Kellett v. US Bureau of Prisons

Opinion

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                                [NOT FOR PUBLICATION]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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                                          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.


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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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                                          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).
            _______


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                                          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


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                                          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.  



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                                          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
                                        _____  ____


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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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