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Lawyers rejected by Justice Department notch partial win

A federal appeals court ruled Friday that two lawyers who contend they were not hired by the Justice Department for political reasons in 2006 can proceed with a lawsuit against the federal government for violating their privacy rights.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit concluded that the lawyers, Matthew J. Faiella and Daniel J. Herber, were entitled to a legal presumption that when officials destroyed records of the hiring process those records contained evidence that would support the attorneys' suit. Faiella and Herber claim the records would have shown how Bush Justice Department officials used internet searches and other outside sources to nix applications from lawyers with left-leaning political affiliations.

"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 records," Judge Judith Rogers in an opinion joined by Judges Merrick Garland and Thomas Griffith (and posted here). "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 opinion says computer evidence shows that DOJ counsel Esther MacDonald did searches which indicated that Faiella opposed military recruiting at Cornell and Herber was elected to the LaCrosse, Wisc. city council as a member of the Green Party.

"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," wrote Rogers.

The appeals court ordered the case returned to the district court for further proceedings.

The lawyer for the pair and other applicants who sued over their rejection, Dan Metcalfe, hailed the appeals court's decision.

"At long last, plaintiffs in this case have been vindicated with a judicial recognition of both their Privacy Act rights and the fact that the [Attorney General Alberto] Gonzales Justice Department blatantly destroyed evidence as part of its 'egregious and notorious' Honors Program politicization scheme," Metcalfe said. "This decision should stand as potent deterrence of any such high-level corruption for years to come."

Faiella and Herber may be able to recover money damages in the lawsuit the appeals court restored, though the courts have rejected a class-action lawsuit on behalf of all applicants who claim they were black-balled for political reasons.

A Justice Department spokeswoman did not immediately reply to a request for comment on the ruling.

Rogers and Garland are Clinton appointees. Griffith was appointed by President George W. Bush.