Gerlich v. United States Department of Justice

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 13, 2012 Decided March 29, 2013
No. 09-5354
SEAN GERLICH, ET AL.,
APPELLANTS
v.
UNITED STATES DEPARTMENT OF JUSTICE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-01134)
Daniel J. Metcalfe argued the cause and filed the briefs for
appellants.
Daniel Tenny, Attorney, U.S. Department of Justice, argued
the cause for appellees. With him on the brief were Stuart F.
Delery, Acting Assistant Attorney General, Ronald C. Machen
Jr., U.S. Attorney, and Mark B. Stern and Michael S. Raab,
Attorneys. R. Craig Lawrence, Assistant U.S. Attorney, entered
an appearance.
Before: GARLAND, Chief Judge, ROGERS and GRIFFITH,
Circuit Judges.
Opinion for the Court by Circuit Judge ROGERS.
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ROGERS, Circuit Judge: “This case arises from a dark
chapter in the United States Department of Justice’s history.”
Gerlich, et al. v. U.S. Dep’t of Justice, 828 F. Supp. 2d 284,
286–87 (D.D.C. 2011). Appellants were three applicants for
attorney positions under the Honors Program in 2006 who
alleged that they were not selected for interviews because of
their political affiliations. “The Privacy Act generally prohibits
government agencies from maintaining records describing how
an individual exercises First Amendment Rights.” Id. at 287.
Appellants claimed that senior officials at the Department of
Justice nonetheless created such records in the form of
annotations to appellants’ applications and internet printouts
concerning their political affiliations. They contend that the
district court erred in dismissing some of their claims, granting
summary judgment on the remaining claims, and denying their
motion for class certification.
We hold that summary judgment was inappropriately
granted on appellants’ Privacy Act claims under 5 U.S.C.
§ 552a(e)(5) and (e)(7). In that regard, we conclude, in light of
the destruction of appellants’ records, that a permissive
spoliation inference was warranted because the senior
Department officials had a duty to preserve the annotated
applications and internet printouts given that Department
investigation and future litigation were reasonably foreseeable.
On remand, the district court shall construe the evidence in light
of this negative spoliation inference, which would permit a
reasonable trier of fact to find that two of the appellants were
harmed by creation and use of the destroyed records. Otherwise
we affirm.
I.
In April 2007, an anonymous letter signed by “A Group of
Concerned Department of Justice Employees” was sent to the
3
Chairmen of the U.S. House and U.S. Senate Judiciary
Committees, alleging that Honors Program hiring had been
politicized. Articles about the letter appeared in the Wall Street
Journal and the Washington Post. In June 2008, the
Department’s Office of the Inspector General and Office of
Professional Responsibility issued a report on their “joint
investigation concerning whether the political or ideological
affiliations of applicants were improperly considered in the
selection of candidates for the Attorney General’s Honors
Program and the Summer Law Intern Program from 2002 to
2006.” OFFICE OF THE INSPECTOR GENERAL AND OFFICE OF
PROFESSIONAL RESPONSIBILITY, U.S. DEP’T OF JUSTICE, AN
INVESTIGATION OF ALLEGATIONS OF POLITICIZED HIRING IN THE
DEPARTMENT OF JUSTICE HONORS PROGRAM AND SUMMER LAW
INTERN PROGRAM 1 (Jun. 24, 2008). The 2008 Report
confirmed, as relevant, the following:
• The Honors Program is “the exclusive means by
which the Department hires” all of its entry-level attorneys,
including “recent law school graduates and judicial law clerks
who do not have prior legal experience.” Id. at 3 (emphasis
added). Honors Program hiring affects the composition of the
Department’s corps of career attorneys, determining which
recent law school graduates are selected to enter its ranks, in
most instances with the opportunity to remain permanently. Id.
The process “historically has been very competitive, with the
Department receiving hundreds more applications than available
positions.” Id.
• In 2002, the Department changed its hiring
procedures to reflect the recommendations of a Working Group
of senior officials in the offices of the Attorney General, Deputy
Attorney General, and Associate Attorney General. Id. at 4. In
order to increase political appointee participation and attract
more qualified applicants, the Department created a centralized
4
Honors Program Screening Committee, located in Washington,
D.C., to review applicants selected by the various components
for interviews. Id. at 4, 5. The new location allowed political
appointees in leadership positions to be more involved in the
selection process. Id. at 4–5. Additionally, the Office of
Attorney Recruitment and Management (“Recruitment
Management Office”) created a centralized, automated process
for submission of applications. Id. at 4. Some of these reforms
sparked internal Department complaints in 2002, but it was not
until 2006 that widespread criticism of the program emerged
following the Screening Committee’s decision to “deselect” an
unusually high number of applicants whom the Department’s
components had already selected to travel to Washington, D.C.
for interviews. Id. at 5.
• The 2006 Screening Committee was composed of two
political appointees, Michael Elston, Chief of Staff and
Counselor to the Deputy Attorney General, and Esther
McDonald, Counsel to the Associate Attorney General. Id. at
75, 79. The third member, Daniel Fridman, was a career
Assistant U.S. Attorney on detail to the Deputy Attorney
General’s Office. Id. at 69. For the screening process both
McDonald and Fridman would review the applicants on the list
of those chosen by the various Department components to
decide whether to approve interviews of them. Id. at 72. This
involved printing and marking paper versions of the applications
submitted through the automated system. Id. at 68, 72.
McDonald and Fridman forwarded these paper copies, any
attachments, and their own recommendations to Elston, who
would make the final decision as to whether the applicant would
be interviewed. Id. at 81, 94. In 2006 the Screening Committee
“deselected” 31 percent of the applicants forwarded by
Department components, an enormous increase over the
previous three years, when the “deselection” rate ranged
between one and seven percent. Id. at 39–40.
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• Both Elston and McDonald used ideological and
political factors in “deselecting” applicants, id. at 81, 83,
99–100, while Fridman refused to use such “improper
considerations,” id. at 100. Specifically, McDonald looked for
indications of an applicant’s association with “liberal”
organizations in the submitted application materials and also, in
many instances, conducted internet searches on applicants to
locate any other “leftist” ideological affiliations. Id. at 77.
McDonald’s ideological litmus test included what she referred
to as “leftist commentary,” like the use of the phrase “social
justice” in an applicant’s essay, membership in groups like the
American Constitution Society, an organization intended to be
a “‘progressive’ counterpart to the more conservative Federalist
Society,” id. at 78, or work history with “a judge, law professor,
or legislator [McDonald] considered liberal.” Id. at 93. Elston
permitted McDonald to recommend “deselection” based on
ideological affiliation, even after Fridman alerted him to these
improprieties, and he gave “vague” instructions to Fridman to
“deselect” “wackos” or individuals who did not have “views
consistent with the Attorney General’s views on law
enforcement.” Id. at 94.
• McDonald’s internet background checks led to the
creation of written notations and computer printouts containing
information she viewed online. Id. at 73, 82. Fridman recalled
seeing her written comment on a paper copy of an application
stating that the applicant’s law review article on detention at the
U.S. naval base at Guantanamo Bay, Cuba, “was contrary to the
position of the administration.” Id. at 73. Another of
McDonald’s written comments indicated she had found
information online that an applicant was an “anarchist.” Id.
Elston recalled seeing printouts from internet searches that
McDonald had attached to applications and did not discourage
her from seeking out and documenting applicant background
information in this manner. Id. at 82.
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• McDonald would recommend “deselection” of
applicants based on ideological factors, some of which she
discovered not from the applications themselves but from her
own internet research, regardless of the applicant’s
qualifications. Id. at 73. Using Fridman’s apolitical hiring
criteria, the Report investigators developed an operational
definition of “highly qualified candidates,” id. at 42 — i.e.,
those who “either attended a top 20 law school, were ranked in
the top 20 percent of the class, or attended a law school that did
not rank candidates,” and who did not have a grade lower than
a B on their transcript. Id. at 43. For data analysis purposes, the
investigators also defined “liberal” organizations as those that
promote “choice in abortion issues, gay rights, defense of
immigrants, separation of church and state, and privacy rights”
and “conservative” organizations as those that promote “defense
of religious liberty, traditional family values, free enterprise,
limited government, and right to life issues.” Id. at 19 n.18.
When examined in light of these definitions, the applicant data
for 2006 showed that the Screening Committee had “deselected”
40 percent of highly qualified applicants with liberal affiliations
and only six percent of highly qualified applicants with
conservative affiliations. Id. at 43.
• Elston and others responsible for the 2006 Honors
Program hiring process were aware during and shortly after the
time of the selection review that the “appearance of what
McDonald was doing was problematic.” Id. at 83 (quoting
Elston) (internal alterations omitted). After a conversation with
Fridman, the Associate Deputy Attorney General told the
investigators that he had “understood that Fridman was
concerned that Elston may have asked him to review candidates
based on their political or ideological views,” id. at 70, and had
advised Elston of Fridman’s concerns, id. at 70–71. On another
occasion, the Assistant Attorney General of the Civil Division
telephoned Elston after learning that he had rejected an appeal
7
of a “deselected” highly qualified applicant and told him “a lot
of people . . . believe that these deselections are either irrational
or so irrational that they are motivated by politics, and that’s a
problem you know . . . when this many people in a Department
are this unhappy about something, it’s going to be an issue.” Id.
at 48 (quotation marks omitted). After a December 5, 2006
meeting to discuss the “deselections” with Department
components, a senior Tax Division attorney went to Elston’s
office and “told him that he and others were concerned that
politics had played a role in the deselections.” Id. at 62.
Additionally, the director of the Recruitment Management
Office acknowledged that during the 2006 “deselection” process
“a few employees raised to him an ‘implication’ that the
candidates were ‘being deselected in these numbers because of
political considerations.’” Id. at 59.
• Despite being aware that there were serious
irregularities in the 2006 hiring process, the officials involved
did not take steps to preserve documentation of how they made
their decisions. Instead, Elston permitted all of the annotated
paper copies of the applications and internet printouts to be
destroyed in early 2007. Id. at 69. McDonald stated in
reference to the destruction of records that Elston had told her
that “at least that’s one thing I did right.” McDonald Dep. 262:
1-2, July 27, 2010.
• In April 2007, the Department replaced the Screening
Committee with “an Ad Hoc Working Group of career officials
from the major components participating in the Honors
Program.” Id. at 67.
On June 30, 2008, Sean Gerlich sued and filed, with others,
amended complaints on August 15, 2008 and November 12,
2008, raising claims under the Privacy Act of 1974, the Civil
Service Reform Act, the Federal Records Act, and the
8
Constitution. They relied on the findings in the 2008 Report,
and sought damages in addition to injunctive and declaratory
relief. The district court dismissed all claims against the
individual defendants, and all except counts I and II of the
second amended complaint, which alleged violations of the
Privacy Act, 5 U.S.C. § 552a(e)(5) and (e)(7). See Gerlich v.
Dep’t of Justice, 659 F. Supp. 2d 1, 20 (D.D.C. 2009).
Following discovery, the court dismissed the Privacy Act claims
under 5 U.S.C. § 552a(e)(1-2), (e)(6), and (e)(9-10) for lack of
adequate pleading that the records at issue were part of a
“system of records.” See id. at 16–17. It dismissed for lack of
standing claims of plaintiffs who had “never reached the stage
in the hiring process where the violations allegedly occurred,”
id. at 17–18, and it dismissed plaintiffs’ constitutional claims
under Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971), in light of the remedial
scheme created by the Civil Service Reform Act, see Gerlich,
659 F. Supp. 2d at 12. The district court also denied, in the
absence of a showing of excusable neglect, the untimely motion
for certification of a class comprising all “deselected” applicants
to the Honors Program in 2006, and denied reconsideration.
The remaining plaintiffs — Matthew J. Faiella, Daniel J.
Herber, and James N. Saul — appellants here, moved on May
20, 2011, for summary judgment, as did the Department the
following month. On July 25, 2011, the plaintiffs filed a motion
for a spoliation sanction, seeking an adverse inference
supporting their claims based on the Department’s destruction
of the paper copies of their applications, which the Screening
Committee used to make its evaluations and which McDonald
annotated and supplemented with internet printout attachments.
The district court ruled that the plaintiffs were not entitled to an
adverse inference and granted summary judgment. Although
senior Department officials violated the Privacy Act as to at
least “some” Honors Program applicants, in the absence of
9
evidence confirming McDonald had created records from her
internet searches with regard to the plaintiffs, the district court
concluded that there was no way of knowing whether their
“deselection” was based on records created in violation of the
Privacy Act or the information contained within the applications
they themselves submitted. See Gerlich, 828 F. Supp. 2d at
304–305.
Appellants appeal. Our review of the dismissal of counts
III-VII and the grant of summary judgement on counts I and II
is de novo. See Dixon v. District of Columbia, 666 F.3d 1337,
1341 (D.C. Cir. 2011); Sigmund v. Starwood Urban Retail VI,
LLC, 617 F.3d 512, 513 (D.C. Cir. 2010). We review the denial
of a spoliation sanction for abuse of discretion, see Shepherd v.
Am. Broad. Co., 62 F.3d 1469, 1475 (D.C. Cir. 1995), as we do
the denial of the motion for class certification, see Garcia v.
Johanns, 444 F.3d 625, 631 (D.C. Cir. 2006); In re Vitamins
Antitrust Class Actions, 327 F.3d 1207, 1209 (D.C. Cir. 2003).
Appellants do not pursue their claims for injunctive and
declaratory relief under the Civil Service Act, the Federal
Records Act, and the Privacy Act; nor do they pursue their
Constitutional claims.
II.
In the Privacy Act, 5 U.S.C. § 552a, Congress addressed
“the collection, maintenance, use, and dissemination of
information by [federal] agencies” in order to “protect the
privacy of individuals identified” in agency “information
systems.” Pub. L. No. 93-579 § 2(A)(5), 88 Stat. 1896 (1974).
The Act “gives agencies detailed instructions for managing their
records and provides for various sorts of civil relief to
individuals aggrieved by failures on the Government’s part to
comply with the requirements.” Doe v. Chao, 540 U.S. 614, 618
(2004). Some of the Privacy Act’s provisions regulate what an
10
agency can do with records maintained in its system of records
while others regulate what an agency can do with any records in
its possession, regardless of whether they are incorporated into
a system of records. See Maydak v. United States, 363 F.3d 512,
516, 518–19 (D.C. Cir. 2004); Albright v. United States, 631
F.2d 915, 916–17 (D.C. Cir. 1980). The Act defines a “record”
as “any item, collection, or grouping of information about an
individual that is maintained by an agency . . . and that contains
his name, or the identifying number, symbol, or other
identifying particular assigned to the individual . . . .” 5 U.S.C.
§ 552a(a)(4). A “system of records” is defined as “a group of
any records under the control of any agency from which
information is retrieved by the name of the individual or by
some identifying number, symbol, or other identifying particular
assigned to the individual.” Id. § 552a(a)(5).
A.
The Privacy Act provisions codified at 5 U.S.C.
§ 552a(e)(1-2) and (e)(9-10) apply in situations involving
records incorporated into an agency’s system of records. See
Maydak, 363 F.3d at 515–16, 519. Appellants acknowledge that
the records at issue were not part of the Department’s system of
records, but contend that they should be so deemed because the
Department, as an agency subject to the Privacy Act, was
required to incorporate them into that system. See Appellants’
Br. at 49–50 & n.35. They fault the district court’s rejection of
this argument as “an undue over-reading of Maydak.” Id. at 51.
They maintain that the lack of physical incorporation into a
system of records is not dispositive of the question whether the
records at issue were “‘functionally,’” and thus legally, “within
an appropriate personnel records system . . . .” Id. at 51 n.35.
To so hold, they continue, would not be in keeping with this
court’s Privacy Act jurisprudence, which, “[r]ecognizing the
[Privacy] Act’s varied ambiguities, . . . ha[s] consistently
turned back ‘neat legal maneuver[s]’ . . . attempted by the
11
government that, while literally consistent with the Act’s terms,
were not in keeping with the privacy-protection responsibilities
that Congress intended to assign to agencies under the Act.” Id.
at 51 (quoting Pilon v. U.S. Dep’t of Justice, 73 F.3d 1111, 1118
(D.C. Cir. 1996)).
Appellants’ argument regarding the “functional”
incorporation of the “deselection” records into the Department’s
system of records appears only in a footnote to their opening
brief, and, as the Department notes, this court has observed that
“[w]e need not consider cursory arguments made only in a
footnote . . . . ” Appellees’ Br. at 48 n.6 (citing Hutchins v.
District of Columbia, 188 F.3d 531, 539 n.3 (D.C. Cir. 1999)).
The obstacle to reaching appellants’ “functional” argument,
however, is not its placement in a footnote but their failure to
make this argument in the district court. See Jicarilla Apache
Nation v. U.S. Dep’t of Interior, 613 F.3d 1112, 1117 (D.C. Cir.
2010). They offer no exceptional circumstances for not doing so.
Indeed, given our remand in Maydak, the argument was available
to them; in that case the court remanded for a determination of
whether a set of photographs maintained by the Bureau of
Prisons was a system of records under the Privacy Act, in light
of “the agency’s function, the purpose for which the information
was gathered, and the agency’s actual retrieval practices and
policies.” 363 F.3d at 520 (quoting Henke v. U.S. Dep’t of
Comm., 83 F.3d 1453, 1461 (D.C. Cir. 1996)). Instead, in the
district court appellants argued that because the Department was
required to maintain the “deselection” records within its “system
of records,” a court must deem them to be part of that system.
See Pls’ Consol. Mem. of Points and Authorities in Opp. to Defs’
Motions to Dismiss at 18–19 (Jan. 9, 2009); see also Gerlich,
659 F. Supp. 2d at 16–17. This is no minor distinction. The
“functional” approach now urged by appellants hinges on
questions of how the Department organized and used the
“deselection” records; the approach urged by appellants in the
12
district court hinges on the question whether the Department had
a legal obligation to place those records in its system of records
and involved no functional inquiry. Under the circumstances,
the “functional” argument is not properly before this court.
Because appellants offer no legal support for deeming the
“deselection” records to be in a system of records, the district
court properly dismissed their claims under § 552a(e)(1-2) and
(e)(9-10). The district court also properly dismissed their claims
under § 552a(e)(6) because the “disseminat[ion]” of records is
not at issue.
B.
Appellants’ remaining Privacy Act claims arise under 5
U.S.C. § 552a(e)(5) and (e)(7). Subsection (e)(5) requires an
agency to “maintain all records which are used by the agency in
making any determination about any individual with such
accuracy, relevance, timeliness, and completeness as is
reasonably necessary to assure fairness to the individual in the
determination.” Section 552a(g)(1)(C), in turn, “provides a civil
remedy if an agency fails to satisfy the standard in subsection
(e)(5),” Deters v. U.S. Parole Comm’n, 85 F.3d 655, 657 (D.C.
Cir. 1996), and “applies to ‘any record,’ and not [only] ‘any
record within a system of records’ . . . .” McCready, 465 F.3d at
12. The obligations the Privacy Act established in subsection
(e)(5) therefore apply even when the agency does not maintain
the records at issue in its system of records.
Subsection (e)(7) mandates that an agency “maintain no
record describing how any individual exercises rights guaranteed
by the First Amendment unless expressly authorized by statute
or by the individual about whom the record is maintained or
unless pertinent to and within the scope of an authorized law
enforcement activity.” In view of “Congress’ own special
concern for the protection of First Amendment rights,” this court
has concluded that the obligations imposed by subsection (e)(7)
13
are not limited to records maintained in a system of records.
Albright, 631 F.2d at 919.
The Privacy Act creates a cause of action for violations of
§ 552a(e)(5) whereby “an individual may bring a civil action
against the agency” when it “fails to maintain any record
concerning any individual with such accuracy, relevance,
timeliness, and completeness as is necessary to assure fairness in
any determination . . . and consequently a determination is made
which is adverse to the individual.” 5 U.S.C. § 552a(g)(1)(C);
see also Deters, 85 F.3d at 657. With regard to § 552a(e)(7)
violations, the Privacy Act provides an avenue of relief through
a more general provision, which permits an individual to file suit
when an agency “fails to comply with any other provision of this
section, or any rule promulgated thereunder, in such a way as to
have an adverse effect on an individual.” 5 U.S.C.
§ 552a(g)(1)(D); see also Chao, 540 U.S. at 619. Additionally,
the Privacy Act allows plaintiffs to seek money damages in
lawsuits brought under § 552a (g)(1)(C) or (g)(1)(D) when “the
agency acted in a manner which was intentional or willful.” 5
U.S.C. § 552a(g)(4). For appellants to prevail in their lawsuit,
then, they must demonstrate that the creation of annotations and
printouts from internet searches violated § 552a (e)(5) or (e)(7);
that the Screening Committee’s adverse determination, i.e., its
decision to “deselect” them for interviews, was based on these
records; and that it acted intentionally or willfully in creating the
records.
The failure of senior Department officials to preserve the
“deselection” records makes it more difficult for appellants to
show that they were among the applicants whose materials were
annotated or supplemented with internet printouts by the
Screening Committee. As the district court explained:
14
The Justice Department does not deny that DOJ
officials conducted this [inappropriate political and
ideological screening] activity with respect to some,
but not all, applicants to the 2006 Honors Program.
Because the relevant files have been destroyed,
however, DOJ maintains that plaintiffs cannot prove
that inappropriate records were created about them
specifically.
Gerlich, 828 F. Supp. 2d at 287. Appellants moved in the
district court for a spoliation sanction as a result of the
destruction of the relevant records, requesting that the district
court draw the adverse inference that improper records were in
fact created with regard to appellants’ applications and that such
records were the reason for their “deselection.” See id. at 294.
The district court rejected their argument under the Federal
Records Act, 44 U.S.C. § 2901 et seq., and found no regulation
or policy prohibited the destruction pursuant to the Department’s
records disposition schedule. See id. at 300–02.
The Department maintains that appellants waived a separate
legal ground for their requested inference, referencing their
counsel’s statement at a motions hearing that the duty to
preserve the records under the Federal Records Act “has nothing
to do with whether litigation was pending then or upcoming,”
Tr. Oct. 14, 2011 at 82. In acknowledging that duty stands apart
from a separate preservation ground, i.e., a duty to preserve
evidence when litigation is reasonably foreseeable, appellants’
counsel was not denying that separate ground exists. The
separate ground was set forth in appellants’ opposition to
summary judgment, citing cases, and supplemental briefing
where they argued, also citing case authority, that a duty arose
in light of the Screening Committee’s “violation of basic civil
service principles,” see Pls.’ Supp. Mem. Nov. 10, 2011 at 7 &
n.11; see also 2008 Report at 93, and in light of the destruction
15
of the “deselection” records by Department officials who should
have known they were likely to be relevant to a Department
investigation and future litigation. Any doubt about whether
appellants intended to assert this separate ground for a spoliation
sanction created by counsel’s statement at the motions hearing
was dispelled when they thereafter included the separate ground
in supplemental briefing ordered by the district court. Cf. Petit
v. U.S. Dep’t of Educ., 675 F.3d 769, 779 (D.C. Cir. 2012).
This court has recognized that a negative inference may be
justified where the defendant has destroyed potentially relevant
evidence. See Talavera v. Shah, 638 F.3d 303, 311 (D.C. Cir.
2011); Webb v. District of Columbia, 146 F.3d 964, 972–73
(D.C. Cir. 1998); Shepherd, 62 F.3d 1475. In Talavera, a Title
VII case, a selecting official’s negligent destruction of relevant
records violated regulatory obligations to preserve his records:
for two years under OPM regulations, 5 C.F.R. § 335.103(b)(5)
(2004), and for one year under EEOC regulations, 29 C.F.R.
§ 1602.14 (2003). 638 F.3d at 312. The court concluded that a
negative spoliation inference instruction to the jury was
warranted because the regulations were designed to protect the
party moving for the sanction and the destroyed records
“represented [the plaintiff’s] best chance to present direct
evidence” proving her claim. Id. The fact that the records were
destroyed as part of the defendant’s “‘typical’ practice” was
insufficient to overcome the duty to preserve them. Id. The
court noted that other circuits had similarly concluded a written
policy requiring document preservation sufficed. Id. at 311
(citing Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93,
108–09 (2d Cir. 2001); Favors v. Fisher, 13 F.3d 1235, 1239
(8th Cir. 1994); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1419
(10th Cir. 1987)).
Because in Talavera, OPM and EEOC regulations created
the duty to preserve the relevant documents, the court had no
16
occasion to decide whether a negative spoliation inference was
warranted where the duty to preserve documents arose from a
source other than a statute or regulation. Other circuit courts of
appeals have held that a duty of preservation exists where
litigation is reasonably foreseeable. In Kronisch v. United
States, 150 F.3d 112, 126 (2d Cir. 1998), the case cited in
appellants’ supplemental briefing in the district court, the
Second Circuit held that the duty may arise when a “party has
notice that the evidence is relevant to litigation — most
commonly when suit has already been filed, providing the party
responsible for the destruction with express notice, but also on
occasion in other circumstances, as for example when a party
should have known that the evidence may be relevant to future
litigation.” Id. (emphasis added). The circuit courts to address
the issue have adopted this approach. See Beaven v. U.S. Dep’t
of Justice, 622 F.3d 540, 554 (6th Cir. 2010); Burlington N. and
Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th Cir.
2007); Ritchie v. United States, 451 F.3d 1019, 1024 (9th Cir.
2006); Silvestri v. General Motors Corp., 271 F.3d 583, 591 (4th
Cir. 2001). We now do likewise. Once a court has determined
that future litigation was reasonably foreseeable to the party who
destroyed relevant records, the court must then assess, as in
Talavera, 638 F.3d at 312, whether the destroyed records were
likely relevant to the contested issue. See Kronisch, 150 F.3d at
127. The duty is triggered as well by a reasonably foreseeable
Department investigation, which here, given the egregious and
notorious violation of Department policy and civil service laws
by senior Department officials, see 2008 Report at 93, was not
merely foreseeable but likely.
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. Nevertheless, they intentionally destroyed these
17
records. Elston and the Director of the Recruitment
Management Office received multiple 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. The controversy that
began boiling up around the “deselections” in late 2006, before
the annotated applications and appended printouts were
destroyed in early 2007, gave fair warning to those senior
officials that the Department’s investigation of such allegations
and future litigation were reasonably foreseeable, indeed likely.
The officials involved in the 2006 Honors Program applicant
screening were lawyers working for a department regularly
involved in litigation who could hardly not have known, given
the egregious and notorious factual circumstances, that the
working copies of the applications, with their annotations
highlighting reasons for “deselection” and the accompanying
internet printouts attached to support a particular “deselection”
decision, would be relevant to the Department’s investigation
and likely future litigation. Elston’s assistant, however, placed
the applications in a “burn box,” 2008 Report at 69, consistent
with Elston’s “practice not to keep documents that we didn’t
need anymore.” Elston Dep. 138:22 - 139:1, Aug. 10, 2010.
McDonald related that Elston had mentioned the record
destruction to her, stating “at least that’s one thing I did right.”
McDonald Dep. 262: 1-2, July 27, 2010. Viewing the evidence
in the light most favorable to appellants, and granting them all
favorable inferences that are reasonable, as must be done in
considering whether summary judgment is appropriate, see
Talavera, 638 F.3d at 308, a reasonable trier of fact could find
that the record destruction was neither accidental nor simply a
matter of utilizing the Department’s record destruction schedule.
On the question whether appellants can show that the
destroyed documents contained information relevant to their
claims, see Kronisch, 150 F.3d at 127–28, the matter is slightly
18
more complex. In an inquiry that “is unavoidably imperfect . . .
in the absence of the destroyed evidence, [a court] can only
venture guesses with varying degrees of confidence as to what
that missing evidence may have revealed.” Id. at 127. The
movant must make “some showing that the destroyed evidence
would have been relevant to the contested issue.” Id. Without
identifying a fixed quantum of evidence, the Second Circuit
cautioned “that care should be taken not to require too specific
a level of proof.” Id. at 128 (internal quotation marks and
citation omitted). Likewise, the Ninth Circuit concluded that in
situations where “the document destruction has made it more
difficult for a party to prove that the documents destroyed were
relevant,” the “burden on the party seeking the adverse inference
is lower,” and “the trier of fact may draw such an inference
based even on a very slight showing that the documents are
relevant.” Ritchie, 451 F.3d at 1025.
Appellants Faiella and Herber have shown that summary
judgment was inappropriately granted on their Privacy Act
claims under § 552(e)(5) and (e)(7) and that the denial of their
motion for a spoliation sanction was error. The proffered
evidence showed the following: First, as a general matter,
McDonald conducted internet searches on 2006 Honors Program
applicants’ ideological affiliations and, in multiple instances,
annotated the candidates’ printed applications with information
gleaned from her online research. Second, in some instances
McDonald printed out similar information from the internet and
attached it to the working copies of the applications. Third, a
search of McDonald’s computer hard drive revealed that she had
performed internet searches on Faiella and Herber and found
information on Faiella’s opposition to military recruiters on
Cornell University’s campus and Herber’s election to a seat on
the City Council of La Crosse, Wisconsin as a member of the
Green Party. This information regarding their First Amendment
activities was not contained in the materials Faiella and Herber
19
submitted as part of their 2006 Honors Program applications.
Given the 2008 Report’s account of McDonald’s aversion to
approving applicants with liberal political party affiliations or
who had been involved in organizations committed to
progressive causes, it is reasonable to infer that this information
would have raised “red flags” for McDonald and could have
resulted in her deciding to annotate their applications or to attach
printouts to them from the websites she visited.
Additionally, the proffered evidence is sufficient to support
a reasonable inference that the destroyed records could have
supported Faiella and Herber’s claims that their “deselection”
for interviews was based on the creation of these records in
violation of 5 U.S.C. § 552a(e)(5) and (e)(7). The Department
suggests that there was adequate information of liberal
affiliations in Faiella’s and Herber’s applications for McDonald
to have based her “deselection” decision on the applications
themselves, and that although improper, this would not
constitute a Privacy Act violation. Because appellants have not
pursued their Civil Service Reform Act claims on appeal, the
court has no occasion to address the inappropriateness of such
a “deselection” under the civil service laws, but there remains
another question that cannot be ignored: if the liberal affiliations
listed on Faiella’s and Herber’s applications were enough to
trigger their “deselection,” then why would McDonald have
performed additional internet research on these two applicants
while under intense time pressure to complete the review
process? See 2008 Report at 83. Although the proffered
evidence does not prove that the adverse decisions were linked
to improperly collected records, and so entitle Faiella and Herber
to summary judgment, it is sufficient to draw an inference of
relevance where, as here, a party’s destruction of evidence has
made it more difficult for the plaintiff to establish the relevance
of that evidence to the disputed issue of material fact. This is so
despite the fact that, as the Department suggests, appellants
20
could have asked McDonald during her deposition whether she
made annotations on their applications. Even if her response
confirmed her deposition statement through counsel that she did
not recollect the applications, this would not be dispositive of
whether she had created records based on her internet searches
on Faiella and Herber. It speaks only to her recollections, not to
whether she actually created such records. On the other hand,
because Saul has not proffered comparable evidence as to his
2006 Honors Program application, there is no basis for a
reasonable inference of relevance as to him and the district court
properly granted summary judgment on his § 552a(e)(5) and
(e)(7) claims.
Because the complaints lodged by Department attorneys
about the politicization of the 2006 attorney hiring process made
the Department’s investigation and future litigation reasonably
foreseeable and thereby created a duty to preserve the Honors
Program records, the court need not decide whether a separate
obligation of preservation existed under the Federal Records Act
or other statutes and regulations
C.
Finally, appellants’ challenge to the district court’s denial
of class certification as an abuse of discretion fails for the
following reasons. First, appellants concede that in filing the
motion for class certification four months late they failed to
comply with a local timing rule, D.C. DIST. CT. LOCAL R.
23.1(b), and that they never asked for an extension of time to
file (as the Department noted in its opposition). Although in the
district court appellants were on notice that the Department
opposed their motion as untimely, they did not argue in reply
that Local Rule 23.1(b) conflicts with FED. R. CIV. P.
23(c)(1)(A) when attempting to justify their tardy filing; instead,
appellants first raised this argument in moving for
reconsideration. Under the circumstances, an appellate court is
21
unlikely to address an issue first raised in the district court on
reconsideration, see, e.g., Office Comm. of Unsecured Creditors
of Color Tile v. Coopers & Lybrand, LLP, 322 F.3d 147, 159 (2d
Cir. 2003).
Second, by failing to include any relevant arguments in their
appellate briefs, see Schneider v. Kissinger, 412 F.3d 190, 200
n.1 (D.C. Cir. 2005), appellants fail to show that the district
court’s determination that there was no excusable neglect for the
late filing, see Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
Partnership, 507 U.S. 380, 395 (1993), was an abuse of
discretion, see In re Vitamins Antitrust Class Actions, 327 F.3d
at 1209. They contend, however, that the denial of class
certification should be reversed “for the reasons fully set forth
in support of their interlocutory petition,” which was denied, see
In re Saul, et al., No. 10-8003 (D.C. Cir. Oct 5, 2010), while
stating in their brief only that the district court “misapplied
existing law . . . and that it had mistakenly balanced all equities
involved,” Appellants’ Br. 55. This court has long cautioned
that “[i]t is not enough merely to mention a possible argument
in the most skeletal way, leaving the court to do counsel’s
work.” Schneider, 412 F.3d at 200 n.1. Appellants’ explanation
that they adopted “the ‘triage approach’” because appellee’s
counsel would not consent to an extension of the 14,000-word
space limitation, see Reply Br. 26 n. 20, fails to reconcile its
approach with our rules, see D.C. CIR. R. 32(a)(7), or to
persuade us that they could not have presented their challenge
within the 14,000 words of their opening brief.
Accordingly, we reverse the grant of summary judgment on
Faiella and Herber’s claims under the Privacy Act, 5 U.S.C.
§ 552a(e)(5) and (e)(7). On remand the district court shall
construe the evidence in light of the negative spoliation
inference, which would permit a reasonable trier of fact to find
22
that they were harmed by the creation and use of the destroyed
records. Otherwise we affirm.