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USCA1 Opinion
September 18, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_______________
No. 94-1898
H. RAYMOND KELLETT, JR., AND LAUREL G. KELLETT,
Plaintiffs, Appellants,
v.
UNITED STATES BUREAU OF PRISONS,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Mart in F. Loughlin, Senior U.S. District Judge] __________________________
____________________
Before
Torruella, Chief Judge, ___________
Boudin and Stahl, Circuit Judge. _____________
____________________
H. Raymond Kellett, Jr., and Laurel G. Kellett on brief pro se. ______________________ _________________
Paul M. Gagnon, United States Attorney, and Gretchen Leah Witt, ______________ ___________________
Assistant United States Attorney, on brief for appellee.
____________________
___________________
Per curiam. H. Raymond Kellett, Jr.,1 alleges Per curiam. ___________
violations of the Privacy Act, 5 U.S.C. 552a, by the Bureau
of Prisons ("BOP") and seeks damages pursuant to 5 U.S.C.
552a(g)(4)(A) & (B). The district court granted summary
judgment in favor of BOP. We now affirm.
I. I. __
FACTUAL BACKGROUND FACTUAL BACKGROUND __________________
Kellett, admitted to the New Hampshire bar in 1975,
acted as a closing attorney for a federally insured bank. In
1991, he pled guilty to making false statements to the bank
and to obstructing justice by attempting to influence the
grand jury testimony of his secretary. The district court
sentenced him to serve one year and one day at a federal
prison in Allenwood, Pennsylvania, beginning on January 28,
1992.
After about three months at Allenwood -- in April
1992 -- prison officials recommended Kellett for a transfer
to a community corrections center ("CCC"). On May 17, 1992,
Kellett signed documents necessary to effect his transfer.
However, in June, officials told Kellett that because the
prosecutor in his case, Assistant U.S. Attorney Margaret
Hinkle ("Hinkle"), had objected, in accordance with an ____________________
1. Kellett's wife, Laurel Kellett, is also a plaintiff, informal BOP policy,2 the transfer recommendation would be
seeking damages for loss of consortium.
2. Officials told Kellett that BOP had an unwritten policy
of seeking the prosecutor's approval or concurrence in CCC
placements for inmates sentenced to one year or less and that
his sentence was short enough to come within the policy.
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rescinded. The record indicates that Hinkle had objected to
Kellett's transfer during a telephone conversation with
Kellett's case manager, Robert Adams. Although the record is
not entirely clear, it appears that Adams's notes from his
conversation with Hinkle were placed in Kellett's file
sometime in June.
Invoking administrative procedures, Kellett
appealed the transfer denial. After Allenwood's warden, F.
C. Sizer, Jr., upheld the denial, Kellett appealed to BOP's
deputy regional director N. Lee Conner. Conner again denied
the appeal, stating:
[Despite an initial favorable halfway
house recommendation,] upon further
review and contact with other agencies,
it was determined CCC placement would be
inappropriate. This is based on the fact
you were convicted of Obstructing
Justice, which involved the intimidation ____________
and coercion against one of your _________________________________________
employees to lie for you before the Grand ________________________
Jury. As a result of this information,
staff at [Allenwood] determined CCC
placement would be inappropriate.
(emphasis added). Kellett appealed Conner's decision to
BOP's Washington, D.C., office, arguing that it was
apparently based on inaccurate information regarding
intimidation and coercion. National inmate appeals
administrator John Megathlin denied the appeal. Megathlin
determined that Sizer had properly denied CCC placement
because of: (1) the nature of Kellett's criminal offenses,
and (2) the short length of Kellett's sentence.
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Meanwhile, Kellett sought copies of Adams's notes
and other documents relating to his transfer. In response to
Kellett's inquiries, Adams and Conner both told him that he
would have to submit a request to BOP's general counsel in
Washington, D.C. Kellett never submitted such a request.
Kellett served his sentence and, upon release from
prison, filed this suit. Kellett alleges that BOP willfully
violated the so-called "accuracy provision" of the Privacy
Act, 5 U.S.C. 552a(g)(1)(C), because Kellett's transfer
denial was based on inaccurate information contained in his
file. Kellett claims the record contained two inaccuracies:
(1) that his obstruction-of-justice conviction resulted from
intimidation and coercion; and (2) that Kellett had caused a
loss of $800,000 by making false statements. He also alleges
that BOP violated the "access provision" of the Privacy Act,
5 U.S.C. 552a(d)(1), because BOP did not turn over to him
copies of Adams's notes allegedly containing Hinkle's
comments. After Kellett filed requests for admissions, the
district court granted BOP's motion to stay discovery.
BOP filed a motion to dismiss, which the district
court converted to a motion for summary judgment. Kellett v. _______
United States, 856 F. Supp. 65, 68 (D.N.H. 1994). BOP ______________
supported its motion with three affidavits -- from Patrick
Casey (Sizer's predecessor at Allenwood), deputy regional
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director Conner, and inmate appeals administrator Megathlin.
Kellett objected to the affidavits on several grounds.
The district court granted summary judgment. As to
the accuracy claim, the court held that the alleged
inaccuracies in Kellett's file had not proximately caused the
decision to deny CCC placement:
Kellett's denial of CCC placement was
justified on the basis of the seriousness
of his underlying offense and the length
of his sentence, regardless of the amount
of loss involved or the nature of the
obstruction of justice conviction. The
evidence makes it pellucid that $800,000
loss figure and the erroneous
circumstances regarding the obstruction
of justice were not substantially relied
on in rendering the decision to deny CCC
placement. Even if these factors were
considered to some degree their
consideration would have been harmless
since there was sufficient cause to deny
Kellett CCC placement based on the
seriousness of the underlying offense and
brevity of the sentence received.
Id. at 71. The court did not consider Kellett's objection to ___
the trio of affidavits. Additionally, the district court
noted, but did not hold, that Kellett "would have difficulty"
establishing that BOP had willfully and intentionally
maintained inaccurate records. As to the access claim, the
court held that applicable regulations exempted Kellett's
records from the access provisions of the Privacy Act. Id. ___
at 68-69. This appeal followed.
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II. II. ___
DISCUSSION DISCUSSION __________
After reciting the standard of review, we will
address separately Kellett's accuracy and access claims.
A. Standard of Review ______________________
We review the district court's grant of summary
judgment de novo, considering the facts in the light most __ ____
favorable to the nonmoving party. Udo v. Tomes, 54 F.3d 9, ___ _____
12 (1st Cir. 1995). Summary judgment should be granted when
"the pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, show
that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter
of law." Fed. R. Civ. P. 56(c). "Even in cases where
elusive concepts such as motive or intent are at issue,
summary judgment may be appropriate if the nonmoving party
rests merely upon conclusory allegations, improbable
inferences, and unsupported speculation." Medina-Munoz v. ____________
R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990). __________________________
"Brash conjecture, coupled with earnest hope that something
concrete will eventually materialize, is insufficient to
block summary judgment." Dow v. United Bhd. of Carpenters & ___ ___________________________
Joiners, 1 F.3d 56, 58 (1st Cir. 1993). _______
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B. The Accuracy Claim ______________________
To establish a violation of the accuracy provision
of the Privacy Act, a plaintiff must show that: (1) the
agency failed to maintain accurate records; (2) an adverse
agency decision resulted from the failure to maintain
accurate records; and (3) the agency's actions were willful
and intentional. See, e.g., White v. Office of Personnel ___ ____ _____ ____________________
Management, 840 F.2d 85, 87 n.1 (D.C. Cir. 1988). For __________
purposes of the decision below and this appeal, BOP has
assumed that Kellett's record contains both the inaccurate
loss figure and the inaccurate characterization of Kellett's
behavior leading to the obstruction-of-justice charge.
As noted above, the district court held that
Kellett had failed to establish the requisite causation. On
appeal, Kellett challenges the district court's holding
because, among other reasons, the court relied on affidavits
alleged to violate Fed. R. Civ. P. 56(e). We affirm on
different grounds, see Acha v. United States, 910 F.2d 28, 30 ___ ____ _____________
(1st Cir. 1990) (a court of appeals may affirm on any ground
presented by the record), and thus do not reach the merits of
Kellett's arguments regarding causation. After careful
review of the record, we conclude that, as to the
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obstruction-of-justice charge, Kellett has failed to
establish that BOP's actions were willful and intentional.3
A plaintiff may establish a willful Privacy Act
violation by showing that the agency acted without grounds
for believing its action to be lawful, or in "flagrant
disregard" for rights under the Act. See, e.g., Wilborn v. ___ ____ _______
Department of Health & Human Servs., 49 F.3d 597, 602 (9th _____________________________________
Cir. 1995). To survive summary judgment, the evidence must
demonstrate conduct "greater than gross negligence" or
conduct showing "reckless behavior and/or knowing violations"
of the Privacy Act. Moskiewicz v. Department of Agric., 791 __________ ____________________
F.2d 561, 564 (7th Cir. 1986). It is not enough to show that
an agency may have undertaken voluntary actions which
inadvertently violated some provision of the Act. Albright ________
v. United States, 732 F.2d 181, 189 (D.C. Cir. 1984). _____________
Kellett fails to support his claim with any
evidence establishing that BOP's acts were willful or
intentional. Principally, Kellett fails to identify any
reasonable basis for BOP officials to question the accuracy
of Hinkle's statements. To be sure, Kellett repeatedly
expressed concern that Hinkle was vindictive, but we see
nothing in the record upon which to suggest that the
____________________
3. As to the inaccurate loss figure, the record is devoid of
any indication that BOP officials relied on it in making
their adverse determination. Accordingly, Kellett has failed
to carry his burden and summary judgment was appropriate.
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officials ever thought there was a possibility that Hinkle
may have misrepresented the circumstances surrounding the
obstruction-of-justice charge. The only BOP decisionmaker
who actually knew that Kellett disputed Hinkle's statement ____
was national inmate appeals administrator Megathlin.
Megathlin, however, did not rely on the inaccurate
information in making his adverse decision. Rather, as noted
above, he denied Kellett's placement on the basis of the
general nature of Kellett's offenses and on the length of
Kellett's sentence. Simply stated, there is no basis upon
which to conclude that BOP officials willfully or
intentionally maintained inaccurate information regarding
Kellett. Thus, summary judgment was appropriate. Cf. Hill __ ____
v. United States Air Force, 795 F.2d 1067 (D.C. Cir. 1986). _______________________
C. The Access Claim ____________________
The Privacy Act requires an agency maintaining a
"system of records" to give individuals, upon request, access
to their records or to information about them contained in
the system. 5 U.S.C. 552a(d)(1). If the agency refuses to
comply with such a request, an individual may sue the agency
for injunctive relief, seeking production of the records. 5
U.S.C. 552a(g)(1)(B) & (g)(3)(A). An agency may exempt a
system of records, 5 U.S.C. 552a(j), if the system of
records meets certain criteria, 5 U.S.C. 552a(j)(2)(A)-(C).
Records are exempt if, inter alia, they are "reports _____ ____
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identifiable to an individual compiled at any stage of the
process of enforcement of the criminal laws from arrest or
indictment through release from supervision." 5 U.S.C.
552a(j)(2)(C). Such BOP reports have been exempted from both
the access provisions of the Privacy Act and access suits
brought thereunder. See 28 C.F.R. 16.97(a), (b)(3) & (9). ___
Because the records containing Hinkle's comments fall within
the scope of 552a(j)(2)(C), the district court properly
granted summary judgment.
III. III. ____
CONCLUSION CONCLUSION __________
For the foregoing reasons, the decision of the
district court is affirmed. affirmed. ________
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Document Info
Docket Number： 94-1898
Filed Date： 9/18/1995
Precedential Status： Precedential
Modified Date： 9/21/2015