Pierce v. Department of U.S. Air Force

• Decision Date: 21 December 2007
• Docket Number: No. 06-61050.,06-61050.
• Parties: Robert Earl PIERCE, Plaintiff-Appellant, v. DEPARTMENT OF THE UNITED STATES AIR FORCE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

512 F.3d 184

Robert Earl PIERCE, Plaintiff-Appellant, v. DEPARTMENT OF THE UNITED STATES AIR FORCE, Defendant-Appellee.

No. 06-61050.

United States Court of Appeals, Fifth Circuit.

December 21, 2007.

Michael Farrell (argued), Lindsay Green Watts, YoungWilliams, Jackson, MS, for Pierce.

Helina S. Dayries (argued), Catherine M. Maraist, Baton Rouge, LA, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before DAVIS, BARKSDALE and PRADO, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

In this appeal, Plaintiff-Appellant Robert Pierce ("Pierce") challenges the district court's summary judgment rendered against him and in favor of Defendant-Appellee Department of the Air Force (the "Air Force") concluding that the Air Force did not violate Pierce's rights under the Privacy Act of 1974, 5 U.S.C. § 552a(b) (the "Privacy Act"). The district court held that the documents at issue were not "records" contained within a "system of records" for purposes of the Privacy Act and granted summary judgment on that ground. We agree with the district court and affirm.

I.

In February 2001, Col. (Ret.) Joe Bryant ("Bryant"), a former pilot in the 186th Air Refueling Wing of the Mississippi Air National Guard, once stationed at the Key Field Air National Guard Base in Meridian, Mississippi, filed a complaint that alleged wrongful conduct and improprieties by several officers of his unit. Included in the complaint were allegations against Pierce.¹

In February 2003, Colonel Kenneth Emmanuel ("Emmanuel") was designated by the Air Force Inspector General to investigate some of Bryant's allegations, and he did so over a period of several months. On May 31, 2004, Emmanuel issued his findings in a Report of Investigation ("ROI"). Additionally, and pursuant to regulation, Emmanuel prepared a Summary Report of Investigation ("SROI"), a version of the ROI that omits names and personally-identifying information of individuals in the report. AIR FORCE INSTRUCTION (AFI) 90-301, §§ 2.61, 2.49 (January 30, 2001). In the SROI, Emmanuel did not name the officers against whom Bryant lodged his complaints (including Pierce). Instead, consistent with regulation guidance, he identified them by duty titles. Id. § 2.49, Figure 2.6 ("Do not use names in the SROI. Use duty titles . . . ."). Pertinently, Pierce was referred to in the SROI as C-26 Program Manager and Counterdrug Coordinator.²

In July 2004, Colonel Ronnie Rogers ("Rogers") took over and assumed the responsibility for closing the investigation of Bryant's allegations. In the course of closing the investigation, he determined that Bryant was a "complainant" per Air Force regulations. As a "complainant" for the allegations, Bryant was entitled to a final response letter and an SROI. Id. § 2.61.4 (Complainant "will receive a final response, in writing, with the findings of the investigation and a copy of the SROI (if available)."). On October 15, 2004, Rogers sent Bryant the final response letter and a copy of the SROI, in compliance with the Air Force regulations he considered applicable. After receiving the final response letter and the SROI, Bryant or his wife allegedly leaked information contained in those documents and informed the press that Pierce was the individual listed under the duty titles C-26 Program Manager and Counterdrug Coordinator. On October 22, 2004, The Meridian Star and The Clarion Ledger reported information from the final response letter and SROI and listed Pierce by name as a subject of the investigation.

Pierce filed suit against the Air Force alleging a violation of the Privacy Act. The parties later filed cross-motions for summary judgment. The district court held that the final response letter and SROI provided to Bryant were not records protected by the Privacy Act and dismissed the suit. Pierce now appeals.

II.

A. STANDARD OF REVIEW

We review a grant of summary judgment de novo, viewing all evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor. See Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir.2000). "Summary judgment is proper when the evidence reflects no genuine issues of material fact and the nonmovant is entitled to judgment as a matter of law." Id. (citing FED.R.CIV.P. 56(c)). "We may affirm a summary judgment on any ground supported by the record, even if it is different from that relied on by the district court." Lozano v. Ocwen Federal Bank, FSB, 489 F.3d 636, 641 (5th Cir. 2007) (quoting Holtzclaw v. DSC Commc'ns Corp., 255 F.3d 254, 258 (5th Cir.2001)) (internal quotation marks omitted).

B. DISCUSSION

To establish that an agency failed to comply with the Privacy Act, a plaintiff must demonstrate that: (1) the information is a "record" within a "system of records;" (2) the agency disclosed the information; (3) the disclosure adversely affected the plaintiff; and (4) the disclosure was willful or intentional. 5 U.S.C § 552a(g); Jacobs v. National Drug Intelligence Center, 423 F.3d 512, 516 (5th Cir. 2005). The Air Force moved for summary judgment on grounds that the summary judgment record demonstrated that Pierce could not establish prongs one, two, or four. The district court held that Pierce could not satisfy the first prong because duty titles used in lieu of names were not "identifying particulars," and thus the use of duty titles did not make the final response letter and SROI "records" within a "system of records."³ Specifically, the district court found that the response that Bryant received did not include Pierce's name and held that a duty title is not unique to an individual because many people have the same or similar duty titles. The district court reasoned that duty titles change over time and that individuals typically have both a predecessor and a successor at any specific duty title. Thus, the district court found that although the newspapers were able to connect Pierce to the allegations against him, the newspapers could not have made such a connection without information found outside of the final response letter and SROI. As such, the final response letter and the SROI were not protected records per the Privacy Act, and Pierce's claim failed to meet the first prong. As discussed below, we agree that the newspapers could not have identified Pierce without additional information not released by the Air Force and that the duty titles released here are not the equivalent of names of particular individuals.

Appellant first relies on the plain language of the Privacy Act which states that a "record" is "any item . . . that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph." 5 U.S.C. § 552a(a)(4). Appellant argues that this language suggests that duty titles are the equivalent to the names of particular individuals. We disagree. Although the Privacy Act protects more than just documents that contain a person's name, it does not protect documents that do not include identifying particulars. Here, the district court found that the duty titles were not numbers, symbols, or other identifying particulars. Similarly, the district court found that duty titles were not comparable to captured immutable characteristics such as finger or voice prints or photographs. The district court reached these conclusions because an individual's duty title changes over time, because multiple people can concomitantly have the same or similar duty titles, and because each individual has predecessor and successor holders of the same duty titles. We agree with the reasoning and conclusions of the district court. In circumstances where duty titles pertain to one and only one individual, such as the examples of identifying particulars provided in the statutory text (finger or voice print or photograph), duty titles may indeed be "identifying particulars" as that term is used in the definition of "record" in the Privacy Act. For the reasons detailed by the district court, however, the duty titles in this case are not "identifying particulars" because they do not pertain to one and only one individual. See, e.g., 32 C.F.R. § 806b.45 (2007) (permitting disclosure of an individual's past and present position title and stateside duty assignments without written consent of that individual); 32 C.F.R. Pt. 505, App. H (defining "personal identifier" as "name, number, or symbol that is unique to an individual, usually the person's name or SSN"). And the plain language of the Privacy Act does not support the conclusion that duty titles are identifying particulars.

Appellant next relies on an Office of Management and Budget regulation to argue that to be a "record" under the Privacy Act, the information does not have to be unique to an individual, only that it be "about" that individual. Guidance on the Privacy Act Implications of "Call Detail" Programs, 52 Fed.Reg. 12,990-91 (April 20, 1987). This regulation was promulgated to provide guidance to agencies creating "call detail programs" that collect and use information relating to their employees' use of long distance telephone systems. Id. at 12,990. The regulation provides that call detail records that contain only telephone numbers are not records under the Privacy Act, but that when linked with a name they become such records. Appellant correctly notes that the Privacy Act's definition of "record" is thus not limited to purely unique or immutable identifying information, as telephone numbers can be protected. Id. at 12,991.

The regulation, however, does not support the conclusion that the final response letter and SROI are records protected by the Privacy Act. The regulation states that identifying information alone, unless accompanied by a link between the identifying information and a specific individual, is insufficient to make a record protected. Id....