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DOJ Pinned on Spurning Young Liberal Lawyers

WASHINGTON (CN) - Two young lawyers who say their leftist leanings cost them entry to Justice Department programs can pursue privacy claims, the D.C. Circuit ruled.

Sean Gerlich led the 2008 class action, which alleged that the department spurned hundreds of top-ranked law grads fromits Honors Program and Summer Law Intern Program for political reasons. A federal judge dismissed most claims, refused to certify the class, and nixed all but three of the plaintiffs, Matthew Faiella, Daniel Herber and James Saul.

According to their complaint, the Justice Department under the George W. Bush administration used a screening process to fish out all of the applicants for its law programs with "liberal" tendencies by searching the Internet for their names.

Those applicants were allegedly deselected from the list and denied employment.

The young attorneys claimed that the illegal bias against them was carried out "primarily [through] Chief of Staff to the Deputy Attorney General Michael J. Elston, Deputy Associate Attorney General Esther S. McDonald, and - to a lesser extent - Office of Attorney Recruitment and Management Director Louis DeFalaise, under the supervision of Deputy Attorney General Paul J. McNulty; Acting Associate Attorney General William W. Mercer, and Principal Deputy Associate Attorney General Gregory Katsas."

They pointed to a joint 2008 report from the Office of Inspector General and Office for Professional Responsibility that confirmed the allegations of politicized hiring.

As described in the lawyers' complaint, that joint report "found that nearly 190 Honors Program applicants and 170 Summer Law Intern Program applicants in 2006 had their applications rejected amidst a blatantly politicized process."

The report found that McDonald ran Internet background checks on the applicants, creating written notations and computer printouts of the information she viewed online. After researching the online activities of the applicants, McDonald recommended "deselection" of candidates who did not meet the ideological criteria.

Both sides moved for summary judgment in 2011, and the three remaining plaintiffs also accused the government of destroying evidence. They said the department had burned their applications, which the Screening Committee used to make its evaluations and which McDonald annotated and supplemented with Internet printout attachments.

Though U.S. District Judge John Bates noted "this case arises from a dark chapter in the United States Department of Justice's history," he granted the government summary judgment in 2011.

A three-judge panel of the D.C. Circuit revived Faiella and Herber's claims under the Privacy Act, despite noting that missing records make it difficult to prove "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 panel noted that sanctioning the government could help the lawyers meet this hurdle since it requires the court to "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.'"

"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," Judge Judith Rogers wrote for the panel. "Nevertheless, they intentionally destroyed these records. ... 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, 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 ruling notes that "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."

Faiella and Herber had not, however, included materials regarding these First Amendment activities in their applications to the 2006 honors program.

"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," Rogers wrote.

The ruling notes that DOJ investigators "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.' 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."

After reviving the Privacy Act claims, the panel directed entry of the spoliation sanction and otherwise affirmed dismissal of the other claims, as well as denied class certification.

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