejudicial. | Granted leave to amend. |
| Privacy Act claims (e)(7) and (e)(5) elements | Records of First Amendment activity were created; causally harmed plaintiffs. | No evidence of records created about the plaintiffs; damagesæª proven. | Plaintiffs failed to prove creation of records and adverse effect; DOJ summary judgment warranted. |
| Sufficiency of evidence for liability | Evidence shows Internet-influenced deselections. | Applications themselves or uncontested facts could explain deselections; no probative records shown. | Judgment for DOJ; plaintiffs lacked probative evidence. |
Key Cases Cited
- Maydak v. United States, 363 F.3d 512 (D.C. Cir. 2004) (privacy act records must be properly maintained to prove liability; evidenced need not be incorporated into system of records)
- Albright v. United States, 631 F.2d 915 (D.C. Cir. 1980) (record creation and adverse effect required; intentional or willful conduct needed)
- Armstrong v. Bush, 1 F.3d 1279 (D.C. Cir. 1993) (agency discretion in determining what constitutes a record; FRA scope limited to preservation decisions)
- Talavera v. Shah, 638 F.3d 311 (D.C. Cir. 2011) (spoliation inference when regulatory preservation requirements violated by agency)
- American Friends Serv. Comm. v. Webster, 720 F.2d 29 (D.C. Cir. 1983) (private rights affected by agency record disposition policies may challenge FRA decisions)