          United States Court of Appeals
                     For the First Circuit


No. 18-1801

                MICHAEL COWELS and MICHAEL MIMS,

                     Plaintiffs, Appellants,

                               v.

              THE FEDERAL BUREAU OF INVESTIGATION,
               CHRISTOPHER WRAY, and PAULA WULFF,

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Richard G. Stearns, U.S. District Judge]


                             Before

                  Thompson, Lipez, and Barron,
                         Circuit Judges.


     Ezekiel L. Hill, with whom David J. Apfel, Kathleen
McGuinness, and Goodwin Procter LLP were on brief, for appellant
Michael Cowels.
     Elliot M. Weinstein on brief for appellant Michael Mims.
     Annapurna Balakrishna, Assistant United States Attorney, with
whom Andrew E. Lelling, United States Attorney, was on brief, for
appellees.


                         August 26, 2019
             LIPEZ, Circuit Judge.       Appellants Michael Cowels and

Michael Mims were convicted of murder in state court and spent

twenty years behind bars serving life sentences. After new testing

of trial evidence cast doubt on the verdict, they were granted a

new trial.    Subsequent DNA testing of a swab taken from the inside

of a condom recovered in the vicinity of the victim during the

initial investigation revealed an unknown male DNA profile. Cowels

and Mims obtained a state court order requiring Massachusetts to

upload the DNA profile into a state database of DNA records for

comparison purposes.      No matches were found.      The FBI, however,

refused to upload the profile into the national DNA database after

determining that it was ineligible for upload.          Cowels and Mims

went to federal court to compel the FBI to upload the profile, but

the district court dismissed their suit based on its conclusion

that the FBI's eligibility determination is unreviewable.

             Without suggesting that the district court erred in its

analysis, we assume that the FBI's eligibility determination is

reviewable.     Having done so, we conclude that the determination

was   not   arbitrary   and   capricious.    We   therefore   affirm   the

dismissal of appellants' suit.

                                    I.

A. Legal Background

             The DNA Identification Act of 1994 authorized the FBI

Director to establish a DNA index, including DNA identification


                                  - 2 -
records of persons charged or convicted of crimes and "analyses of

DNA        samples        recovered        from      crime       scenes,"         34    U.S.C.

§ 12592(a)(1)-(2), "to facilitate law enforcement exchange of DNA

identification information," id. § 12592 (title).                               Pursuant to

this authority, the FBI Director created the Combined DNA Index

System ("CODIS"), which operates at the local, state, and national

levels.        The     State     DNA      Index    System      ("SDIS")    is     managed    by

participating states, and the National DNA Index System ("NDIS"),

which aggregates all the DNA records contained in the state

databases, is managed by the FBI.1                            See generally Boroian v.

Mueller, 616 F.3d 60, 63 (1st Cir. 2010) (describing CODIS).

               The    DNA    Identification             Act   itself    lays    out    certain

minimum standards for determining whether a DNA record may be

uploaded to the CODIS system.                     For example, DNA records may only

be    uploaded       if    the   underlying         analysis      was    performed      by    an

accredited       laboratory          in    accordance          with     quality      assurance

standards            established           by       the        FBI.             34      U.S.C.

§ 12592(b)(1)-(2)(A)(i).                  The FBI's NDIS Operational Procedures

Manual       ("the        Manual")        provides       additional       guidelines         for




       1For context, the Massachusetts SDIS contains about 147,290
offender and arrestee DNA profiles, while the NDIS contains over
17 million offender and arrestee DNA profiles. See Federal Bureau
of   Investigation,   CODIS  -   NDIS   Statistics  (June   2019),
https://fbi.gov/services/laboratory/biometric-analysis/codis/ndi
s-statistics (last visited August 22, 2019).



                                                - 3 -
determining whether DNA records are eligible for inclusion in the

NDIS.       Of relevance to this appeal, pursuant to the Manual, a DNA

record that "originate[s] from and/or [is] associated with a crime

scene" is eligible for upload if it is "believed to be attributable

to the putative perpetrator."2

B. Factual Background

               In 1994, a Massachusetts jury convicted Cowels and Mims

of murdering Belinda Miscioscia, who was found brutally stabbed to

death behind a woodworking shop in a yard known as a location for

sexual trysts.       Among the evidence presented at trial were two

bloody towels recovered from the home of a friend of Cowels and

Mims, which bolstered the friend's testimony that Cowels and Mims

came to his home the night of the murder, made incriminating

statements, and cleaned up in his bathroom.      Analysis of the only

towel with a large enough amount of blood for testing neither

identified nor excluded the men or the victim as sources.           At

trial, a state forensic scientist also testified about collecting

"an older, wrinkled condom . . . covered with dirt and debris as

well as sawdust" from the vicinity of the body.          The forensic

scientist testified that she tested the condom for hair and fibers




        2
        We base our discussion of the NDIS Manual on the version
included by the parties in the Joint Appendix and relied on by the
district court, which became effective in July 2017. The parties
have not suggested that any other version of the Manual is relevant
to this appeal.


                                   - 4 -
and swabbed the inside of the condom, confirming the presence of

seminal fluid residue.   The condom was not tested for DNA.

           Twenty years into serving their life sentences, Cowels

and Mims were granted a new trial by the Massachusetts Supreme

Judicial Court based on new DNA testing of the previously tested

towel.   See Commonwealth v. Cowels, 24 N.E.3d 1034, 1037 (Mass.

2015).   The new testing confirmed that the blood did not come from

either man or from the victim.    In preparation for a new trial,

other items collected during the initial investigation were also

DNA-tested.   Testing by a state forensic scientist of the swab

taken from inside the condom indicated sperm and non-sperm male

DNA from more than one contributor.     Only one of the DNA profiles

was suitable for comparison but it did not match either Cowels or

Mims.3   However, the forensic scientist concluded that this DNA

profile was ineligible for upload to CODIS.

           Cowels and Mims filed a motion in Massachusetts Superior

Court to compel the Commonwealth to submit the condom DNA profile

to the SDIS and to share the results.    They contend that uploading

the profile may lead to apprehension of the true killer, who they

speculate could be any one of a number of violent and jealous men



     3   We follow the parties in describing the relevant DNA
information that Cowels and Mims want entered in the national
database as a "DNA profile."    The Manual defines this term as
"[t]he genetic constitution of an individual at defined locations
(also known as loci) in the DNA."


                               - 5 -
the victim was involved with in the months before her death.         The

Commonwealth opposed the motion, arguing that the DNA profile did

not qualify for submission to CODIS pursuant to FBI standards.

Recognizing that uploading the profile "risks implicating a person

entirely innocent of this murder, who merely happened to be having

sex in the same area, unrelated to th[e] victim or to the time of

her   death,"   the   Superior    Court    nonetheless   ordered     the

Commonwealth to submit the DNA profile to the SDIS. Sup. Ct. Order

Dec. 4, 2017, at 2-3.     The Commonwealth entered the DNA profile

into the state database, but there was no match.

          Dorothea    Collins,   the   CODIS   administrator   for   the

Massachusetts State Police Crime Laboratory, emailed the FBI,

informing the agency about the court order and reiterating the

Commonwealth's view that the DNA profile is ineligible for upload

to either the SDIS or the NDIS, but requesting that the FBI review

for itself whether the DNA profile is eligible for upload to the

national database.    Collins attached to her email Cowels's and

Mims's motion in the Superior Court, the court order, and her

affidavit in the Superior Court matter, in which she stated

(1) that the victim's body was found "clothed, outside on a

platform," and that the condom "was found on the ground between

the platform and a tank, covered in sawdust, dirt and vegetation";

and (2) that the victim's DNA was not part of the mixture taken

from the inside of the condom.         Collins thus concluded in her


                                 - 6 -
affidavit that, "[a]lthough the condom was collected from the crime

scene during the course of the investigation, its connection to

Ms. Miscioscia is not established to support a CODIS upload."

Paula Wulff, Unit Chief of the FBI Office of the General Counsel's

Forensic Science Law Unit, responded to Collins's email that the

FBI had reviewed the attached materials and determined that the

DNA profile was not eligible for upload to the NDIS because the

condom was not sufficiently linked to the victim.

           An   assistant    district     attorney   followed   up    with   a

request that the FBI consider performing a manual keyboard search

-- which is a method of comparing a DNA record to other records in

CODIS without uploading the record -- even if they would not upload

the   profile   to   the   NDIS.    The    assistant   district      attorney

explained, "[w]hile we have shared the FBI's view of the relevance

of this evidence in our murder case, . . . I am respectfully

requesting that this search be done as a courtesy to me and my

office, out of respect for the [c]ourt's prior order, and my desire

to avoid the eventual trial judge, and possibly even the jury,

misunderstanding the failure to upload the DNA profile in question

to NDIS as 'the government being obstructionist.'"              Wulff also

rebuffed this request and shared a more in-depth written response

explaining the FBI's determination that the DNA profile was not

eligible for upload to the NDIS or for a manual keyboard search.




                                   - 7 -
             The response explained that the FBI had reviewed case

materials,     including   the    Superior    Court     order,     Collins's

affidavit, and case notes from the 1993 murder investigation.            The

response stated that the case notes described the condom as being

discovered "under sawdust and debris -- covered with sawdust, dirt,

dried vegetation etc. breaking apart."            (Emphasis by the FBI.)

The response also stated, "[t]here is no indication in the material

provided that the condom was forensically connected to the victim."

Citing   the   NDIS   Operational    Procedures    Manual,   the    response

concluded, "[f]rom the information that has been provided to the

FBI, nothing forensically demonstrates a link between the victim

and the subject condom to consider the obtained profile as coming

from a putative perpetrator."

             At some point during the course of the back-and-forth

between the Commonwealth and the FBI, Cowels and Mims asked the

Superior Court to specifically order the FBI to upload the profile.

The court, however, declined this request, citing a lack of

jurisdiction.

             Cowels and Mims then filed a suit for declaratory and

injunctive relief in federal court against the FBI, Wulff, and FBI

Director Christopher Wray (collectively, "the FBI"), seeking an

order directing the FBI to upload the condom DNA profile to the

NDIS or to perform a manual keyboard search, and to report the

results.       In   relevant   part,   they   contend    that    the   FBI's


                                    - 8 -
determination that the DNA profile is ineligible for upload to the

NDIS or for a manual keyboard search is arbitrary and capricious.

The district court granted the FBI's motion to dismiss after

concluding that the agency's eligibility determination is not

subject to judicial review.    The court also stated that, even

assuming the determination is subject to judicial review, Cowels

and Mims were not likely to prevail because "[n]othing in the FBI's

decision rises to [the] level of capriciousness or indifference."

Cowels v. FBI, 327 F. Supp. 3d 242, 250 n.2 (D. Mass. 2018).   This

timely appeal followed.4

                               II.

          We review the district court's grant of the FBI's motion

to dismiss de novo and may affirm on any ground supported by the

record.   Flores v. OneWest Bank, F.S.B., 886 F.3d 160, 164 (1st

Cir. 2018).

          The Administrative Procedure Act ("APA") waives federal

sovereign immunity for suits alleging injury by agency action.

5 U.S.C. § 702. However, "agency action is not subject to judicial

review 'to the extent that' such action 'is committed to agency

discretion by law.'" Lincoln v. Vigil, 508 U.S. 182, 190-91 (1993)

(quoting 5 U.S.C. § 701(a)(2)).      The district court determined




     4   Cowels and Mims are not appealing the district court's
dismissal of their constitutional claims, which we do not otherwise
discuss.


                              - 9 -
that this case presents one of these "rare instances where statutes

are drawn in such broad terms that in a given case there is no law

to apply."     Cowels, 327 F. Supp. 3d at 249 (quoting Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971))

(internal quotation marks omitted).             In other words, because the

DNA Identification Act merely authorizes the FBI to create a

database that meets certain minimum standards, but does not require

the inclusion of any material in that database, "the statute is

drawn so that a court would have no meaningful standard against

which to judge the agency's exercise of discretion."                Heckler v.

Chaney, 470 U.S. 821, 830 (1985).

             Cowels and Mims disagree.         They do not appear to contend

that   the   Act   alone    provides     judicially   reviewable    standards.

Rather, they argue that the Act when read in conjunction with the

NDIS Manual provides meaningful standards by which to review the

FBI's determination that the DNA profile was not eligible for

upload. As they put it, "[e]stablishing the NDIS Manual's policies

and    procedures    cabined      the     FBI's    discretion,     and   having

established     those      policies     and    procedures,   the   FBI   cannot

disregard them."

             We need not decide this difficult reviewability issue.

Where a question of statutory jurisdiction is complex, but the

merits of the appeal are "easily resolved against the party

invoking [] jurisdiction," we can assume jurisdiction for purposes


                                      - 10 -
of deciding the appeal.       In re Fin. Oversight & Mgmt. Bd. for P.R.,

916 F.3d 98, 114 n.13 (1st Cir. 2019); see also Royal Siam Corp.

v. Chertoff, 484 F.3d 139, 144 (1st Cir. 2007) (assuming statutory

jurisdiction before determining whether an agency decision was

arbitrary and capricious).         We do so in this case and proceed to

the   merits,    readily     concluding      that   the    FBI's     eligibility

determination was not arbitrary and capricious when measured by

any cognizable standard in the Act or the Manual.5

            An agency action is arbitrary and capricious if the

agency "relied on improper factors, failed to consider pertinent

aspects of the problem, offered a rationale contradicting the

evidence before it, or reached a conclusion so implausible that it

cannot be attributed to a difference of opinion or the application

of agency expertise."         Bos. Redevelopment Auth. v. Nat'l Park

Serv.,    838   F.3d   42,   47   (1st   Cir.   2016)     (quoting   Associated


      5 Under the APA, a reviewing court may, inter alia, "compel
agency action unlawfully withheld or unreasonably delayed," 5
U.S.C. § 706(1), or "hold unlawful and set aside agency action,
findings, and conclusions found to be . . . arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law,"
id. § 706(2)(A). Appellants pleaded both bases for judicial review
before the district court, but, on appeal, they focus on their
contention that the FBI's eligibility determination regarding the
DNA profile was arbitrary and capricious.     We reject the FBI's
suggestion that the "gravamen" of appellants' case is a challenge
to agency action "unlawfully withheld" and that appellants did not
adequately plead that the FBI's eligibility determination was
arbitrary and capricious.




                                    - 11 -
Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 109 (1st Cir.

1997)).    Pursuant to this "highly deferential" standard of review,

Citizens    Awareness   Network,    Inc.    v.   U.S.    Nuclear   Regulatory

Comm'n, 59 F.3d 284, 290 (1st Cir. 1995), we will uphold an agency

determination if it is "supported by any rational view of the

record," Atieh v. Riordan, 797 F.3d 135, 138 (1st Cir. 2015).

            Cowels   and   Mims   contend   that   the    FBI's    eligibility

determination was arbitrary and capricious because the reasons the

agency provided to support its determination that the DNA profile

was not "attributable to the putative perpetrator" -- the standard

from the Manual -- do not withstand scrutiny.6             We disagree.    In

the explanation of its eligibility determination, the FBI focused

on (1) the condition of the condom, and (2) the lack of any forensic

connection between the condom and the victim.                Both of these

reasons    support   the   FBI's    eligibility     determination.        The

condition of the condom when found -- "covered with sawdust, dirt,

dried vegetation etc. breaking apart" -- supports a conclusion

that the condom was not temporally related to the murder.              And the

lack of DNA evidence tying the condom to the victim supports a




     6  In the explanation of its eligibility determination, the
FBI stated that a manual keyboard search is "an exceptional
mechanism that is used in exigent circumstances." Appellants do
not appear to challenge the FBI's implicit conclusion that exigent
circumstances supporting a manual keyboard search do not exist in
this case regardless of whether the DNA profile was eligible for
upload.


                                   - 12 -
conclusion that, given the condition of the condom, uploading the

DNA profile could implicate an innocent person rather than reveal

the perpetrator.

            Cowels's and Mims's attempts to poke holes in the FBI's

reasons for its determination are unavailing.                  Regarding the

condition of the condom, they point to the fact that the condom

was collected and tested by a forensic scientist at the time of

the original investigation, and that the Commonwealth DNA-tested

the condom swab after they were granted a new trial.              They argue

that this testing shows that the Commonwealth believed the condom

was connected to the murder despite its condition.             Moreover, they

contend that the Commonwealth changed its view only when it became

clear that the condom could be exculpatory.        But the record before

us   does   not    support    the   contention   that    the    Commonwealth

necessarily    viewed   the    condom   as   connected   to     the   putative

perpetrator.      As noted, the forensic scientist who collected the

condom testified at trial that it was "an older, wrinkled condom

. . . covered with dirt and debris as well as sawdust" (emphasis

added), and it does not appear that the condom featured in the

prosecution's case at trial, see Cowels, 24 N.E.3d at 1038-1040.

Similarly, we cannot glean from the mere fact that the Commonwealth

DNA-tested multiple items, including the condom swab, after the

men were granted a new trial, that the Commonwealth saw the condom

as related to the perpetrator until it was determined to be


                                    - 13 -
potentially exculpatory.     Most importantly, we do not see how any

shift in the Commonwealth's position undermines the FBI's ability

to make its own independent judgment, on the basis of undisputed

facts,   about   the   condition    of   the   condom   and   its   temporal

connection to the murder.

           Regarding the lack of a forensic connection between the

condom and the victim, appellants contend that the FBI "ignore[d]

the fact that the Swab DNA Profile was not taken from the Condom

but from the Swabs of the inside of the Condom, and that the Condom

itself" -- that is, the outside of the condom, where the victim's

DNA would more likely be found -- "was never tested for DNA."7

They therefore suggest that the FBI's eligibility determination

was based in part on "the arbitrary and capricious view that the

inside of the Condom could somehow include [the victim]'s DNA."

Some of the language in the FBI's written explanation of its

eligibility determination does suggest that the agency was not

fully attuned to the distinction between the DNA testing of the

swab from the inside of the condom and testing of the outside of

the condom, which was never performed.         See, e.g., FBI Response to

NDIS Upload Request, at 1 (noting the absence of the victim's DNA


     7  The parties have not contended before us that the outside
of the condom can now be tested to determine whether the victim's
DNA is present.    Indeed, at oral argument, appellants' counsel
explicitly stated that he was not representing that there is a
possibility that the outside of the condom can now be tested.



                                   - 14 -
"as would be expected had the condom come in contact with the

victim").

                However, the FBI's entire explanation makes reasonably

clear that the agency's focus was on the absence of any DNA

connection in the record between the condom and the victim -- a

lack of connection that appellants do not contest -- rather than

on   a       misguided   understanding   that   testing   had   definitively

established that the condom had never come into contact with the

victim.8       In other words, the FBI correctly noted that the record

before it did not establish any DNA connection between the condom

and the victim.          And we readily conclude that this absence of

evidence was a rational reason, along with the condom's condition,

for the FBI's determination that the swab DNA profile could not be

"attribut[ed] to the putative perpetrator," and therefore was

ineligible for upload to the NDIS.9




         8
        We do not rely on the FBI's contention, seemingly first
raised at oral argument, that there was effectively no distinction
between the outside and the inside of the condom because it was
breaking apart.
         9
        Because we affirm on the basis that the FBI's eligibility
determination was not arbitrary and capricious, we do not opine on
the FBI's argument that Cowels and Mims would not be entitled to
information resulting from comparing the condom DNA profile with
DNA records in the NDIS.



                                    - 15 -
                             III.

          For the foregoing reasons, we affirm the dismissal of

appellants' claims.

          So ordered.




                            - 16 -
