
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          September 18, 1995                                [NOT FOR PUBLICATION]                           UNITED STATES COURT OF APPEALS                                 FOR THE FIRST CIRCUIT                                  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.                                         -3-                                          3            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.                                         -4-                                          4                      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                                         -5-                                          5            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.                                         -6-                                          6                                         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).            _______                                         -7-                                          7            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                                         -8-                                          8            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.                                           -9-                                          9            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                                        _____  ____                                         -10-                                          10            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.                              ________                                         -11-                                          11
