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Media Alerts - Sean Gerlich v. United States Department of Justice
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March 30, 2013
  Sean Gerlich v. United States Department of Justice
Headline: D.C. Circuit reverses summary judgment against DOJ Honors Program applicants claiming violation of the Privacy Act.

Area of Law: Privacy Act

Issue Presented: Whether the destruction of records by DOJ officials when litigation is reasonably foreseeable gives rise to an adverse inference making summary judgment inappropriate.

Brief Summary: Appellants, 2006 applicants to the United States Department of Justice Honors Program, sued the Department of Justice (DOJ) for violations of the Privacy Act. The Privacy Act prevents government agencies from maintaining records on an individual's First Amendment activity. Appellants alleged that senior officials at the DOJ created such records during the Honors Program application process, when they investigated applicants' political affiliations and annotated and attached computer printouts to appellants' applications. The Department's Office of the Inspector General and Office of Professional Responsibility conducted a joint investigation and issued a report in 2008, finding that the selection committee made hiring decisions based at least in part on the political affiliations of applicants, but the head of the committee allowed all the documents to be destroyed in 2007. Appellants sought an adverse inference supporting their claim, based on the destruction of the documents. The U.S. District Court for the District of Columbia ruled that appellants were not entitled to the adverse inference and granted summary judgment to DOJ.

The U.S. Court of Appeals for the District of Columbia Circuit reversed in part, joining all the other circuit courts to have addressed the issue, holding that a duty to preserve documents arises when a party should know that the evidence might be relevant to future litigation. Because of the controversy generated by the practice, the court found that department officials should have known that litigation about the content of the documents was likely. The court concluded that appellants were entitled to an adverse inference and that the summary judgment on the Privacy Act claims had been granted in error, but affirmed the district court's other rulings.

The full text of the opinion can be viewed at:

Panel: Garland, Rogers, and Griffith

Argument Date: 12/13/2012

Date of Issued Opinion: 3/29/2013

Docket Number: No. 09-5354

Decided: Reversed in part, affirmed in part

Case Alert Author: Joseph Maher

Counsel (if known): Daniel J. Metcalfe for Appellants. Daniel Tenny, Stuart F. Delery, Ronald C. Machen Jr., Mark B. Stern, Michael S. Raab, and R. Craig Lawrence for Appellees.

Author of Opinion: Rogers

Case Alert Circuit Supervisor: Elizabeth Beske/Ripple Weistling

    Posted By: Ripple Weistling @ 03/30/2013 09:30 AM     DC Circuit  

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