## Facts

- Three attorney applicants to the Department of Justice (DOJ) Attorney General’s Honors Program (2006) alleged they were denied interviews because of their political affiliations and related expressive activity.
- Plaintiffs alleged DOJ officials created and maintained records reflecting those affiliations, including annotations on applications and printed internet materials about political activity.
- After public allegations of politicized hiring and in the shadow of anticipated investigation and litigation, senior DOJ officials destroyed application materials for unsuccessful candidates, including annotated applications and related printouts.
- Plaintiffs contended the destruction impaired their ability to prove unlawful recordkeeping and use of First-Amendment-related information in DOJ hiring decisions.
- Plaintiffs sued under the Privacy Act, seeking damages under 5 U.S.C. § 552a(g), including claims tied to §§ 552a(e)(5) (fairness-related record accuracy/completeness) and 552a(e)(7) (limits on maintaining records describing First Amendment activity).

## Issues

1. Whether summary judgment for DOJ on Privacy Act claims under 5 U.S.C. §§ 552a(e)(5) and (e)(7) was proper given evidence that relevant records were created and later destroyed.
2. Whether the district court abused its discretion by refusing to apply a permissive adverse inference for spoliation after DOJ destroyed records when investigation and litigation were reasonably foreseeable.
3. Whether other rulings, including denial of class certification, warranted reversal.

## Decision

- Reversed in part: summary judgment was improper on plaintiffs’ Privacy Act claims under §§ 552a(e)(5) and (e)(7).
- Held that DOJ officials had a duty to preserve the annotated applications and internet printouts once investigation and future litigation were reasonably foreseeable.
- Directed that a permissive spoliation (adverse) inference be considered, which could allow a factfinder to conclude the destroyed records were unfavorable to DOJ and that at least two plaintiffs suffered harm from creation and use of those records.
- Remanded for further proceedings consistent with applying the permissive spoliation inference to the §§ 552a(e)(5) and (e)(7) claims.
- Affirmed in all other respects, including denial of class certification and other challenged rulings.

## Legal Principles

- An agency’s duty to preserve evidence arises when investigation and litigation are reasonably foreseeable; destruction after that point can justify a permissive adverse inference.
- A permissive spoliation inference may be applied at the summary judgment stage to assess whether a reasonable factfinder could find for the nonmovant despite missing evidence.
- Privacy Act § 552a(e)(5) requires agencies to maintain records used to make determinations about individuals with accuracy, relevance, timeliness, and completeness reasonably necessary to assure fairness.
- Privacy Act § 552a(e)(7) generally prohibits agencies from maintaining records describing how individuals exercise First Amendment rights, subject to limited exceptions.
- Where destroyed records are central to proving creation, maintenance, and use of First-Amendment-related information in agency decisionmaking, spoliation may create triable disputes on Privacy Act liability and harm.

## Conclusion

The court partially reversed and remanded, holding that DOJ’s destruction of applicant materials warranted a permissive spoliation inference and that, with that inference, the §§ 552a(e)(5) and (e)(7) Privacy Act claims could proceed, while other aspects of the judgment were affirmed.


Gerlich v. U.S. Dep’t of Just., 711 F.3d 161 (D.C. Cir. 2013)