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[NOT FOR PUBLICATION]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 Wi

_________________

Assistant United States Attorney, on brief for appellee.

____________________

___________________

Per curiam.
Per curiam.
___________

H.

Raymond

Kellett,

Jr.,1 alleges

violations of the Privacy Act, 5 U.S.C.

of Prisons ("BOP") and

552a(g)(4)(A)

552a, by the Bureau

seeks damages pursuant to 5

& (B).

The district

judgment in favor of BOP.

court granted

U.S.C.

summary

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.

1991, he pled guilty

and

to obstructing

grand jury

justice by

testimony of his

sentenced him

prison in

to making false statements to

to serve

attempting to

secretary.

one year

The

In

the bank

influence the

district court

and one day

Allenwood, Pennsylvania, beginning on

at a

federal

January 28,

1992.

After about

1992 --

to

three months at Allenwood

prison officials recommended Kellett

a community corrections center ("CCC").

Kellett signed

However,

in June,

prosecutor

Hinkle

documents necessary

in his

("Hinkle"),

officials told

case,

had

Assistant

objected,

-- in April

for a transfer

On May 17, 1992,

to effect his

Kellett that

transfer.

because the

U.S. Attorney

in

accordance

Margaret

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

of seeking

Kellett that BOP had

the prosecutor's

an unwritten policy

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.

-33

rescinded.

Kellett's

The record indicates that

transfer

during

telephone

Kellett's case manager, Robert Adams.

not entirely clear,

conversation

with

sometime in June.

it appears that

Hinkle

were

Hinkle had objected to

conversation

with

Although the record is

Adams's notes from

placed

in

Kellett's

his

file

Invoking

appealed the

administrative

transfer denial.

C. Sizer, Jr., upheld

procedures,

After

Kellett

Allenwood's warden, F.

the denial, Kellett appealed to

deputy regional director N. Lee Conner.

BOP's

Conner again denied

the appeal, stating:

[Despite
house

an

initial

recommendation,]

review and contact

it was determined
inappropriate.
you

favorable

were

halfway

upon

with other

further
agencies,

CCC placement would be

This is based on the fact

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

staff

at

[Allenwood]

this information,
determined

CCC

placement would be inappropriate.

(emphasis

added).

Kellett

appealed

Conner's

decision to

BOP's

Washington,

apparently

intimidation

based

on

and

because of:

that

office,

inaccurate

coercion.

administrator John

determined

D.C.,

(1) the

had properly

that

information

National

Megathlin denied

Sizer

arguing

inmate

the appeal.

denied

nature of Kellett's

was

regarding

appeals

Megathlin

placement

criminal offenses,

and (2) the short length of Kellett's sentence.

-44

CCC

it

Meanwhile, Kellett sought

copies of Adams's

and other documents relating to his transfer.

Kellett's inquiries, Adams

would

have to submit a

Washington, D.C.

suit.

violated the so-called

Act, 5

U.S.C.

denial was

file.

general counsel in

and, upon release from

Kellett alleges that BOP willfully

"accuracy provision"

552a(g)(1)(C),

of the

because Kellett's

based on inaccurate information

Kellett claims

(1) that his

him that he

Kellett never submitted such a request.

Kellett served his sentence

prison, filed this

In response to

and Conner both told

request to BOP's

notes

Privacy

transfer

contained in his

the record contained two inaccuracies:

obstruction-of-justice conviction resulted from

intimidation and coercion; and (2) that Kellett had caused

loss of $800,000 by making false statements.

He also alleges

that BOP violated the "access provision" of the

5 U.S.C.

copies

552a(d)(1), because BOP

of

comments.

Adams's

notes

Privacy Act,

did not turn over to

allegedly

containing

After Kellett filed requests

him

Hinkle's

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.

United States, 856

______________

supported its

Casey

F.

Supp. 65,

motion with

(Sizer's predecessor

68

(D.N.H. 1994).

three affidavits --

at

Kellett v.
_______

BOP

from Patrick

Allenwood), deputy

regional

-55

director

Conner, and inmate appeals administrator Megathlin.

Kellett objected to the affidavits on several grounds.

The district court granted summary judgment.

the

accuracy

claim,

the

court

held

that

the

As to

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

obstruction of justice

nature of

conviction.

evidence makes it pellucid

loss

figure

and

circumstances

that $800,000
erroneous

regarding the

obstruction

substantially relied

rendering the decision to deny CCC

placement.

Even

considered

to

consideration

if these
some

would

factors were
degree

have been

since there was sufficient cause

Kellett

The

the

of justice were not

on in

the

CCC

placement

based

their
harmless
to deny
on

the

seriousness of the underlying offense and

brevity of the sentence received.

Id. at 71.
___

the

trio of

The court did not consider Kellett's objection to

affidavits.

Additionally, the

district court

noted, but did not hold, that Kellett "would have difficulty"

establishing

that

BOP

had

willfully

maintained

inaccurate records.

court held

that

intentionally

to the access claim, the

applicable regulations

records from the access

at 68-69.

As

and

exempted

Kellett's

provisions of the Privacy Act.

This appeal followed.

-66

Id.
___

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

judgment de
__

favorable

12

review the

district court's

novo, considering
____

the facts

to the nonmoving party.

(1st Cir. 1995).

Udo
___

grant of

summary

in the light

most

v. Tomes, 54 F.3d 9,
_____

Summary judgment should be granted when

"the

pleadings, depositions, answers to interrogatories, and

admissions on

that there

file, together

is no genuine

that the moving party is

of

law."

elusive

Fed.

summary judgment

rests

merely

inferences,

P. 56(c).

as

may be

upon

issue as to any

block

will

intent

appropriate if the

conclusory

summary judgment."

materialize, is

issue,

improbable

Medina-Munoz v.
____________

(1st Cir.

coupled with earnest hope

eventually

cases where

are at

allegations,

F.2d 5, 8

a matter

nonmoving party

speculation."

R.J. Reynolds Tobacco Co., 896

__________________________

concrete

material fact and

"Even in

motive or

and unsupported

"Brash conjecture,

any, show

entitled to a judgment as

R. Civ.

concepts such

with affidavits, if

1990).

that something

insufficient

to

Dow v. United Bhd. of Carpenters &

___
___________________________

Joiners, 1 F.3d 56, 58 (1st Cir. 1993).

_______

-77

B. The Accuracy Claim

______________________

To establish a violation of the

of

the

Privacy Act,

agency failed

agency

a plaintiff

to maintain

decision

resulted

must

from

the

failure

and (3) the agency's

and intentional.

See,
___

purposes

of the

assumed that

loss

840 F.2d

e.g., White
____ _____

85,

decision

show that:

accurate records; (2)

accurate records;

Management,
__________

accuracy provision

87 n.1

(1) the

an adverse

to

maintain

actions were willful

v. Office of Personnel
____________________

(D.C.

below and

Kellett's record contains

Cir. 1988).

this

appeal, BOP

both the

For

has

inaccurate

figure and the inaccurate characterization of Kellett's

behavior leading to the obstruction-of-justice charge.

As

noted

above,

the

Kellett had failed to establish

district

court

held

the requisite causation.

that

On

appeal,

Kellett

challenges

the

because, among other reasons,

alleged

to

violate Fed.

district

court's

holding

the court relied on affidavits

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

review

of

arguments

the

regarding

record,

we

causation.

conclude

-88

that,

After

as

careful

to

the

obstruction-of-justice

charge,

Kellett

has

failed

to

establish that BOP's actions were willful and intentional.3

plaintiff may

violation by

for

believing

showing that

its action

disregard" for rights under

establish

a willful

the agency acted

to

be

lawful, or

the Act.

Privacy Act

without grounds

in

See, e.g.,
___ ____

Department of Health & Human Servs., 49 F.3d

_____________________________________

"flagrant

Wilborn v.
_______

597, 602 (9th

Cir. 1995).

To survive

demonstrate

conduct

summary judgment, the evidence

"greater

than

gross

must

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).

an

agency

may

have

inadvertently violated

It is not enough to show that

undertaken

voluntary

actions

some provision of the

Act.

which

Albright
________

v. United States, 732 F.2d 181, 189 (D.C. Cir. 1984).

_____________

Kellett

evidence

establishing

intentional.

Hinkle's

to

support

that

BOP's

his

acts

Principally, Kellett

reasonable basis

of

fails

fails

for BOP officials to

statements.

To

be

claim

with

any

willful

or

to identify

any

were

question the accuracy

sure, Kellett

repeatedly

expressed

nothing

concern that

in

the

record

Hinkle

upon

was vindictive,

which

to

suggest

but we

see

that

the

____________________

3.
any

As to the inaccurate loss figure, the record is devoid of

indication that

BOP

officials relied

their adverse determination.

on it

in making

Accordingly, Kellett has failed

to carry his burden and summary judgment was appropriate.

-99

officials ever

may have

thought there

misrepresented

obstruction-of-justice

who

was

actually knew
____

national

Megathlin,

was a possibility

the circumstances

charge.

The only

that Kellett disputed

inmate

however,

appeals

did

not

surrounding

Hinkle's statement

administrator

rely

general

denied

Kellett's placement

nature of

Kellett's offenses

Kellett's sentence.

which

to

intentionally

conclude

on

maintained

BOP

inaccurate

Rather, as noted

basis of

and on the

willfully

information

the

length of

is no basis

officials

inaccurate

Megathlin.

the

on the

Simply stated, there

that

the

BOP decisionmaker

information in making his adverse decision.

above, he

that Hinkle

upon

or

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

the system.

comply

5 U.S.C.

information about them

552a(d)(1).

If the agency refuses to

with such a request, an individual may sue the agency

for injunctive relief, seeking production

U.S.C.

system

552a(g)(1)(B) &

of

records, 5

(g)(3)(A).

U.S.C.

are

exempt

if,

inter
_____

of the records.

An agency may

552a(j),

records meets certain criteria, 5 U.S.C.

Records

contained in

alia,
____

if the

exempt a

system of

552a(j)(2)(A)-(C).

they

are

"reports

-1010

identifiable to an

process

individual compiled at

of enforcement of

indictment

through release

552a(j)(2)(C).

the access

any stage of

the criminal laws

from supervision."

the

from arrest or

U.S.C.

Such BOP reports have been exempted from both

provisions of

the Privacy

Act and

access suits

brought

thereunder.

See 28 C.F.R.
___

Because the records containing

the

scope of

16.97(a), (b)(3) & (9).

Hinkle's comments fall within

552a(j)(2)(C),

the district

court properly

granted summary judgment.

III.
III.
____

CONCLUSION
CONCLUSION
__________

For

the

foregoing

district court is affirmed.

affirmed.
________

reasons, the

decision

of the

-1111