MEMORANDUM IN SUPPORT OF DEPENDANT'S MOTION FOR JUDGMENT ON THE RECORD

STATEMENT OF THE CASE

This is an action brought pursuant to the Privacy Act of 1974, 5 U.S.C. S 552a(g), in which plaintiff alleges that the U.S. Army Criminal Investigation Command (CID) has refused to amend a Report of Investigation (ROI) which states that plaintiff was the subject of an investigation for sexual child abuse and related crimes. Plaintiff seeks to remove his name from the title block of the investigation, he seeks damages for the alleged willful and intentional misconduct of the Army for refusing to accurately maintain this record, and he seeks attorney fees and costs. Defendant United States Army seeks dismissal of plaintiff's Privacy Act complaint and judgment on the administrative record denying plaintiff's requests. First, plaintiff has failed to state a claim under the Privacy Act because these criminal law enforcement records are exempt from the amendment provisions of the Act. Second, plaintiff has failed to carry his burden of showing that defendant acted arbitrarily or capriciously in refusing to delete plaintiff's name from the report. And finally, even if plaintiff's claim was reviewable under the Privacy Act, it should be denied because plaintiff has failed to show that the report is inaccurate. Consequently, the court should not award damages, attorney fees or costs.

STATEMENT OF THE FACTS

1. Plaintiff Michael A. Aquino is a Lieutenant Colonel (LTC) in the United States Army Reserve. His name appears in the title block of a CID report of investigation (ROI) for indecent acts with a child and related offenses. Government Exhibit (G.E.) D at 1-4.

2. Kinsey Marie Adams-Thompson appears in the victim block of the same report. G.E. D at 1-4. Kinsey is the daughter of Captain (CPT) Larry Adams-Thompson and Michelle Adams-Thompson. Kinsey was born on September 1, 1983, and attended the Child Development Center (CDC) located on-post at the Presidio.

3. On January 14 and 15, 1987, Kinsey and her parents were interviewed by a Federal Bureau of Investigation (FBI) agent about allegations of child abuse at the CDC. (F1) G.E. G-2 (FBI Interviews) at 1-3. On January 20, Kinsey was interviewed by Doctor Deborah L. Hickey, M.D., a child psychiatrist and Army doctor (LTC) at the Presidio. Kinsey told LTC Hickey that "Mr. Gary" had sexually molested her by touching her genitals and putting his penis in her mouth. Id. at 4-5.

4. On August 12, 1987, Kinsey was at the Presidio Post Exchange (PX) with her parents. At about 4:00 P.M., as they walked through the store, Kinsey ran to her parents, frightened, and told them that she had seen "Mikey" from "Mr. Gary's house." Kinsey's mother picked her up and Kinsey pointed at plaintiff, LTC Michael Aquino, and identified him as "Mikey." Kinsey said she was afraid and wanted to leave the store. CPT Adams-Thompson recognized LTC Aquino from his prior assignment at the Presidio. (F2) He took Kinsey from Mrs. Adams-Thompson and carried her out of the store to the parking lot. When the Aquinos exited the store, Kinsey identified Mrs. Aquino as "Shamby," another person who she saw with "Mr. Gary." After returning home Kinsey said that she was afraid that "Mikey" and "Shamby" would come to her home and hurt her. Id. at 7-10.

5. FBI Agent Foreman interviewed Kinsey at 9 P.M. the next day, August 13th. She told him that "Mikey wears Army clothes like my daddies [sic]", and that "Mikey" put his penis into her mouth, bottom, and vagina just like "Mr. Gary." Kinsey also told FBI Agent Foreman that she went with "Mr. Gary" to his house and "Mikey" and "Shamby" were there. Id. at 9. Kinsey told her mother that "Mikey" was the "blood man," because he had put blood on her and licked it off. Id. at 8. Mrs. Adams-Thompson also recalled that Kinsey had described "Mikey" as having "eyebrows that went up." Id. at 7. 6. Plaintiff's appearance is distinctive. His eyebrows curl upwards, his hairline is marked by a prominent widow's peak, and his black hair is combed straight back. See photographs, G.E. E-48 and G.E. E-5. Plaintiff acknowledges that this is his appearance. G.E. E-5, para.10. In addition to the identification at the post exchange, Kinsey identified plaintiff out of a five-person photo line-up and video line-up. G.E. D-9 at 100.

7. After Kinsey's interview, she was taken to the vicinity of plaintiff's house, which is about two miles, a seven-minute drive, from the CDC. G.E. D-5 (Crime Scene Examination) at 65. Accompanied by her mother and two investigators, and starting about one and a half blocks from plaintiff's house, Kinsey walked down the street where plaintiff lives. Upon approaching plaintiff's house, Kinsey appeared frightened and asked to be held by her mother. After being picked up she continued to stare at the front of XXXX Leavenworth Street, where plaintiff lived. Kinsey said that the area was familiar and she had been there before. When asked if this was "Mr. Gary's" house, she answered yes, and stated that "Mr. Gary" had driven her there, where she met "Mikey" and "Shamby". G.E. E-1 (SA Potter's Report); G.E. D-4 (Interview of Victim) at 59.

8. CPT Adams-Thompson reported the PX identification and Kinsey's statements to the San Francisco Police Department (SFPD) and, based on this evidence, a magistrate determined that probable cause existed to issue a search warrant for the top apartment at XXXX Leavenworth Street, plaintiff's residence. G.E. D-5 (Crime Scene Examination) at 65, G.E. E-5 (SFPD Incident Report dated August 14, 1987, following Aquino statement dated January 4, 1988). During the search the FBI photographed the interior of the apartment and some weapons, masks, and ceremonial items observed there. G.E. E-3. The three other apartments in the house and the house next door at XXXX Leavenworth Street were not searched, although later investigation disclosed that plaintiff owned both buildings. G.E. D-19 at 119.

9. The photographs were shown to Kinsey on October 15, 1987. Her reactions are recorded in G.E. G-2 at 11-14. Although Kinsey's reactions to the photographs are not conclusive, the photographs do show a number of items that corroborate Kinsey's and other children's descriptions of the house where they were taken: (1) masks; (2) guns; (3) toy animals or dinosaurs; (4) a lion picture on the wall and lions on the Egyptian throne; (5) a computer; (6) cameras; (7) a black room with soft walls; and (8)a robot. G.E. E-38 (Excerpts of Kinsey's Medical Records) at 31, 32, 38; G.E. D-14 at 109; G.E. D-2 at 22.

10. One of the items seized by the SFPD during the search was a notebook. G.E. D-5 at 65. That notebook contained the name "Mike Todo." G.E. D-14 at 109. Kinsey and another child mentioned "Todo" as one of the persons at "Mr. Gary's" house. G.E. D-19 at 120. During an April 7, 1987 interview with MAJ Hickey, months before the PX identification, Kinsey stated that "Shamby" and "Sassy" were the same person, and that "Sassy" was "Todo's" girlfriend. G.E. D-2 at 21, G.E. E-38 at 31 (as numbered at page bottom). In the days that followed, the San Francisco Police Department and the FBI continued as the lead investigative agencies.

11. On January 3, 1988, plaintiff made a written sworn statement denying the allegations against him and preferring sworn charges against CPT Adams-Thompson for conduct unbecoming an officer. He charged that CPT Adams-Thompson made false statements by reporting the Kinsey's allegations of child abuse, and that CPT Adams-Thompson mailed an obscene postcard to plaintiff (a picture of a male transvestite stating "Blow it out your ass. You pompous jerk!").G.E. E-5. Plaintiff later withdrew the charge regarding the postcard after plaintiff learned that CPT Adams-Thompson and his family had already moved to Hawaii before the date the postcard was mailed. G.E. D-1 at 10.

12. Based upon these sworn charges against CPT Adams-Thompson and other statements made by plaintiff as the investigation continued, CID investiated plaintiff for false swearing. Specifically, plaintiff falsely stated that Kinsey was two years old in October 1986 when she was in fact three. G.E. E-5; G.E. D-1 at 10...Plaintiff admitted that he incorrectly stated Kinsey's age, but claimed it was a mistake. G.E. D-6 at 72. Plaintiff also stated that he had "never used or been known by the nickname "Mikey"." G.E. D-5 at 2. In addition to the children's identifications of him as "Mikey," however, Mr. Anton LaVey, a friend and associate, referred to plaintiff as "Mikey." G.E. D-2 at 37; G.E. D-7 at 85. Plaintiff made other statements controverted by evidence, including that only three people had access to the security code to his upper apartment, and that he had never been to the CDC. Plaintiff's Exhibit (P.E.) 2 (Defendant's Response to Interrogatory 12); G.E. D-2 at 28-37.

13. On August 12, 1988, the San Francisco district attorney's office closed its investigation of child abuse at the Presidio CDC. It filed no charges against plaintiff or anyone else. G.E. E-6 at 7. In September 1988, CID investigators met with representatives from the SFPD, the local district attorney's office, the U.S. Attorney's Office, and the FBI to discuss the status of the investigation. P.E. 2 (Defendant's Response to Interrogatory 15) at 27-30.

14. On October 17, 1988, at the request of CID Special Agent (SA) Petaluma, the local Army investigator, MAJ Mark Harvey drafted an Investigative Plan for plaintiff's case. The memorandum discussed plans for continuing the investigation of plaintiff in light of the completion of the SFPD investigation and the perceived weaknesses in that investigation. G.E. G-3 (CID Investigative Plan). On October 26, 1988, Wayne Boyles III, Legislative Assistant to Senator Jesse Helms, wrote a letter to the Secretary of the Army complaining about plaintiff's appearance on a Geraldo Rivera television show about Satanism and witchcraft. P.E. 1, Exhibit G. The CID investigation of plaintiff was underway before any involvement by Senator Helm's office.

15. On April 7 and 8, 1989, the CID interviewed Kinsey. After viewing a photographic line-up, she identified plaintiff as "Mikey," but did not pick out Mrs. Aquino as "Shamby". After viewing a video line-up Kinsey again identified plaintiff, and again did not identify Mrs. Aquino as "Shamby" G.E. D-9 (Identification Line-ups) at 100-101. Kinsey stated that "Shamby" and "Mr. Gary" took her to "Mr. Gary's house," and that "Mikey" was there. She described the house as blue-gray in color, the same color as plaintiff's house at XXXX Leavenworth Street. G.E. D-4 at 59-60.

16. On May 11, 1989, Kinsey was reinterviewed by CPT Boomer and MAJ Harvey, judge advocates at the Presidio. She said that "Mikey" told her to touch "Mr. Gary's" penis and that "Mikey" forced her to stay in the room with soft walls, and blocked the door so she could not leave. She stated that she had found the house with FBI Agent Foreman and that the house was blue and gray. Id. at 60-61.

17. On May 15, 1989, CID agents and legal advisors met with LTC Craig Schwender, Staff Judge Advocate for the Presidio, and viewed the investigation and evidence with him. LTC Schwender opined that there was probable cause to title LTC Aquino for the offenses of indecent acts with a child, sodomy, conspiracy, kidnapping, and false swearing.(F3) G.E. D-16 at 113.

18. The final Report of Investigation (ROI) was issued on August 11, 1989. G.E. D at 1-4. On January 4, 1990, MAJ Harvey spoke with the staff judge advocate at Fort Leonard Wood, MO, to determine what action the Commander of Fort Leonard Wood had decided to take in the case. The commander took no action against plaintiff as a result of the investigation. G.E. B at 3.

19. On January 30, 1990, plaintiff appealed the titling determination to Major General (MG) Eugene L. Cromartie, Commanding General, U.S. Army Criminal Investigation Command, pursuant to Army Regulation 195-2.(F4) He asserted an alibi defense: that he was not in San Francisco on the dates of the alleged offenses. He also alleged there was insufficient evidence of some of the offenses; that the titling was a result of improper political influence from Senator Helms; that there was improper conduct by members of the Judge Advocate General's Corps, the Office of the Surgeon General, and the CID; that the SFPD and FBI investigations resulted in no prosecutions; that the CID investigation was stale; and that the statute of limitations had run and no charges were contemplated by the command.

(Edit note-No. 20 is missing)

21. Plaintiff's amendment request was reviewed internally by the CID Staff Judge Advocate, and by the Chief of the Criminal Law Division of the Office of The Judge Advocate General, Colonel (COL) Francis A. Gilligan. COL Gilligan recommended deleting plaintiff as a subject for maltreatment of a subordinate, noncompliance with UCMJ article 30, and conduct unbecoming an officer. He also recommended deleting Mrs. Aquino as a subject for all offenses. G.E. C (Review of Amendment Request).

22. The Commanding General of the CID adopted COL Gilligan's recommendations on September 28, 1990. Plaintiff remains titled for indecent acts with a child, sodomy, conspiracy, kidnapping, indecent acts, and false swearing. G.E.B (lst Supplemental CID Report of Investigation) at 1.

23. Plaintiff filed his complaint in this court on November 15, 1990. The parties agree that the exhibits submitted to the court constitute the administrative record upon which the joint Motion for Judgment on the Record may be decided.

24. CID reports of investigation (ROI) are part of a system of records published in the Federal Register, in accordance with the Privacy Act, to inform the public of records the Army maintains. 49 Fed. Reg. 49,139 (December 18, 1984), 32 C.F.R. 505.5, 5 U.S.C. S 552a(e)(4). The systems notice specifies that CID ROIs are maintained to conduct criminal investigations and crime prevention activities. As such, 5 U.S.C. S 552a(j)(2) allows defendant to promulgate rules exempting CID ROIs from certain parts of the Privacy Act, which defendant has done. 49 Fed. Reg. 40,589 (Oct. 17, 1984), 32 C.F.R. S 505.5.

25. Army Regulation 340-21 implements 32 C.F.R. S 505.5 and exempts CID ROIs from the amendment provisions of the Privacy Act. (F5) Amendment requests are considered under Army Regulation 195-2, not under the Privacy Act.

26. Army Regulation 195-2 provides the exclusive means for handling requests to amend CID ROIS. Its amendment procedures are not part of the Privacy Act. The pertinent parts of the regulation provide that the individual has the burden of proof to substantiate the request. Requests to delete a person's name from the title block are granted if probable cause does not exist to believe that the individual committed the offense for which titled as a subject.(F6)

27. The legal standard for placing a person's name in the title block as the subject of an investigation, referred to as "titling," is set out in CID Regulation 195-1. It states that probable cause to title exists when the available evidence would cause a reasonably prudent person to believe that the person being investigated committed the crime.(F7)

ARGUMENT

I. Plaintiff Has Failed to State a Claim Under the Privacy Act Because CID ROIs Are Exempt From the Amendment and Civil Liability Provisions of the Act.

Under the Privacy Act's general exemption provision, the head of an agency may exempt law enforcement records from portions of the Act. 5 U.S.C. S 552a(j)(2). The Secretary of the Army has promulgated rules exempting CID reports of investigation from the access, amendment, and civil liability provisions of the Privacy Act, and explained why CID ROIs are exempt from these provisions of the Act. 32 C.F.R. S 505.5, ID-A0508.11aUSACIDC. The Fourth Circuit and other jurisdictions have recognized the S 552a(j)(2) exemption for law enforcement records. Ryan v. United States, 595 F.2d 954, 956 (4th Cir. 1979) (Justice Department regulations exempted system of records from access and civil liability provisions of Privacy Act); Wentz v. Department of Justice, 772 F.2d 335, 337 (7th Cir. 1985) (Justice Department regulations exempted system of records from amendment provisions of Privacy Act); Fendler v. United States Parole Commission, 774 F.2d 975 (9th Cir. 1985) (court properly dismissed Privacy Act claim to amend records exempt as law enforcement records under 552a(j)(2) and implementing regulations). Consequently, plaintiff has no Privacy Act claim.

II. Defendant Did Not Act Arbitrarily or Capriciously in Refusing to Remove Plaintiff's Name From the Title Block of the ROI.

The Army reviewed plaintiff's request to amend the CID ROI under AR 195-2, *not* under the Privacy Act. Thus, plaintiff's only remaining remedy is under the Administrative Procedure Act (APA), 5 U.S.C. 702. By its terms, the APA does not waive sovereign immunity from claims for monetary relief.(F8) See, e.g., Rhodes v. United States, 760 F.2d 1180, 1184 (llth Cir. 1984); Ghandi v. Police Dept., 747 F.2d 338, 343 (6th Cir. 1984); Doe v. Civiletti, 635 F.2d 88, 94 (2d Cir. 1981); Jaffe v. United States, 592 F.2d 712, 718-19 (3rd Cir.), cert. denied, 441 U.S. 961 (1979). At most, plaintiff is entitled to injunctive-type relief based on a review of the Army's refusal to delete his name from the CID ROI title block. Plaintiff seeks de novo review, but plaintiff is not entitled to de novo review. De novo review is provided by the Privacy Act (F9) but amendment requests of titling determinations are exempt from the Privacy Act. De novo review under the APA is also not appropriate.(F10) In this case, the court should determine whether the Army's action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. S 706(2)(A); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 414 (1971). Moreover, this is the standard of review courts traditionally apply to the discretionary decisions of military officials. Fairchild v. Lehman, 609 F. Supp. 287 (E.D. Va. 1985), affld, 814 F.2d 1555 (Fed. Cir. 1987). See also Miller v. Lehman, 801 F.2d 492, 496 (D.C. Cir. 1986); Smith v. Marsh, 787 F.2d 510, 512 (10th Cir. 1986), Johnson v. Reed, 609 F.2d 784 (5th Cir. 1980). Under the "arbitrary and capricious" standard of review, the court should afford considerable deference to Army decision makers and limit its inquiry to determining whether the decision challenged was based on relevant factors and whether there was a clear error in judgment. Heisig v. United States, 719 F.2d 1153 (Fed. Cir. 1983): Sidoran v. Commissioner, 640 F.2d 231 (9th Cir. 1981) The facts in the administrative record, particularly those cited in defendant's Statement of the Facts, support the conclusion that the CID decision not to remove plaintiff's name from the title block was not arbitrary or capricious. Kinsey made a certain, reliable identification of plaintiff in a non-suggestive setting, while shopping with her parents at the post exchange. She exhibited the fear and terror that one expects upon recognition of a threat or source of harm. Her earlier statements to the child psychiatrist and her mother about "Mikey" and "Shamby," persons until then unidentified, support the validity of the identification. Her description of plaintiff's facial features and her subsequent identification from a photo and video line-up also corroborate the identification at the PX. Kinsey identified plaintiff's house as the place where "Mr. Gary" took her from the Child Development Center, and where she saw "Mikey" in "Army clothes" like her father's. She also described the house's blue-gray exterior color. The photographs taken in plaintiff's apartment show masks, guns, toy animals, and ceremonial items that are similar to things described by Kinsey and other children. A notebook from plaintiff's apartment contained the name "Mike Todo," and "Todo" was one of the persons present at "Mr. Gary's" house. The evidence against plaintiff is credible and substantial. Army decision-makers did not act arbitrarily and capriciously or abuse their discretion in relying on this evidence to determine that a reasonably prudent person would believe that plaintiff had committed the offenses for which he was titled. That plaintiff has a different version of the events is irrelevant.

III. Even If Reviewable Under the Privacy Act, Plaintiff's Claims Should Not Be Granted.

As argued above, plaintiff fails to state a claim under the Privacy Act; therefore, the court should dismiss his claim. But, assuming arguendo that plaintiff's claims are reviewable under the Privacy Act, plaintiff still cannot prevail. Plaintiff seeks relief under the Act in three forms. First, he complains that the Army improperly refused to amend records pertaining to him by not deleting his name from a report of investigation for child abuse. Second, he seeks damages for this refusal to allegedly accurately maintain his records. Third, he seeks attorney fees and costs. Even if cognizable under the Privacy Act, probable cause exists to name plaintiff in the title block of this ROI; consequently, the court should not expunge plaintiff's name from the report, and plaintiff is not entitled to damages, attorney fees, or costs.

A. Plaintiff May Challenge Facts, But Not subjective Judgments Such As a Titling Determination.

Plaintiff is not entitled to relief because the proposed amendment pertains to the accuracy of subjective judgments and determinations, not to the accuracy of factual, historical data. Belvins v. Plummer, 613 F.2d 767 (9th Cir. 1980); Turner v. Department of the Army, 447 F. Supp. 1207 (D.D.C. 1978), aff'd, 593 F.2d 1372 (D.C. Circ. 1979). The determination of whether to list a person's name in the title block is a subjective, professional judgment, arrived at by assessing whether there is probable cause to believe that the person committed the offenses reported. The Sixth Region CID legal advisor, MAJ Mark Harvey, reviewed the investigation and authored the legal review segment of the report. G.E. D-2 at 16-57b. After discussing the evidence and reviewing the investigation, the Presidio staff judge advocate, LTC Craig Schwender, opined that probable cause existed to place plaintiff's name in the title block of the ROA. G.E. D-16 at 113. After plaintiff requsted that the report be amended to delete his name, the report was carefully reviewed by COL Francis Gilligan, the Chief of the Criminal Law Division in the Office of the Judge Advocate General. COL Gilligan recommended that plaintiff remain titled for indecent acts with a child and the offenses related to it, but also recommended that plaintiff be deleted as a subject for some other offenses and that plaintiff's wife be deleted from the title block. G.E. C. The commander of the CID, Major General Cromartie, concurred with COL Gilligan's recommendations and plaintiff remained titled. G.E.D at 2. The Privacy Act is not meant to provide a basis for collateral attacks on such judicial or quasi-judicial determinations recorded in agency files. Kennedy v. Andrus, 459 F. Supp. 240 (D.D.C. 1978) Only if all the facts underlying such professional judgments have been thoroughly discredited should the agency be required to revise or expunge it's prior professional judgment. R.R. v. Department of the Army, 482. F. Supp. 770 (D.D.C. 1980). Plaintiff has not thoroughly discredited the facts in this case. The facts set out in the administrative record show that the report of investigation pertaining to plaintiff is properly maintained.

B. Probable Cause exists to Name Plaintiff in the Title Block of the ROI

Plaintiff claims that the Army's refusal to remove his name from the title block of this child abuse criminal investigation violates the Privacy Act's requirement to maintain a record with "such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual. 5 U.S.C. 552a(e) (5). The Privacy Act provides that the court shall determine this matter de novo, 5 U.S.C. 552a(g) (2) (a); however, the burden of proof is on the individual. Mervin v. FTC, 591 F.2d 821, 827 (D.C. Circ. 1978). The primary issue is whether probable cause exists to believe that plaintiff committed the crimes for which he is named in the ROI. Plaintiff sought to amend his records in accordance with the agency procedures. AR 195-2, para 4-4. Under those procedures, plaintiff's name should be deleted from the title block only if the court determines that probable cause does not exist to believe that plaintiff committed indecent acts with a child and the related offenses named in the report. AR 195-2 para. 4-4. If probable cause does exist then the record is maintained with the accuracy "necessary to assure fairness." Doe v. United States, 821 F.2d 694, 699 (D.C. Cir. 1987). As discussed earlier, a review of the evidence in the administrative record and the facts set out in defendant's Statement of the Facts shows that probable cause exists to title plaintiff for indecent acts with a child, sodomy, conspiracy, kidnapping, indecent acts, and false swearing.

C. Plaintiff Is Not Entitled To Damages

Plaintiff seeks damages for the Army's alleged failure to accurately maintain his record, which allegedly resulted in an adverse determination against him. 5 U.S.C. 552a(g)(1) and (4). To bring a damages action under 552a (g) (1) plaintiff must show that (1) an inaccurate record (2) proximately caused (3) an adverse determination concerning him. See, E.g., Johnston v. Horne, 875 F.2d 1415, 1422 (9th Cir. 1989); Hubbard v. EPA, 809 F.2d 1, 7-10 (D.C.Cir. 1986); Hewitt v. Grabicki, 794 F.2d 1373, 1379 (9th Cir. 1986); Clarkson v. IRS, 678 F.2d 1368, 1377 (11th Cir. 1982) (citing Edison v. Department of the Army, 672 F.2d 840, 845 (11th Cir. 1982). Additionally, an agency must have acted in an "intentional or willful" manner for a damages action to succeed. 5 U.S.C. 552a(g) (4). Only after meeting all of these criteria does the amount of damages become relevant. Plaintiff has not met these criteria and is not entitled to damages.

D. Plaintiff Is Not Entitled to Attorney Fees or Costs

In an amendment claim under the Privacy Act, the court may, in its discretion, assess attorney fees and litigation costs reasonably incurred, if the plaintiff "substantially prevails." 5 U.S.C. 552a(g)(2) (B). In a damages claim under the Privacy Act, the costs and reasonable attorney fees are recoverable by the "prevailing plaintiff." 5 U.S.C. 552a(g) (4) (B). Based on the foregoing arguments, plaintiff has not substantially prevailed in his amendment request and has not prevailed in his damages claim; therefore, the court should not award attorney fees or litigation costs.

IV. CONCLUSION

For the foregoing reasons, the court should dismiss plaintiff's Privacy Act claim and deny plaintiff's requests for amendment, damages, attorney fees and litigation costs under the Privacy Act. The court should find the title block of the report of investigation was neither arbitrary nor capricious under the Administrative Procedure Act. Consequently, plaintiff is entitled to no relief.

Footnotes

F1. That investigation centered on Mr. Gary Hambright, a CDC employee. Plaintiff was not a suspect in the investigation.

F2. (Plaintiff and his wife were on leave at their home in San Francisco, before reporting to plaintiff's next assignment in St. Louis. Plaintiff had been assigned to the Presidio from August 10, 1981 until August 31, 1986. G.E. E-19.

F3. LTC Aquino was also titled for non-compliance with Uniform Code of Military Justice (UCMJ) article 30, 10 U.S.C. S 830 (1982), but this offense was later deleted. LTC Schwender also opined that there was sufficient evidence to title Gary Hambright for sexual abuse, conspiracy, and kidnapping, and to title Mrs. Aquino for sexual abuse, conspiracy, and kidnapping. G.E. F(Request to Amend Titling Determination); P.E. 1.

F4. Army Reg. 195-2, Criminal Investigation Activities, para. 4-4b (October 30, 1985)

F5. Army Reg. 340-21, The Army Privacy Program, para. 2-10e (July 5, 1985) provides: USACIDC reports of investigation (records in systems notices A0501.08e Informant Register, A0508.llb Criminal Information Reports and Cross Index Card Files, and A0508.25a Index to Criminal Investigative Case Files) have been exempted from the amendment provisions of the Privacy Act. Requests to amend these reports will be considered under AR 195-2 by the Commander, U.S. Army Criminal Investigation Command. Action by the Commander, U.S. Army Criminal Investigation Command, will constitute final action on behalf of the Secretary of the Army under that regulation.

F6. Army Reg. 195-2, Criminal Investigation Activities, para. 4-4b (Oct. 30, 1985) provides:

b. Amendment of CID reports. CID reports of investigation are exempt from the amendment provisions of the Privacy Act and AR 340-21. Requests for amendment will be considered only under the provisions of this regulation. Requests to amend CID reports of investigation will be granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report. The burden of proof is upon the individual. Requests to delete a person's name from the title block will be granted if it is determined that probable cause does not exist to believe that the individual committed the offense for which titled as a subject. The decision to list a person's name in the title block of a CID report of investigation is an investigative determination that is independent of judicial, non-judicial, or administrative action taken against the individual or the results of such action. Within these parameters, the decision to make any changes in the report rests within the sole discretion of the Commanding General, USACIDC. His decision will constitute final action on behalf of the Secretary of the Army with respect to this regulation.

F7. CID Reg. 195-1, Criminal Investigation: CID Operations, Glossary-4 (1 November 1986) (Cl, I April 1989) provides: Probable cause to title a person or an entity in a criminal investigation 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 or entity and would cause a reasonably prudent person to believe that the person or entity committed the crime. Probable cause must be distinguished from proof beyond a reasonable doubt, the latter being the evidentiary standard followed at criminal trials. The existence of probable cause to title is a determination made by the investigating organization.

F8. 5 U.S.C. S 702 provides in part: "An action in a court of the United States seeking relief other than money damages . . . shall not be dismissed . . . ."

F9. 5 U.S.C. S 552a(g)(2)(A).

F10. See 5 U.S.C. S 706(F). De novo review, or independent judicial factfinding, applies in only two limited circumstances. First, when agency action is adjudicatory in nature and factfinding procedures are inadequate. And second, when issues that were not before the agency are raised in a proceeding to enforce nonadjudicatory action. Citizens to Preserve Overton Park, 401 U.S. at 415; Camp v. Pitts, 438 U.S. 138, 142 (1973); Florida Power and Light Co. v. Lorion, 105 S. Ct. 1598, 1607 (1985). Plaintiff's suit does not seek enforcement of nonadjudicatory agency action; therefore, de novo review can only be had if the CID review of the amendment request was adjudicatory and the factfinding procedures are found to be inadequate. Because Army Regulation 195-2 does not mandate a hearing, the CID action on the amendment request does not fall within the APA definition of an adjudicatory proceeding. Serrano v. United States, 612 F.2d 525, 530 (Cl. Ct. 1979); International Telephone and Telegraph Corp. v. Local 134, 419 U.S. 428 (1975) (adjudication requires notice and hearing before administrative law judge). Furthermore, the adequacy of factfinding procedures is not the object of plaintiff's challenge. Accordingly, plaintiff may not obtain de novo review of the CID decision not to amend his titling determination.

F11. Despite plaintiff's contentions, this investigation was not a "witchhunt." Plaintiff was not targeted because of his religious beliefs. In fact, as plaintiff repeatedly points out in his voluminous submissions appended as part of the report of investigation, the Army has been aware of plaintiff's religious beliefs throughout his Army career and has not interfered with his religious practices. The sole reasons for this investigation and the CID decision to title plaintiff are the facts that point to plaintiff's sexual abuse of Kinsey Adams-Thompson.

F12. The fact that reasonable minds may differ over the conclusions reached does not mean that Army decision-makers considered inappropriate factors or made a clear error in judgment. See Motor Vehicles Mfrs. Ass'n. v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43 (1983); Benvenuti v.Department of Defense, 613 F. Supp. 308, 311-12 (D.D.C. 1985), aff'd, 802 F.2d 469 (Fed. Cir. 1986) (court should not substitute its judgment for agency's). Clearly, the decision of Army officials to retain plaintiff's name in the CID ROI title block was neither arbitrary nor capricious. Plaintiff's request to delete his name from the report of investigation must be denied.

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