Gerlich v. United States Department of Justice
404 U.S. App. D.C. 256
| D.C. Cir. | 2013Background
- Three applicants for the DOJ Honors Program in 2006 allege they were deselected for interviews due to political affiliations.
- The DOJ Inspector General/Office of Professional Responsibility reported in 2008 that the Honors process was politicized and involved written annotations and internet printouts.
- In 2006 two political appointees and one career AUSA formed the Honors Screening Committee; they used ideological factors in deselection.
- Senior officials were aware of irregularities and the appearance of politicized screening but did not preserve related documents.
- The district court granted summary judgment on Privacy Act claims and denied class certification; records were later destroyed, prompting spoliation concerns.
- On appeal, the court reverses as to e5/e7 Privacy Act claims, remanding to consider a negative spoliation inference.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether records were within a Privacy Act system of records. | Faiella argues records were functionally within a system of records. | DOJ contends records were not part of a system of records. | Not reached on remand; court had previously held no functional incorporation. |
| Whether destruction of records justifies a spoliation adverse inference under Privacy Act claims. | Destruction created a negative inference that records existed and affected deselections. | Destruction was permissible under disposition schedules and not per se sanctionable. | Appellants show destruction triggered a negative spoliation inference eligible for consideration on remand. |
| Whether summary judgment on Faiella/Herber PA claims was appropriate given destruction of records. | Destroyed records could have contained information linking records to adverse decisions. | Absent specific destroyed records about plaintiffs, no liability shown. | Reversed as to Faiella/Herber; remand for consideration of negative spoliation inference. |
| Whether the denial of class certification was proper. | Late filing under Local Rule 23.1(b) should be excused due to equitable factors. | Late filing and lack of excusable neglect support denial. | Affirmed denial of class certification. |
Key Cases Cited
- Maydak v. United States, 363 F.3d 512 (D.C. Cir. 2004) (explains system-of-records distinctions under Privacy Act)
- Albright v. United States, 631 F.2d 915 (D.C. Cir. 1980) (First Amendment records and Privacy Act obligations beyond system-of-records)
- Kronisch v. United States, 150 F.3d 112 (2d Cir. 1998) (duty to preserve evidence when litigation reasonably foreseeable)
- Talavera v. Shah, 638 F.3d 303 (D.C. Cir. 2011) (negative-spoliation-inference warranted for destruction of records in context of discovery/litigation)
- Ritchie v. United States, 451 F.3d 1019 (9th Cir. 2006) (burden-shifting when destroyed evidence may be relevant to issues in dispute)
- Beaven v. U.S. Dep’t of Justice, 622 F.3d 540 (6th Cir. 2010) (duty to preserve evidence arising from foreseeability of litigation)
- Jicarilla Apache Nation v. U.S. Dep’t of Interior, 613 F.3d 1112 (D.C. Cir. 2010) (reaffirmation of procedural posture and preservation considerations)