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.
2

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. 
5

• 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.
6

• 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
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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.