Gerlich v. United States Department of Justice

Sean Gerlich, Matthew Faiella, and Daniel Herber (plaintiffs) sued the United States Department of Justice (DOJ) (defendant) in federal court, alleging various improprieties related to their denial of admission to the DOJ’s honors-attorney program. Faiella and Herber contended that they had been turned down for political reasons. The two men proved four allegations: (1) that Esther McDonald, a senior DOJ official on the program’s selection panel, searched the Internet to see whether an applicant engaged in political activity that McDonald deemed objectionable; (2) that McDonald found Internet evidence of Faiella’s and Herber’s liberal political activities; (3) that McDonald opposed liberal political causes; and (4) that often, if McDonald vetoed an applicant for political reasons, she made a negative annotation on the applicant’s paperwork. However, without showing that their own paperwork carried McDonald’s negative annotations, Faiella and Herber could not prove that they themselves had been rejected for political reasons. In discovery, it became clear that, after litigation became reasonably foreseeable, McDonald destroyed the paperwork of all unsuccessful applicants, including Faiella and Herber. The two men filed a motion asking the court to draw adverse inferences from the loss of that paperwork. The court denied the motion and entered summary judgment for the DOJ. Faiella and Herber appealed to the circuit court of appeals.