Court Says DoJ Destroyed Proof of Political Hiring

     (CN) – The Department of Justice knowingly destroyed evidence that top-ranked law school graduates were not hired during the second Bush administration because of their presumed liberal leanings, the D.C. Circuit ruled.
     In 2006, three top-ranked law school graduates applied to the Department of Justice’s Honors Program, the exclusive means by which the department hires all of its entry-level attorneys. They were rejected.
     Two years later, the Justice Department investigated reports that its hiring process had become politicized. The investigation found that the 2006 screening committee had “‘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,'” according to the ruling.
     The screening committee, composed of former President George W. Bush appointees Michael Elston and Esther McDonald, and one career U.S. attorney, Daniel Fridman, rejected any applicant that used “leftist commentary,” belonged to a progressive group such as the American Constitution Society, or worked for a liberal judge, law professor or legislator, the report found.     
     McDonald also looked up applicants on the internet and made handwritten comments on applications based on information she viewed online. One such comment stated that an applicant’s law review article on Guantanamo Bay “was contrary to the position of the administration.” Another indicated that an applicant was an “anarchist.”
     Elston also 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,” according to the report.
     Using these methods, the screening committee deselected 40 percent of highly qualified liberal applicants and only 6 percent of highly qualified conservative applicants.
     Although Justice Department employees, including Fridman, raised concerns about McDonald’s methods, Elston permitted all the paper copies of the 2006 applications with written comments to be destroyed. McDonald testified that Elston told her “at least that’s one thing I did right.”
     Based on the report’s findings, deselected applicants filed a lawsuit against the department, but the district court denied their untimely motion for class certification. It also refused to sanction the department for destroying evidence on the three remaining plaintiffs and dismissed their Privacy Act claims.
     On appeal, the D.C. Circuit ruled that the Justice Department had a duty to preserve the appellants’ records given that litigation was foreseeable.
     “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 records,” Judge Judith Rogers wrote for the three-judge panel.
     “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.”
     The court also ruled that the destroyed evidence could have supported two of the plaintiffs’ claims, especially given that a search of McDonald’s hard drive showed that she had searched the internet for plaintiffs Matthew Faiella and Daniel Herber. McDonald discovered that Faiella opposed military recruitment on Cornell University’s campus, and that Herber was elected to a seat on the City Council of La Crosse, Wisc., as a member of the Green Party, the ruling states.
     “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?” Rogers asked. “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.”
     However, the appellate panel upheld the denial of class certification because the plaintiffs failed to show “excusable neglect” for filing their motion for class certification four months late.
     It also affirmed summary judgment against the third plaintiff, James Saul.

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