                         Revised May 3, 2001

                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                            No. 00-50262



                      JAMES A. BETTERSWORTH,

                                               Plaintiff-Appellant,


                               VERSUS


      FEDERAL DEPOSIT INSURANCE CORPORATION; OFFICE OF THE
   COMPTROLLER OF THE CURRENCY; BOARD OF THE FEDERAL RESERVE;
               FEDERAL RESERVE BANK OF KANSAS CITY,

                                               Defendants-Appellees.




          Appeal from the United States District Court
                For the Western District of Texas


                           April 12, 2001
Before REAVLEY, SMITH, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

     Plaintiff James A. Bettersworth appeals the district court's

order granting summary judgment in favor of defendants, the Federal

Deposit Insurance Corporation (FDIC), the Office of the Comptroller

of the Currency (Office of the Comptroller of the Currency), the

Board of Governors of the Federal Reserve System (the Board), and

the Federal Reserve Bank of Kansas City (the Reserve Bank), and
dismissing his claims.      We affirm.

                                 I.    BACKGROUND

       Bettersworth   has   an    extensive    background   in   the   banking

industry, which is well documented in the summary judgment record

before the Court. Between 1973 and 1980, Bettersworth was employed

by the First National Bank of Seguin. In 1981, Bettersworth formed

Southwest Commercial Capital, Inc. (SWCC), which is described as a

venture capital company.              In 1983, Bettersworth founded First

Commercial Bank of Seguin, Texas (FCB), a federally chartered bank,

where he served as Chief Executive Officer and Chairman of the

Board until 1989.       In 1984, Bettersworth formed Southwestern

ComCorp, Incorporated (ComCorp), a non-bank holding company.

Bettersworth also formed a second small business investment company

called Southwestern Venture Capital (SVC).             Bettersworth placed

SWCC and SVC under the umbrella of ComCorp.             Bettersworth owned

either a participatory interest or a management position or both in

these ventures.   Bettersworth also owned a controlling interest or

management position in other related financial institutions.

       In 1987, ComCorp acquired the Republic Bank of Tecumseh,

Oklahoma (RBT) by foreclosure, and Bettersworth assumed control of

RBT.    The Bank Holding Company Act (BHCA), 12 U.S.C. § 1841-1850,

provides that no company may gain control of a bank without prior

approval of the Board of Governors of the Federal Reserve System.

See 12 U.S.C. § 1841; id. § 1842(a).          The Act contains an exception



                                         2
to the requirement for prior Board approval when controlling

interest in a bank is obtained in the course of collecting upon a

previously contracted debt.   12 U.S.C. § 1841(a).    In such a case,

the company assuming control of the bank must divest itself of the

acquired bank shares within two years.      Id. That two-year period

may be extended one year at a time, but the maximum time period

during which a company may hold shares giving it a controlling

interest in a bank is five years.    Id.   ComCorp's foreclosure of a

debt owed by one of RBT's officers and guaranteed by RBT assets

fell within the foreclosure exception to the requirement for prior

Board approval.    Moreover, ComCorp received an extension, which

permitted ComCorp to hold RBT for up to five years, or until

December 1993, before securing Board approval or divesting itself

of the RBT assets.

     In 1989 or 1990, Bettersworth resigned from his positions with

FCB and RBT.   Bettersworth also lost control of ComCorp.   In early

1993, Bettersworth and a partner regained controlling interest in

ComCorp.   In October 1993, ComCorp filed an application for bank

holding company (BHC) status under the BHCA with the Federal

Reserve Bank of Kansas City (the Reserve Bank).      Federal Reserve

Banks are authorized to receive and review applications for BHC

status.    The controlling regulations permit the Reserve Bank to

either approve the application or to refer it to the Board.    See 12

C.F.R. § 225.15.     Thus, the Reserve Bank has no authority to


                                 3
finally deny an application for BHC status.                      When considering

whether to approve an application for BHC status, the Board is

authorized to consider inter alia “the financial and managerial

resources and future prospects of the company or companies and the

banks    concerned,”   id.    §    1842(c)(2),          which   in   turn    includes

“consideration of the competence, experience, and integrity of the

officers, directors, and principal shareholders of the company or

bank, id. § 1842(c)(5).

      ComCorp's application for BHC status proposed that ComCorp

retain    100   percent      of    RBT.           The     application       disclosed

Bettersworth’s prior affiliations with FCB and RBT.                   Accordingly,

Pamela Johnson, the Reserve Bank official assigned to review the

application, began retrieving and reviewing the records maintained

by other banking regulatory agencies on those banks.

      Johnson   reviewed     OCC    records       relating      to   the    financial

condition    and   management      of     FCB.1         Those    records     included

unfavorable assessments of both the condition of the bank and the

bank's management, including Bettersworth.                      Records from bank

examinations conducted shortly after Bettersworth left FCB reported

that the bank was in bad financial shape and suggested that

Bettersworth's placement of SBA loans generated by ComCorp or its


  1
   The Office of the Comptroller of the Currency (OCC) is the
primary federal regulator of nationally chartered banks. OCC is
involved in this case because of Bettersworth's affiliation with
FCB, a federally chartered bank that was a member of the Federal
Reserve System.

                                          4
affiliates            contributed     to   the       bank's    poor    financial   status.

Johnson also reviewed the OCC's Supervisory Monitoring System

(SMS), a confidential database maintained by the OCC and accessible

with a password by other banking regulatory agencies.                              The SMS

likewise            contained   an    entry     blaming       Bettersworth   and    another

individual for the “bank’s poor condition,” and concluding that

“these individuals should not be approved in an executive capacity

at       a     troubled     institution.”             Bettersworth       identifies    this

statement in the OCC database as an adverse determination within

the meaning of the Privacy Act, 5 U.S.C. § 552a(g)(1)(c).

         Johnson also reviewed FDIC2 records relating to the financial

condition            and   management      of    RBT.          Those    records    included

unfavorable assessments of both the condition of the bank and the

bank's          management,        including         Bettersworth.         Records     from

examinations conducted after Bettersworth left RBT reported that

the          bank    was   in   bad    financial        shape     and    suggested     that

Bettersworth's placement of SBA loans generated by ComCorp or its

affiliates            contributed     to   the       bank's    poor    financial    status.

Certain         records     also     suggested       that     Bettersworth   and    another




     2
   FDIC is a corporation created by Congress, which insures the
deposits of banks and savings associations.      FDIC is also the
primary federal regulator for state chartered banks that are not
members of the Federal Reserve System. FDIC is involved in the
case because of Bettersworth's affiliation with RBT, a state
chartered bank that was not a member of the Federal Reserve System.


                                                 5
individual forced RBT into foreclosure so that SWCC could obtain

the assets of RBT without having to comply with the BHCA.

     Johnson also telephoned OCC and FDIC examiners familiar with

FCB and RBT examinations and discussed these matters with the

examiners.   Johnson also consulted internal Reserve Bank records.

Through her investigations, Johnson learned that the banks had

charged off large loans made to Bettersworth or his companies.

Bettersworth's personal guarantee on one such loan had forced his

own personal bankruptcy. In sum, Johnson's investigation generated

significant questions concerning, among other things, the RBT

foreclosure, Bettersworth's decision to place a substantial number

of SBA loans generated by his own companies with banks which he

also controlled, and Bettersworth's failure to honor or default

upon certain loans extended to him personally or to his companies

by the banks which he managed.   Johnson eventually authored a memo

to Reserve Bank vice-president Stephen McBride, setting out the

problems with ComCorp's BHCA application.

     On November 5, 1993, Reserve Bank vice-president McBride

issued a letter stating that the Reserve Bank had completed its

review and identified several areas of concern with respect to the

application.   The areas of concern were stated in some detail and

specific questions were posed at the end of the letter, the answers

to which could have significantly enhanced the possibility of

approval.    The letter concluded that, based upon the existing



                                 6
information, the prospects for approval were "extremely dim," and

that any further application would be considered directly by the

Board. ComCorp did not, however, pursue the application further by

providing       the    specific        information         requested        in    an    amended

application       to     the     Board.         Rather,       ComCorp       abandoned         the

application and negotiated the sale of RBT, which closed in early

1994.

       In 1995, Bettersworth decided he wanted to start a new bank in

Lakeway, Texas and began trying to clear his name.                           After informal

efforts failed, Bettersworth made Privacy Act requests in October

1995.    Bettersworth requested records on himself, stating three

variations on his name.                The agencies responded that they either

did    not   have      records    responsive          to   his    request        or    that    the

documents       they     had     were     not       subject      to   the    Privacy          Act.

Bettersworth subsequently learned that the agencies maintained

confidential records relating to bank examinations that sometimes

contained     comments         about    bank    management.           Bettersworth            made

another Privacy Act request for those records, which was denied

because the records were not kept in a "system of records" tied to

his name.       There does not appear to be any dispute about the fact

that    these    records        were    maintained,         in    accordance           with    the

agencies' regulatory purpose, in files on the banks with which

Bettersworth was affiliated rather than in a file on Bettersworth.




                                                7
                          II.    PROCEDURAL HISTORY

      In August 1997, Bettersworth filed suit claiming that the

defendant agencies violated his rights under the Privacy Act,

5 U.S.C. § 552a.             Bettersworth raised three claims.                      First,

Bettersworth claimed that the agencies denied his request for

access to information about him in a Privacy Act system of records,

in violation of 5 U.S.C. § 552a(d)(1) (obligating an agency to

provide access to covered records); see also id. § 552a(g)(1)(B)

(providing a civil remedy for violation of § 552a(d)(1)).                          Second,

Bettersworth claimed that the agencies made a number of adverse

determinations about him on the basis of inaccurate and incomplete

records, in violation of 5 U.S.C. § 552a(g)(1)(C).                                Finally,

Bettersworth      claimed      that       the   agencies       violated      subsection

552a(e)(1) (requiring that agencies maintain only such records as

are   required     to   perform       a    legitimate         agency   function)       and

subsection      552a(e)(7)     (prohibiting       the    maintenance         of    records

describing how an individual exercised First Amendment rights

unless authorized by statute or the subject individual) “in such a

way   as   to    have   an    adverse       effect      on"     him.   See    5     U.S.C.

§ 552a(g)(1)(D).3


 3
  Bettersworth also alleged that the agencies violated subsection
552a(e)(5) which requires agencies to “maintain all records which
are used by the agency in making any determination about any
individual with such accuracy, relevance, timeliness, and
completeness as is reasonably necessary to assure fairness to the
individual in the determination.” This statutory obligation is
made enforceable by substantively identical language in subsection

                                            8
      In January 1998, the agencies filed a motion to dismiss, which

was denied.   In February 1999, Bettersworth amended his complaint

to allege additional facts in support of his three Privacy Act

claims.    In June 1999, Bettersworth moved for partial summary

judgment on the access claim.     That same month, the agencies filed

a motion to dismiss, or in the alternative, for summary judgment.

The district court referred the motions to a magistrate judge, who

recommended that the agencies' motion be granted.           Bettersworth

filed objections, and the district court conducted a de novo

review, after which the district court granted the agencies' motion

and   dismissed   all   of   Bettersworth's   claims    with   prejudice.

Bettersworth filed a timely notice of appeal.

      Summary judgment is appropriate when there are no genuine

issues of material fact, and the moving party is entitled to

judgment as a matter of law.    FED. R. CIV. P. 56.    A moving party may

rely upon the absence of evidence to support an essential element

of the non-movant's case.       See Duffy v. Leading Edge Prods., 44

F.3d 308, 310 (5th Cir. 1995).     Once that showing is made, the non-

moving party is required to come forward with specific and credible

facts that would support a reasonable inference of liability with

respect to the essential elements of the non-moving party's claims.

Id.    Thus, the district court was charged with examining the


552a(g)(1)(C).     Bettersworth's allegation under subsection
552a(e)(5) is therefore subsumed by his allegation under subsection
552a(g)(1)(C).

                                    9
summary judgment evidence to determine whether there was evidence

supporting each of the essential elements of Bettersworth's access,

adverse determination, and adverse effect claims under the Privacy

Act.     We review the district court's decision granting summary

judgment de novo, applying the same standards as did the district

court.    Id. at 312.

                     III.    BETTERSWORTH'S ACCESS CLAIM

       Subsection 552a(d)(1) of the Privacy Act provides that each

agency that maintains a system of records shall:

               (1) upon request by any individual to gain access
               to his record or to any information pertaining to
               him which is contained in the system, permit him
               and upon his request, a person of his own choosing
               to accompany him, to review the record and have a
               copy made of all or any portion thereof in a form
               comprehensible to him, except that the agency may
               require the individual to furnish a written
               statement    authorizing   discussion    of   that
               individual's record in the accompanying person's
               presence.

5 U.S.C. § 552a(d)(1).            Subsection 552a(a)(5) defines “system of

records” as follows:

               (5) the term “system of records” means a group of
               any records under the control of any agency from
               which the 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).             Subsection 552a(g)(1) provides a civil

remedy for violation of subsection 552a(d)(1).

       The threshold issue in any claim alleging denial of access

under    the    Privacy     Act   is   whether   the   records   sought   by   the

                                          10
plaintiff are maintained in a "system of records" retrievable by an

"identifying     particular      assigned    to"   the   plaintiff.          This

qualifying language in the statute reflects a statutory compromise

between affording individuals access to those records relating

directly    to   them     and   protecting   federal     agencies     from    the

burdensome task of searching through agency records for mere

mention of an individual's name. Many of the published Privacy Act

cases are aimed at giving meaning to this statutory requirement.

See, e.g., Gowan v. United States Dep’t of the Air Force, 148 F.3d

1182, 1191 (10th Cir. 1998) (file marked "ethics" was not a

surrogate identifier for plaintiff under ethics investigation and

thus records were not accessible under the Privacy Act, even though

the file contained information about the plaintiff); Hudson v.

Reno, 130 F.3d 1193, 1206        (6th Cir. 1997) (records not accessible

under the Privacy Act because not retrievable by the plaintiff’s

name); Henke v. United States Dep’t of Commerce, 83 F.3d 1453 (D.C.

Cir. 1996) (records not accessible under the Privacy Act, even

though agency could search for the records by the plaintiff’s name,

because    the   agency    as   a   practical   matter    did   not    use    the

information that way); Cuccaro v. Secretary of Labor, 770 F.2d 355,

359-60 (3d Cir. 1985) (documents relating to agency’s investigation

of accident involving plaintiff were not tied to plaintiff’s name

and thus not accessible under the Privacy Act); Wren v. Heckler,

744 F.2d 86, 90 (10th Cir. 1994) (records not accessible under the


                                       11
Privacy Act because not retrievable by the plaintiff’s name, even

though the information related to plaintiff).

       The district court held that the records Bettersworth wants,

primarily information retrieved by Reserve Bank examiner Johnson

from various agencies and then included in Reserve Bank files

concerning       ComCorp’s     application        for    BHC   status,      were    not

maintained in a system of records retrievable by Bettersworth’s

name, and were therefore not accessible under § 552a(d)(1).                        There

does not appear to be any dispute about the fact that the records

were    maintained       in   files   referencing        the       banks   with    which

Bettersworth was associated, rather than Bettersworth personally.

Further, there does not appear to be any dispute about the fact

that the files were maintained for the purpose of discharging the

responsibilities vested by federal law with the defendant agencies.

       Bettersworth urges the Court to interpret the statute broadly

to require that he be given access to the agencies’ records in this

case   because     the    records     pertained     to    him.        Alternatively,

Bettersworth maintains that the agencies used the bank files as

surrogate identifiers for records pertaining to him. We decline to

interpret the statute in a manner that would deny meaning to the

statutory language requiring that the records be retrievable “by

some identifying number, symbol, or other identifying particular

assigned    to    the     individual.”        5    U.S.C.      §    552a(a)(5);     id.

§ 552a(d)(1). Moreover, Bettersworth's assertion that the agencies



                                         12
used the bank files as a surrogate identifier for information

relating to him finds no support in the record.   For these reasons,

we affirm the district court's dismissal of Bettersworth's claim

that he was denied access to records subject to disclosure under

the Privacy Act.

          IV.   BETTERSWORTH'S ADVERSE DETERMINATION CLAIM

     Subsection 552a(g)(1)(C) provides a civil remedy whenever an

agency:

           fails to maintain any record concerning any
           individual   with   such   accuracy,   relevance,
           timeliness, and completeness as is necessary to
           assure fairness in any determination relating to
           the   qualifications,   character,   rights,   or
           opportunities of, or benefits to the individual
           that may be made on the basis of such record, and
           consequently a determination is made which is
           adverse to the individual.

5 U.S.C. § 552a(g)(1)(C).     Bettersworth's adverse determination

claim is premised almost entirely upon the Reserve Bank’s handling

of ComCorp’s BHCA application.    Specifically, Bettersworth claims

that the following items constitute adverse determinations against

him within the meaning of § 552a(g)(1)(C): (1) Reserve Bank vice-

president McBride's November 5, 1993 letter informing ComCorp that

the prospects for approval of its BHCA application were extremely

dim, and that further applications would be reviewed directly by

the Board; (2) oral statements made by McBride during a telephone

conversation with Bettersworth's lawyers about the viability of

ComCorp's BHCA application; (3) Reserve Bank examiner Johnson's



                                 13
working papers and notes prepared in the course of her review of

ComCorp's BHCA application; and (4) the entry in the OCC's SMS

database flagging Bettersworth's role in the financial decline of

FCB.       The   district    court   held    that    Bettersworth’s    adverse

determination claim failed as a matter of law because none of the

various      statements     and   writings   identified     by     Bettersworth

constituted an "adverse determination" within the meaning of the

statute.

       The district court held that McBride's November 5, 1993 letter

was    the   only   item    relied   upon    by     Bettersworth   which   even

potentially constituted an adverse determination.                The remaining

items concern information allegedly relied upon to draft that

letter.4     The district court held that McBride's November 5, 1993

letter did not constitute a determination because the letter

identified other reasons for the Reserve Bank’s disinclination to

approve the application.          The district court also suggested that

ComCorp (or Bettersworth) decided not to pursue an application with



  4
   On this point, we note that Bettersworth's allegations do not
directly identify adverse determinations made by each and every
defendant agency. To the contrary, Bettersworth premises his claim
against the other defendants primarily upon the fact that the
Reserve Bank accessed and relied upon records from the other
agencies when making its determination. At least one court has
recognized that such a connection may be sufficient to support
liability. See Dickson, 828 F.2d at 36. Because we affirm the
district court's decision that the items identified by Bettersworth
do not constitute an adverse determination under the statute in any
event, we need not and do not decide whether such a showing is
sufficient in this Circuit.

                                       14
the Board     because      there    were   no    satisfactory    answers    to   the

legitimate questions asked in McBride’s letter.

      The agencies argue that the November 5, 1993 letter cannot be

considered an adverse determination because the Reserve Bank had no

authority     to    deny    ComCorp’s       application.        The   controlling

regulations permit only two courses of action; the Reserve Bank can

either approve an application for BHC status or refer it to the

Board for further consideration.                See 12 C.F.R. § 225.15.      Thus,

the agencies maintain that there could be no determination unless

and until ComCorp forwarded an application to the Board and it was

finally denied.      See Deters v. United States Parole Comm’n, 85 F.3d

655 (D.C. 1996).        Given that ComCorp abandoned that effort, the

matter was terminated before an administrative determination could

be made.    In this same vein, the defendant agencies maintain that,

even if the November 5, 1993 letter constituted a determination of

any sort, it would be a determination against ComCorp, the company

making     the     application,       rather      than    against     Bettersworth

personally.      Having reviewed the record, we are persuaded that the

diverse grounds relied upon in the Reserve Bank's letter, coupled

with the fact that ComCorp was the entity applying for BHCA status,

provide adequate support for the district court's conclusion that

the   November     5,   1993   letter      did    not    constitute    an   adverse

determination       against        Bettersworth      within     the   meaning     of

§ 552a(g)(1)(C).


                                           15
     With regard to the remaining items identified by Bettersworth

as adverse determinations, the agencies ask the Court to hold that

the word "determination" as used in the statute must mean something

akin to a formal or final administrative decision.   We need not go

that far in order to say that no determination was made in this

case.   At the very least, informal oral or written statements made

in the deliberative process about a particular administrative

determination do not constitute the determination itself.       We

therefore    affirm   the   district   court's   conclusion   that

Bettersworth's adverse determination claim fails because there was

no evidence of an adverse administrative determination against him.

See 5 U.S.C. § 552a(g)(1)(C) (providing that the determination must

be adverse “to the individual”).

              V. BETTERSWORTH'S ADVERSE EFFECT CLAIM

     Subsection 552a(g)(1)(D) provides for a civil remedy whenever

an agency “fails to comply with any other provision of this

section, or any rule promulgated thereunder, in such a way as to

have an adverse effect on an individual.”     Bettersworth asserts

that the defendant agencies kept information on him that was

unnecessary to the agencies’ mandated purpose, in violation of

subsection 552a(e)(1), and that the agency maintained records

describing Bettersworth’s exercise of his First Amendment rights,

in violation of subsection 552a(e)(7).       Beyond these general

assertions, Bettersworth does not describe what portions of which


                                 16
records   maintained   by   which   agencies   show   such   violations.

Bettersworth simply states that the cause of action is supported by

his affidavit. Bettersworth then relies upon the district court’s

failure to address this claim in detail to excuse his own duty to

brief it on appeal.

     Federal Rule of Appellate Procedure 28 requires that appellate

parties provide cogent argument, supported by citation to relevant

authorities, statutes, and the record, for all points raised on

appeal.   Without such argument, this Court is in no position to

provide any meaningful review. In the absence of such briefing, we

decline to address Bettersworth's claim that the district court

erroneously dismissed his § 552a(g)(1)(D) claim. See, e.g., Matter

of T-H New Orleans Ltd. Partnership, 116 F.3d 790, 796 (5th Cir.

1997); Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521,

532 (5th Cir. 1996).

                              CONCLUSION

     The district court's order granting summary judgment in favor

of the defendants (the Federal Deposit Insurance Corporation, the

Office of the Comptroller of the Currency, the Board of Governors

of the Federal Reserve System, and the Federal Reserve Bank of

Kansas City) and dismissing plaintiff Bettersworth's Privacy Act

claims with prejudice is AFFIRMED.




                                    17
