MICHAEL A. AQUINO, Plaintiff-Appellant, v.
MICHAEL P. W. STONE, SECRETARY OF THE ARMY, Defendant-Appellee.
No. 91-1164
UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
957 F.2d 139; 1992 U.S. App. LEXIS 2679
December 2, 1991, Argued
February 26, 1992, Decided
PRIOR HISTORY:
[**1] Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, District Judge.
(CA-90-1547-A)
DISPOSITION:
AFFIRMED
COUNSEL:
ARGUED: Gary Rowland Myers, GARY R. MYERS & ASSOCIATES, Washington, D.C.,
for Appellant.
Major Patrick W. P. Lisowski, Army Litigation Division, UNITED STATES ARMY,
Arlington, Virginia, for Appellee.
ON BRIEF: John A. Wickham, GARY R. MYERS & ASSOCIATES, Washington, D.C., for
Appellant.
Dennis Edward Szybala, Assistant United States Attorney, Alexandria, Virginia,
for Appellee.
JUDGES:
Before SPROUSE and NIEMEYER, Circuit Judges, and BUTZNER, Senior Circuit Judge.
Judge Niemeyer wrote the opinion, in which Judge Sprouse and Senior Judge
Butzner joined.
OPINION BY: EMEYER
OPINION: [957 F.2d 139, *140]
NIEMEYER, Circuit Judge:
Lieutenant Colonel Michael Aquino, formerly of the U.S. Army Reserves, filed
suit under the Privacy Act of 1974, 5 U.S.C. @ 552a (1988), against the
Secretary of the Army seeking to amend an Army report of a criminal
investigation about him and to recover damages caused by inaccuracies in the
report. He also sued under the Administrative Procedure Act, 5 U.S.C. @ 701, et
seq. (1988), to review the Secretary's refusal to amend the report.
[**2] [1992 U.S. App. LEXIS 2679,
**2]
The district court entered summary judgment for the Secretary,
concluding that
criminal investigatory files are exempt from the provisions of the Privacy Act
that were invoked by Aquino and that the Secretary's decision not to amend was
not arbitrary or capricious. Finding no reversible error, we affirm.
I.
In November 1986, the San Francisco Police Department (SFPD), the Federal Bureau
of Investigation (FBI) and the U.S. Army Criminal Investigation Division Command
(CID) began investigating charges that Gary Hambright had sexually molested
several of the children entrusted to his care as an employee at the Child
Development Center on the Army base known as the Presidio. On August 12, 1987,
Army Captain Larry Adams-Thompson reported to the authorities that his
three-year-old daughter, who had attended the Child Development Center during
the period of Hambright's alleged crimes, had become visibly frightened upon
seeing LTC Aquino and his wife at the Army's post-exchange that day and called
them"Mikey" and "Shamby." In a subsequent interview by an
FBI agent, the girl
implicated "Mikey," "Shamby" and "Mr. Gary" in the
sexual molestation of her and
other children at "Mr. Gary's house." [**3] The
investigation of Hambright was
expanded to include Aquino and his wife.
[*141] Although the SFPD discontinued its investigation of the
Aquinos in
September 1988 for lack of sufficient evidence, the CID continued and in August
1989 issued a report of investigation designating both Aquinos in the
"title
block" of the report and describing the various child-abuse and related
criminal
offenses investigated. The report concluded that the investigation was closed because all further leads involved adults who refused to cooperate, and the
applicable three year statute of limitations had expired in June 1989.
Thereafter, on January 31, 1990, the Aquinos requested that the CID remove their
names from the title block of the report. While the CID deleted Mrs. Aquino's
name entirely, on the ground that the identifications of her by the children
interviewed were inadequate, it did not delete LTC Aquino's name. The CID also
removed from the report charges arising out of allegations that Aquino made
against CPT Adams-T hompson. All the child-abuse charges remained, because
"the
evidence of alibi offered by LTC Aquino [was] not persuasive."
Aquino filed suit in the district court under the Privacy [**4] Act, 5
U.S.C. @
552a(g), to compel the Army to amend the investigatory report about him and for
damages resulting from his discharge from the service, which he attributes to
the inaccurate records about him. n1 He also sued under the Administrative
Procedure Act to review the action of the Secretary of the Army in developing
the investigatory report about him and in refusing to amend it. [
n1 In 1990 a continuation board of the Army Reserve recommended
discontinuing
Aquino's service in the Reserve, and he was processed out of the Army.]
On cross motions for summary judgment the district court granted the Army's
motion and denied Aquino's, holding that the files sought to be amended by
Aquino were exempt from the Privacy Act provisions under which Aquino sued. On
its review of the Army's action under the Administrative Procedure Act, the court concluded that "there was sufficient evidence from which the Army
decision
maker could determine that probable cause existed to believe that [Aquino]
committed the offenses" and [**5] that therefore the Army's decisions
to create
the report and not amend it were not arbitrary or capricious.
This appeal followed, but Aquino has now abandoned his claim for damages.
II.
The Privacy Act of 1974 was enacted to "protect the privacy of individuals
identified in information systems maintained by Federal agencies" by giving
the
individuals information about and access to records about them and permitting
them "to have a copy made of all or any portion thereof, and to correct or
amend
such records." Pub. L. No. 93-579, @ 2(a)(5), (b)(3), 88 Stat. 1896, 1896
(1974). The Act authorizes civil actions in federal court to compel compliance
with the Act and, in the case of "intentional or willful" violations,
to award
damages. See 5 U.S.C. @ 552a(g)(1), (4).
Aquino contends that evidence collected by the Army CID did not justify its
creating an investigation report titled under his name and that those involved
with the investigation were motivated to remove him from the Army because he is
the founder of the Temple of Set, a satanist religion. Because, he argues, the
Army did not have probable cause to link him with the crimes described in the
report, the report should [**6] be amended and his name deleted from its
caption because the information is not "accurate, relevant, timely, or
complete," as required by 5 U.S.C. @ 552a(d)(2).
The Secretary contends that Aquino cannot proceed under the Privacy Act because
the records that Aquino seeks to amend are criminal investigation records which
are exempt from the Act under 5 U.S.C. @ 552a(j)(2).
The Privacy Act authorizes agencies to exempt from many of its provisions,
including those applicable here, criminal investigative record systems
maintained by the agency or a "component" thereof. The record systems
must be
"maintained by an agency or component thereof which performs as its
principal
function any activity [*142] pertaining to the enforcement of
criminal laws"
and must consist of "information compiled for the purpose of a criminal
investigation." See 5 U.S.C. @ 552a(j)(2). To implement its election to
exempt
criminal investigative record systems, the agency must promulgate rules to do so
and give reasons why the systems are to be exempted. See 5 U.S.C. @ 552a(j).
The Army has promulgated a rule, 32 C.F.R @ 505.5(e)(r), to exempt the CID's
system of records known as the Criminal Investigation [**7] and Crime
Laboratory Files which includes reports of investigations. The rule applies to
"all portions of this system of records which fall within 5 U.S.C. @ 552a
(j)(2)." The rule also sets forth the reasons for the exemption:
Access might compromise on-going investigations, reveal classified information,
investigatory techniques or the identity of confidential informants, or invade
the privacy of persons who provide information in connection with a particular
investigation.
See 32 C.F.R @ 505.5(e)(r)(4)(b).
Aquino argues that the exemption may be given effect only if the Army
promulgates rules which would require it to give, on a case by case approach,
reasons for exempting each document or set of documents which it chooses to
include within the exemption. In short he argues that documents must be
processed individually in a manner specified by rule such that each time an
exemption is invoked, an authorized reason for the exemption must be given. In
support of his argument he cites Doe v. FBI, 936 F.2d 1346, 1353 (D.C. Cir.
1991). In that case the court was presented with the problem, not present here,
of providing a method by which the FBI could protect [**8] exempt records
which
were contained in non-exempt files. The FBI had an employment application file
with respect to Doe, which contained criminal investigation records of Doe. The
court stated, "The critical question, then, is whether the FBI's
investigatory
information on Doe lost its exempt status when it was subsequently used, in
altered form, for a non-law enforcement purpose," i.e., to process an
employment
application. 936 F.2d at 1356. The court remanded the case to the district court
to determine whether the cumulative burden to the FBI from processing amendment
requests, one of the FBI's reasons for exemption, applied to non-law enforcement
records containing law enforcement information as a class. Id. at 1358. We are
not presented with any of those issues in this case.
While we can understand that Aquino would want a more individualized evaluation
of his file to justify the CID's claim of exemption, particularly when he
believes that an investigatory report is inaccurate, we do not think that the
Privacy Act was intended to provide an amendatory procedure for records about
investigations into violations of the criminal laws. The Army [**9]
effectively promulgated rules to exempt criminal investigatory files, and Aquino
makes no contention that his records are not contained within the "system
of
records" exempted. Section 552a(j) provides that any agency may promulgate
rules
"to exempt any system of records within the agency" from specified
Privacy Act
provisions if the agency
includes in the statement required under@ 553c of this title [requiring notice to interested persons giving them an opportunity to participate in the rule
making], the reasons why the system of records is to be exempted from a
provision of this section.
(emphasis added).
This the agency has done. Aquino does not suggest that the
rule-making process was defective. Nor does he contend that the reasons stated
by the rule are not adequate. Aquino's principal complaint centers on his
contention that the investigation itself was improperly motivated and that
information reported was in some respects false, but he does not controvert the
authenticity of the records or the fact that a criminal investigation was
conducted. In these circumstances, we cannot conclude that a statute aimed at
protecting the privacy of records can be made the vehicle [**10] to
challenge
whether an underlying criminal investigation was properly motivated. It is
sufficient for the Privacy Act exemption that the records are [*143]
authentic
and were generated in connection with the CID's investigation into a possible
violation of the criminal law based on information sufficient to support at
least "a colorable claim" that the subject committed the violation.
Cf. Pratt v. Webster, 218 App. D.C. 17, 673 F.2d 408, 421 (D.C. Cir. 1982) (interpreting 5
U.S.C. @ 552(b)(7) (1976) to require that an agency "establish that its
investigating activities are realistically based on a legitimate concern that
federal laws have been or may be violated").
Because we conclude that the files in this case were generated for the purpose
of a law enforcement investigation by a component of the Army, the CID, whose
primary purpose it was to investigate violations and that such files were
exempted by regulation promulgated under @ 552a(j) of the Privacy Act, the
refusal by the CID to amend those files cannot give rise to a civil action
under@ 552a(g)(1)(a).
III.
Aquino also sued under the Administrative Procedure Act to review the
Secretary's decisions to title an investigatory [**11] report with his
name and
refuse to amend it. We are in some doubt about whether an action to compel the
amendment of documents under the Administrative Procedure Act is available when
Congress provides specifically for that type of suit under the Privacy Act. Cf.
Block v. Community Nutrition Inst., 467 U.S. 340, 345-48, 81 L. Ed. 2d 270, 104
S. Ct. 2450 (1984) (rejecting Administrative Procedure Act (APA) review of milk
marketing orders in suits by consumers because extensive non-APA statutory
scheme of review implicitly precludes them). We need not decide this issue,
however, because we agree with the district court that the decisions meet the
applicable standard under the Administrative Procedure Act.
Although the decisions to investigate and subsequently to title a report of the
investigation in Aquino's name fall within the prosecutorial discretion of the CID, the decision not to amend the title block constitutes informal
adjudication. We therefore agree with the parties and the district court that
the appropriate standard of review under the Administrative Procedure Act is
whether the decision was "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law." [**12] See 5 U.S.C. @
706(2)(A) (1988);
Duke Power Co. v. United States Nuclear Regulatory Comm'n, 770 F.2d 386, 389
(4th Cir. 1985) (per curiam). Under this standard, "'The court must
consider
whether the decision was based on a consideration of the relevant factors and
whether there has been a clear error of judgment.'" See Hutto Stockyard,
Inc. v.
United States Dep't of Agric., 903 F.2d 299, 307 (4th Cir. 1990) (quoting
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 28 L. Ed.
2d 136, 91 S. Ct. 814 (1971)).
Under the applicable Army regulations, the CID names an individual as a suspect
in the title block of a report of investigation of a crime if there is
"probable
cause to title," which exists when "considering the quality and
quantity of all
available evidence, without regard to its admissibility in a court of law, the
evidence points toward the commission of a crime by a particular person . . .
and would cause a reasonably prudent person to believe that the person. . . committed the crime." CID Reg. 195-1, Criminal Investigation: CID
Operations,
Glossary-4 (November 1, 1986) (as amended April 1, 1989). Generally, to amend a
report [**13] an individual must adduce "new, relevant, and material
facts that
are determined to warrant revision." Army Reg. 195-2, Criminal
Investigation
Activities, para. 4-4b (Oct. 30, 1985). More particularly, to remove the
individual's name from the title block the individual carries the "burden
of
proof" that"probable cause [as defined by regulation] does not exist
to believe
that the individual committed the offense for which titled as a subject."
Id.
In its initial decision to include Aquino in the title block of the report of
investigation, the CID relied principally upon the testimony of CPT
Adams-Thompson's daughter that "Mikey" had sexually molested her, on
her
identifications of Aquino as"Mikey" and of the Aquinos' apartment
[*144]
building as the location of the alleged crime, and on other evidence from
Aquino's apartment partially matching the child's descriptions of the locale of
the crime. The Army denied Aquino's request to amend the report on the basis
that Aquino's "evidence of alibi," the testimony of the men working in
the
Aquino's apartment at the time of the alleged offenses, was not persuasive. The
Army's considerations in both decisions clearly were relevant and their
[**14]
factual bases not so wholly unreliable as to render either decision arbitrary
or capricious.
Aquino contends that both decisions to title a report in his name and not to
amend were tainted by consideration of the irrelevant factor of his satanist
religious beliefs. He points to a letter dated October 26, 1988, from an aide to
U.S. Senator Jesse Helms to the Secretary of the Army expressing distress that
satanists, and Aquino in particular, were members of the Army Reserves. In a
follow-up letter, dated January 9, 1989, Senator Helms himself argued strongly
for removing Aquino from the Army. Aquino also notes that on November 29, 1988,
certain high-level officers within the Army met to discuss his case in response
to letters from the Senator's aide and others. And finally, the record contains
an unattributed document suggesting that the continuation board deciding whether
Aquino could continue serving in the Army Reserves learned that his records had
been "flagged." n2
[n2 In appeal Aquino seeks to "supplement the record" with further evidence
that, he argues, demonstrates anti-satanist bias on the part of an Army officer
involved in the investigation of his case. Because we review appeals from
summary judgment only upon the record available to the district court, see Fed.
R. App. P. 10(a), we deny his request to supplement the record and refuse to
consider the offered additional materials.]
[**15] This evidence supports the finding, which we must accept on review of summary
judgment, that some pressure was put on the top of the Army to remove Aquino. It
does not, however, require the inference that this pressure was communicated
down the ranks to the CID, which conducted the investigation and created the
report of investigation, or was otherwise a factor in the investigation. Indeed
the record contains strong evidence to the contrary. The report presented at
the high-level meeting on November 29, to which Aquino alluded, recommended,
"Do not issue 'top down' guidance to [Aquino's command or the continuation board] .
. . . Allow CID to continue its inquiry; allow the local command to determine
whether charges should be preferred and an Article 32 investigation
conducted."
More significantly, the Region Judge Advocate at the Presidio developed the plan
for continuing the investigation of the Aquinos prior to October 17, 1988, when
the letter from Senator Helms' aide was written. Moreover, the CID reached its
decision"to initiate this [report of investigation]" on November 21,
1988,
before the meeting at which the high-level officers of the Army decided how to
respond to the [**16] pressure from Senator Helms' aide. The
evidence of
political pressure advanced by Aquino does not support his conclusion that it
precipitated the investigation about him.
We cannot conclude from the record before us that the Army's decision to title
an investigative report with Aquino's name or its subsequent decision not to
remove his name from the title block of the report were the result of other than
relevant considerations. Since it is not the role of the courts to second-guess
an agency's decision, absent a clear error of judgment, not present in this
case, we conclude that the district court acted properly.
The decision of the district court granting the Secretary's motion for summary
judgment and denying Aquino's is accordingly
AFFIRMED.