Horowitz, Michael G. v. Peace Corps

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 9, 2005 Decided October 28, 2005

No. 04-5065

MICHAEL G. HOROWITZ, PH.D,

APPELLANT/CROSS-APPELLEE

v.

PEACE CORPS,

APPELLEE/CROSS-APPELLANT

Consolidated with

04-5087 and 04-5279

Appeals from the United States District Court

for the District of Columbia

(No. 00cv00848)

Michael G. Horowitz, appearing pro se, argued the cause

and filed the briefs for appellant/cross-appellee.

Lisa S. Goldfluss, Assistant U.S. Attorney, argued the cause

for appellee/cross-appellant. With her on the brief were

Kenneth L. Wainstein, U.S. Attorney, and Michael J. Ryan,

Assistant U.S. Attorney. R. Craig Lawrence, Assistant U.S.

Attorney, entered an appearance.

2

Before: EDWARDS, TATEL and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: After choosing to resign from his

position as a Peace Corps volunteer and thereby avoid the filing

of an Administrative Separation Report (ASR) detailing

allegations of sexual misconduct, pro se appellant Dr. Michael

Horowitz challenges the district court’s order allowing the Peace

Corps to withhold the draft ASR from release under Exemption

5 of the Freedom of Information Act (FOIA). Horowitz also

appeals the district court’s denial of his request for access to the

same document under the Privacy Act. Finally, the Peace Corps

appeals the denial of its attempt to protect the name of the

complainant under FOIA Exemption 6.

We conclude the district court properly exempted the draft

document from release under FOIA Exemption 5 and properly

found the document was not part of a system of records subject

to disclosure under the Privacy Act. However, we conclude

FOIA Exemption 6 also applies; therefore, the name of the

alleged victim is not subject to release as a segregable fact.

I

From 1998 to 2001, Arturo Giron was Peace Corps Country

Director for the Kingdom of Tonga; his duties included supervi-

sion of Peace Corps volunteers stationed in Tonga. On March 7,

1999, a female volunteer told Giron a young Tongan man

claimed he had been the victim of sexual misconduct involving

Michael Horowitz. The young man, a student at ’Atenisi High

School, was 18 or 19 years old and appeared to have been under

18 at the time of the incident.

3

Giron consulted the Peace Corps Manual and contacted the

General Counsel’s office for advice. He also interviewed the

Tongan student, who repeated substantially the same allegations.

Giron and Sally Olsonoski, another Peace Corps worker, then

met with Horowitz. Horowitz remembered the incident but

explained that the encounter was consensual and assured Giron

the student had been 18 years old at the time. Olsonoski testified

that Horowitz said, “I always card them,” but acknowledged that

it was difficult to do so in a foreign country. Giron again sought

assistance from the General Counsel’s office, stating in an

e-mail that “[t]here is no clear age of majority [in Tonga], but

homosexual acts are illegal under the law here.” Giron confessed

he was “now completely confused about how to proceed,” and

requested guidance.

Within a week of receiving the volunteer’s report, Giron

prepared “a single, cohesive document” that summarized his

investigations and notes from various meetings, and generally

outlined the events and the actions he had taken. He used the

computer template designed for creating ASRs but completed

only three of the template’s five sections. At that point, accord-

ing to Giron, “no final decision had been made with respect to

the incident and the volunteer involved. We were still in the

process of deliberating.”

On March 16, 1999, Giron e-mailed the document to senior

officials at Peace Corps headquarters, asking them to review the

draft and submit changes and comments. Later that day,

Horowitz informed Giron that he was resigning from the Peace

Corps. Horowitz now claims he resigned only after Giron read

parts of the draft ASR to him, told him a final decision to

administratively separate him had been made, and informed him

that the ASR would be sent to headquarters unless Horowitz

resigned. Giron denies ever making a final decision or informing

4

Horowitz that he had done so. At Horowitz’s request, however,

Giron kept the draft ASR in his office safe.

On June 18, 1999, Horowitz requested a copy of the draft

ASR through FOIA, 5 U.S.C. § 552. The Peace Corps denied his

request on August 17, 1999. On November 15, 1999, Horowitz

administratively appealed the denial, but the Peace Corps again

denied his request on April 19, 2000. Horowitz then filed suit in

the United States District Court for the District of Columbia,

seeking disclosure of the draft ASR under FOIA and the Privacy

Act, 5 U.S.C. § 552a. The Peace Corps contended the draft ASR

was a predecisional document exempt from release under FOIA

and that releasing the student’s name would be a clearly

unwarranted invasion of his privacy. The Peace Corps also

argued the document was not contained in a system of records

and thus was not subject to release under the Privacy Act.

The district court granted partial summary judgment to the

Peace Corps, ruling that the document was not subject to release

under the Privacy Act, and partial summary judgment to

Horowitz, ruling that release of the student’s name would not be

a clearly unwarranted invasion of privacy under FOIA. After an

evidentiary hearing, the district court ruled in favor of the Peace

Corps, allowing the document to be withheld as predecisional.

However, the court confirmed that the identity of the student

was a segregable fact that must be released to Horowitz; release

of the name was stayed pending this appeal.

II

We review orders granting summary judgment de novo.

Computer Prof’ls for Soc. Responsibility v. U.S. Secret Serv., 72

F.3d 897, 902 (D.C. Cir. 1996). We will not set aside the district

court’s findings of fact unless they are clearly erroneous, giving

due regard to the district court’s opportunity to judge the

5

credibility of witnesses. Fed. R. Civ. P. 52(a); see Berger v. Iron

Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1407

(D.C. Cir. 1988).

A

FOIA provides that “each agency, upon any request for

records which (i) reasonably describes such records and (ii) is

made in accordance with published rules stating the time, place,

fees (if any), and procedures to be followed, shall make the

records promptly available to any person.” 5 U.S.C.

§ 552(a)(3)(A). The statute also provides a list of exemptions

from this command. 5 U.S.C. § 552(b). “[T]he burden is on the

agency to sustain its action” in claiming these exemptions. 5

U.S.C. § 552(a)(4)(B). Exemption 5 allows agencies to withhold

“inter-agency or intra-agency memorandums or letters which

would not be available by law to a party other than an agency in

litigation with the agency.” 5 U.S.C. § 552(b)(5). This exemp-

tion privileges “those documents, and only those documents,

normally privileged in the civil discovery context.” NLRB v.

Sears, Roebuck & Co., 421 U.S. 132, 149 (1975).

The privilege is meant to protect “predecisional communica-

tions” from disclosure so as to “prevent injury to the quality of

agency decisions.” Id. at 151. Thus, the exemption “protects

materials that are both predecisional and deliberative.”

Mapother v. Dep’t of Justice, 3 F.3d 1533, 1537 (D.C. Cir.

1993). We previously have stated that “the key question in

Exemption 5 cases [is] whether the disclosure of materials

would expose an agency’s decisionmaking process in such a

way as to discourage candid discussion within the agency and

thereby undermine the agency’s ability to perform its functions.”

Dudman Commc’ns Corp. v. Dep’t of the Air Force, 815 F.2d

1565, 1568 (D.C. Cir. 1987). “Finally, even if the document is

predecisional at the time it is prepared, it can lose that status if

6

it is adopted, formally or informally, as the agency position on

an issue or is used by the agency in its dealings with the public.”

Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866

(D.C. Cir. 1980).

Whether the draft ASR properly qualified as a deliberative

document was the subject of an evidentiary hearing. The

evidence before the court included section 284 of the Peace

Corps Manual, which outlines the required process for early

termination of service of Peace Corps volunteers; the deposi-

tions of Giron and Horowitz; and the testimony of Giron,

Horowitz, and Sally Olsonoski at the evidentiary hearing. The

manual authorizes administrative separation for conduct ranging

from minor infractions like failing to wear a motorcycle helmet,

to criminal convictions, to espionage. Under these provisions,

the volunteer is entitled to be informed of the specific conduct

at issue, have an opportunity to respond, and be apprised of the

alternative of resignation. The disciplinary options range from

taking no action, to imposing conditions on further service, to

administrative separation. If a volunteer resigns before a final

decision to terminate him is made, the ASR is not completed. If

the volunteer resigns “after the decision to administratively

separate has been made but before the process is completed, the

Administrative Separation Report must be completed and

forwarded” to the Peace Corps’s Office of Volunteer Services.

During the evidentiary hearing, Giron and Olsonoski

testified that no final decision was ever made to administratively

separate Horowitz. Giron testified it was “the first time [he] had

encountered [so serious] an incident,” and it was his first

experience with an administrative separation. He sought further

guidance from senior staff in Tonga and consulted on a daily

basis with Peace Corps headquarters, the Office of the General

Counsel, and regional senior staff. He spent “literally hours and

hours on the telephone with Washington, D.C., talking to the

7

[G]eneral [C]ounsel.” On March 16, 1999, prior to the meeting

where Horowitz announced his intention to resign, Giron

e-mailed the draft document to headquarters with a cover e-mail

that asked the recipients to “review and send comments/changes

to Sally [Olsonoski].” Giron asked that comments be sent to

Olsonoski because he had to leave Tonga to attend a funeral and

he anticipated that she would need to make the final decision in

his absence. Giron testified that he had reached no final decision

prior to the time Horowitz announced his intention to resign, and

that he was unwilling to make a unilateral decision:

[W]hatever final disposition was going to be reached on this

case was going to be a consensus among all the senior

officials involved, myself included, but also the [O]ffice of

the [G]eneral [C]ounsel and the senior staff of the region,

and we had not at that point come to any particular consen-

sus as to which course of action we were going to follow.

According to Giron’s testimony, at no time did Giron tell

Horowitz that he had made a decision to administratively

separate him or that he was on the verge of doing so.

Giron explained that, complying with the provisions of

section 284, he never completed or officially filed the draft ASR

he was crafting. He believed “the opportunity to ‘think aloud’ in

such a draft document” was “an essential part” of the section

284 decision-making process; in his opinion, making such

documents publicly available would deter Country Directors

from creating them and deprive such officials of the benefit of

review and comment from other departments. Horowitz argues,

however, that the document lost its predecisional status by being

adopted as the official agency position regarding his administra-

tive separation; in essence, he contends that Giron had already

decided to terminate his service before he resigned, even though

the decision was not formally executed. After evaluating the

8

witnesses’ testimony and credibility, the district court concluded

Giron had not made a final decision about separating Horowitz.

The document was prepared as an aid for Giron’s

decision-making process and for consultation with other Peace

Corps officials. Hence, the document qualified as deliberative

and predecisional.

We are not persuaded the district court’s findings on these

points are clearly erroneous. The draft is remarkably candid.

Moreover, Giron’s thought processes are woven into the

document to such an extent that any attempt to segregate

non-deliberative portions would effectively disclose the content

and context of intra-agency deliberations. Accordingly, as the

document did not lose its predecisional and deliberative status,

it was properly withheld under FOIA Exemption 5.

B

In providing exemptions from the general requirement of

disclosure, FOIA also provides that “[a]ny reasonably

segregable portion of a record shall be provided to any person

requesting such record after deletion of the portions which are

exempt under this subsection.” 5 U.S.C. § 552(b). Thus, the

district court correctly concluded the student’s name, which

could be segregated, was not protected from disclosure by

Exemption 5. That conclusion does not fully resolve the

question of whether the student’s name is nevertheless exempt

from disclosure.

C

FOIA Exemption 6 allows agencies to withhold “personnel

and medical files and similar files the disclosure of which would

constitute a clearly unwarranted invasion of personal privacy.”

5 U.S.C. § 552(b)(6). Horowitz agrees that the ASR qualifies as

9

a “similar file” as described in Exemption 6; thus, the remaining

question is whether the release of the ASR—specifically, the

portions identifying the student—would be a clearly unwar-

ranted invasion of the student’s privacy. In the district court, the

Peace Corps argued Exemption 6 should apply; however, as

counsel for the Peace Corps acknowledged during oral argu-

ment, the Corps’s desire to be discreet and shield the privacy

interests of all parties may have led the district court to underes-

timate the private interest and overstate the public benefit at

issue. Horowitz’s lack of reticence has allowed the Peace Corps

to correct this defect on appeal.

To determine whether release of a file would result in a

clearly unwarranted invasion of personal privacy, we must

balance the private interest involved (namely, “the individual’s

right of privacy”) against the public interest (namely, “the basic

purpose of the Freedom of Information Act,” which is “to open

agency action to the light of public scrutiny”). Dep’t of the Air

Force v. Rose, 425 U.S. 352, 372-73 (1976) (internal quotation

marks omitted).

The focus of the public interest analysis is the citizens’ right

to know “‘what their government is up to.’” U.S. Dep’t of

Justice v. Reporters Comm. for Freedom of the Press, 489 U.S.

749, 773 (1989) (citations omitted); see also Beck v. Dep’t of

Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993) (stating that the

standard from Reporters Committee “is applicable in the case of

Exemption 6”). Neither “the identity of the requesting party” nor

“the particular purpose for which the document is being re-

quested” is relevant, Reporters Comm., 489 U.S. at 771-72,

because “[a]s a general rule, if the information is subject to

disclosure, it belongs to all.” Nat’l Archives & Records Admin.

v. Favish, 541 U.S. 157, 172 (2004). Hence, release under FOIA

is equivalent to making the information publicly available.

10

The availability of information through other sources

lessens the public interest in its release through FOIA. See U.S.

Dep’t of Def., Dep’t of Military Affairs v. Fed. Labor Relations

Auth., 964 F.2d 26, 29 (D.C. Cir. 1992). If there is no public

interest in the disclosure of certain information, “something,

even a modest privacy interest, outweighs nothing every time.”

Nat’l Ass’n. of Retired Fed. Employees v. Horner, 879 F.2d 873,

879 (D.C. Cir. 1989). “We generally accord Government records

and official conduct a presumption of legitimacy.” U.S. Dep’t of

State v. Ray, 502 U.S. 164, 179 (1991). Furthermore, “clear

evidence is usually required to displace” the presumption and

show the presence of a public interest in investigating an

agency. Favish, 541 U.S. at 174.

The public interest in this case is virtually nonexistent.

Horowitz alleges the Peace Corps mistreated him, and that

revealing the student’s name will allow investigation of the

agency’s actions. However, he offered no credible evidence of

misconduct by the Peace Corps; the district court found Giron’s

testimony “forthright” and Horowitz’s testimony “continually

evasive.” Horowitz’s real complaint is that he had to choose

between two unpalatable alternatives. It is difficult to see how

the Peace Corps’s long-established procedure of allowing

volunteers to resign rather than face public charges of miscon-

duct could be deemed improper. Horowitz simply alleges that in

order to prove the Peace Corps’s perfidy, “it may be necessary

to confirm the relation of Complainant, if any, to the Kingdom

of Tonga’s political, military, and/or criminal factions.” Appel-

lant’s Reply Br. at 44. Horowitz offers no further details to

support these extremely speculative allegations; he has not

offered the “clear evidence” required to overcome the presump-

tion that the Peace Corps’s official conduct was proper.1 In no

1

Horowitz’s unsupported allegation that the Peace Corps is

protecting the student’s name in order to cover up for its failure to

11

way would release of the student’s name serve the civic good.

Additionally, Horowitz’s need to obtain the information for a

pending civil suit is irrelevant, as the public interest to be

weighed has nothing to do with Horowitz’s personal situation.

The privacy interest implicated in a case such as this is the

individual’s right to “avoid[] disclosure of personal matters.”

Reporters Comm., 489 U.S. at 762 (internal quotation marks and

citation omitted).2 Under Exemption 6, “the fact that an event

is not wholly private does not mean that an individual has no

interest in limiting disclosure or dissemination of the informa-

tion,” id. at 770 (internal quotation marks and citation omitted),

as “there are few facts that are not at one time or another

divulged to another,” id. at 763.

Even seemingly innocuous information can be enough to

trigger the protections of Exemption 6. In United States Depart-

ment of Defense v. Federal Labor Relations Authority, the

Supreme Court held Exemption 6 shielded the names and home

addresses of agency employees from being released to unions

that requested the lists under FOIA. 510 U.S. 487, 502 (1994).

Because “[m]any people simply do not want to be disturbed at

home by work-related matters,” the Court was “reluctant to

disparage the privacy of the home, which is accorded special

protect Horowitz from the student’s purported blackmail attempt

similarly fails to defeat the presumption of official regularity.

2

In Reporters Committee, the Court examined FOIA Exemption

7(C), applicable to law enforcement files, rather than Exemption 6.

Nevertheless, the Court has held that the difference between the

standards for the two exemptions “is of little import” except when

analyzing “the magnitude of the public interest that is required to

override the respective privacy interests protected by the exemptions.”

U.S. Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 496

n.6 (1994).

12

consideration in our Constitution, laws, and traditions.” Id. at

501. Additionally, “other parties, such as commercial advertisers

and solicitors, must have the same access under FOIA as the

unions”; releasing the lists to the unions would have necessitated

giving other parties access as well. Id. Thus, the Court found

that the privacy interests outweighed the “negligible” public

interest at stake. Id. at 502.

The scope of privacy protection under FOIA is not the same

as in the constitutional context, Reporters Comm., 489 U.S. at

762 n.13, although being “accorded special consideration in our

Constitution, laws, and traditions” can give additional weight to

a privacy interest. U.S. Dep’t of Def., 510 U.S. at 501. Hence,

even if the incident between Horowitz and the student was

consensual, the student might have a privacy interest in avoiding

disclosure of his identity. See generally Lawrence v. Texas, 539

U.S. 558, 567 (2003) (stating that sexual behavior is “the most

private human conduct”).

Victims of sexual assaults have an arguably greater interest

in the protection of their privacy. For example, the Sixth Circuit

has reasoned that the occurrence of a rape “implicates both a

private and a public interest, but the details of the rape primarily

implicate a private interest until such time as the public interest

in prosecution predominates.” Bloch v. Ribar, 156 F.3d 673,

685-86 (6th Cir. 1998). The private interest in nondisclosure

may predominate in such a case because of the personal trauma

involved and the moral and social opprobrium disclosure often

presages. The “interest in protecting the victims of sexual

violence from humiliation, among other injuries, has prompted

states to pass rape shield laws and to advocate against the

publication of rape victims’ names.” Id. at 685. Similarly,

Federal Rule of Evidence 412 limits the admissibility of

evidence regarding the past sexual behavior or predispositions

of an alleged victim of a sexual offense. “The rule aims to

13

safeguard the alleged victim against the invasion of privacy,

potential embarrassment and sexual stereotyping that is associ-

ated with public disclosure of intimate sexual details and the

infusion of sexual innuendo into the factfinding process.” Fed.

R. Evid. 412 advisory committee’s note.

In Hunt v. FBI, the Ninth Circuit held that the FBI should

not release files from its internal investigation of an agent who

had been accused of sexual misconduct; even if the agent’s

name was redacted from the files, she would have been identifi-

able based on other information in the files. 972 F.2d 286 (9th

Cir. 1992). Although Hunt involved Exemption 7(C), under

which only a reasonable expectation of an invasion of privacy

must be shown to prevent releasing information, the court’s

reasoning is still relevant. That court found identification of the

agent could have caused her “great personal and professional

embarrassment,” while not serving a significant public interest,

as “[t]he single file sought . . . will not shed any light on whether

all such FBI investigations are comprehensive or whether sexual

misconduct by agents is common.” Id. at 288-89.

While we do not confront the constitutional question that

was before the Sixth Circuit in Bloch, the reasoning of the court

aptly describes the contours of the public/private balance at

stake here. We are persuaded that the student’s interest in

avoiding disclosure of his name is at least as strong as the

privacy interest of a government agent accused of sexual

misconduct, and that it is certainly as strong as the interest of

federal employees in avoiding disclosure of their names and

addresses. If released, the student’s name would be associated

not merely with an employer, or even personal sexual miscon-

duct, but with a disputed sexual incident that he claims was not

consensual. Even though the student did reveal his allegation to

two Peace Corps workers, and did not receive an explicit

promise of confidentiality, he still has an interest in avoiding

14

further dissemination of his identity. Our law uniformly recog-

nizes that strong privacy interests are implicated when dealing

with an individual’s sexual activity, especially when the

individual has reported a sexual assault. Unwanted public

attention could lead to further trauma for the victim, who in this

case did not even choose to subject himself to public scrutiny by

pursuing criminal charges. His choice of virtual anonymity

would be undermined by releasing his identity under FOIA, as

releasing it to one person is equivalent to authorizing its release

to anyone.

Accordingly, with a strong privacy interest in non-disclo-

sure being weighed against a de minimis public interest in the

disclosure, the invasion of privacy resulting from the release of

the student’s name would be “clearly unwarranted.” The Peace

Corps may therefore withhold the student’s name under Exemp-

tion 6.

III

We turn now to the Privacy Act, which requires any

“agency that maintains a system of records” to allow a request-

ing individual to review and make a copy of “his record or . . .

any information pertaining to him which is contained in the

system.” 5 U.S.C. § 552a(d)(1). The agency must show the

absence of a genuine issue of any material fact in order to be

granted summary judgment. Fed. R. Civ. P. 56(c). “Rule 56(c)

mandates the entry of summary judgment, after adequate time

for discovery and upon motion, against a party who fails to

make a showing sufficient to establish the existence of an

element essential to that party’s case, and on which that party

will bear the burden of proof at trial.” Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986). The district court held that Horowitz

was not entitled to the document under the Privacy Act because

the document is neither maintained, nor required to be main-

15

tained, in a “system of records.” This ruling is unassailable. The

Peace Corps’s regulations dictate that an ASR should not be

maintained in the agency’s records if a volunteer resigns prior

to an official decision to administratively separate him. In fact,

the Peace Corps’s manual states that an ASR should not even be

completed if a volunteer resigns before such a decision is made.

Since Horowitz resigned before any final decision was made, the

report was never completed and—pursuant to the procedure

specified by the manual—was not maintained in the Peace

Corps’s official files.

Nor has Horowitz shown that Giron nevertheless placed the

draft ASR in a “system of records.” The Act defines “system of

records” to mean “a group of any records under the control of

any agency from which information is retrieved by the name of

the individual or by some identifying number, symbol, or other

identifying particular assigned to the individual.” 5 U.S.C.

§ 552a(a)(5). We have held that the words “is retrieved”

“suggest strongly that a group of records should generally not be

considered a system of records unless there is actual retrieval of

records keyed to individuals.” Henke v. U.S. Dep’t of Com-

merce, 83 F.3d 1453, 1460 (D.C. Cir. 1996). In the district court,

the Peace Corps presented affidavits from two of its officials

stating that they had searched the Peace Corps’s records and had

found no ASR regarding Horowitz. Horowitz presented no

evidence to counter this assertion. He alleges a copy of the draft

ASR was stored in Giron’s safe for some period of time, a

contention the Peace Corps does not deny, and also claims the

draft ASR was retrieved by his name at least one time. That

“retrieval,” however, occurred when Giron e-mailed the draft

ASR to headquarters, and thus involved an electronic copy, not

the physical document in the safe. Horowitz has not shown that

files in the safe are, in practice, retrieved by individuals’ names;

hence, he has not “establish[ed] the existence of an element

essential to his case,” namely, whether the safe qualifies as a

16

system of records. The district court properly granted summary

judgment to the Peace Corps on the ground that the document is

not subject to release under the Privacy Act.3

Finally, we note that because the document is predecisional,

it can attest to nothing. It has no official existence and continues

to be held only because of pending litigation. In fact, the Peace

Corps indicated at oral argument that the document will be

destroyed once it is no longer needed in relation to Horowitz’s

various civil suits.

IV

Horowitz raises several other points on appeal. First, he

claims that the district court abused its discretion in choosing to

review a copy of the draft ASR in camera after conducting the

evidentiary hearing. A court “may examine the contents of such

agency records in camera to determine whether such records or

any part thereof shall be withheld under any of the exemptions”

which apply to FOIA. 5 U.S.C. § 552(a)(4)(B). The decision of

whether to conduct an in camera review of a document is within

the trial court’s “broad discretion” and is reviewed only for

abuse of discretion. Spirko v. U.S. Postal Serv., 147 F.3d 992,

996 (D.C. Cir. 1998). Horowitz claims reviewing a document

containing such disturbing allegations necessarily prejudiced the

district court judge against him. However, he points to no

credible evidence relating to this claim or to any abuse of

discretion in reviewing the document. Indeed, the district court

refused the Peace Corps’s request to view the document at an

3

The status of the copy of the draft ASR that Giron e-mailed to

headquarters is not before us. Horowitz has not argued that the Peace

Corps’s e-mail system qualifies as a “system of records” under the

Privacy Act. Our ruling is confined solely to the copy of the ASR that

was stored in Giron’s safe.

17

earlier point in the proceeding, choosing instead to wait until

after the evidentiary hearing to do so. Horowitz’s claim on this

point is without merit.

Additionally, Horowitz now claims the Fifth and Sixth

Amendments, as well as the Administrative Procedure Act,

entitle him to know the allegations contained in the draft ASR.

“It is well settled that issues and legal theories not asserted at the

District Court level ordinarily will not be heard on appeal.”

District of Columbia v. Air Fla., Inc., 750 F.2d 1077, 1084 (D.C.

Cir. 1984). At the same time, “[t]here may always be excep-

tional cases or particular circumstances which will prompt a

reviewing or appellate court, where injustice might otherwise

result, to consider questions of law which were neither pressed

nor passed upon by the court or administrative agency below.”

Hormel v. Helvering, 312 U.S. 552, 557 (1941). Horowitz

presents no compelling reason why he was not able to present

these issues in the district court; therefore, he may not assert

these claims on appeal.

Finally, Horowitz claims the district court abused its

discretion in two ways: by denying his motion to present more

evidence after the court’s ruling was entered, and by adopting

the Peace Corps’s findings of fact. “[U]pon such terms as are

just,” Federal Rule of Civil Procedure 60(b) allows a party to be

relieved from a final judgment due to, among other reasons,

mistake, surprise, or misconduct of an adverse party. We review

the denial of a Rule 60(b) motion for abuse of discretion unless

the decision was rooted in an error of law. Andrx Pharm. Inc. v.

Biovail Corp. Int’l, 256 F.3d 799, 805 (D.C. Cir. 2001).

Horowitz points to no misconduct on the part of Peace Corps’s

counsel, nor does he explain why any surprise was unjust rather

than a result of a mistake by his attorney. Similarly, Horowitz’s

examples of “clear error” in the findings adopted by the court

are either immaterial or based on evidence that the court found

18

to be more credible than the evidence Horowitz presented.

Hence, Horowitz has not shown that the district court abused its

discretion in either instance.

V

For the above reasons, we hold that the Peace Corps may

withhold the student’s identity from release under FOIA

Exemption 6. In all other respects, we affirm the judgments of

the district court.

So ordered.