EDWARDS, Senior Circuit Judge:
This is the third time that we have heard an appeal involving the parties in this case. This litigation is now thirteen years old and, unsurprisingly, it presents a weighty and complicated record. The case concerns trust fund claims brought pursuant to 28 U.S.C. § 1331 and 31 U.S.C. § 1321, and Privacy Act claims arising under 5 U.S.C. § 552a(g)(1). The appellants, Keith Maydak, Paul Lee, and Gregory A. Smith, were incarcerated in federal prison facilities when this action was initiated in the District Court, but they are no longer in federal custody. Their action was lodged against the Bureau of Prisons ("BOP") and the United States (collectively, "the Government").
Appellants' complaint is aimed at the operation of inmate photography programs at several BOP correctional facilities. The photo programs allow inmates to have their pictures taken, either by themselves or with visitors, at the cost of $1.00 per photo. The cost of the program is covered by monies from the Inmate Trust Fund, a trust administered by the United States government that provides programs, goods, and services to federal prison inmates nationwide. Until recently, several prison facilities that participated in the program regularly obtained two copies of each photograph, giving one print to the inmate while retaining the duplicate print. These duplicates were reviewed by BOP officials for various purposes, including detection of inappropriate inmate gestures or relevance to internal investigations of suspected gang activity.
In 1997, upon learning that BOP officials were secretly retaining duplicate prints, Lee, along with two of his fellow inmates, Maydak and Ambrose Mitchell, the latter of whom was eventually replaced in this litigation by Smith, filed a complaint in the District Court. They alleged, in relevant part, that (1) BOP's charges for and uses of the duplicate prints for security-related purposes violated the terms of the Trust; and (2) BOP's undisclosed retention of duplicate prints violated various provisions of the Privacy Act. Throughout this litigation, the Government has maintained that
Following proceedings on remand of the case, the District Court granted summary judgments in favor of the Government. Maydak v. United States, No. 1:97-cv-02199 (D.D.C. Mar. 30, 2006) ("Maydak II"), reprinted in App. to the Opening Br. of Appointed Amicus Curiae in Supp. of Appellants ("App.") 319-31; Maydak v. United States, No. 1:97-cv-02199, 2007 WL 1018469 (D.D.C. Mar.30, 2007) ("Maydak III"); Maydak v. United States, No. 1:97-cv-02199, 2007 WL 2381388 (D.D.C. Aug.20, 2007) ("Maydak IV"). The District Court concluded that BOP had satisfactorily reimbursed the Trust Fund for any misappropriations. The trial court also rejected appellants' request for nationwide discovery, holding that further discovery was unnecessary. Maydak III, 2007 WL 1018469 at * 1; Maydak IV, 2007 WL 2381388 at *1. In addressing the Privacy Act claims, the District Court held that prison officials' searches through boxes of unsorted photos in the hopes of recognizing an inmate did not constitute a "system of records" within the compass of the Act. Maydak II, slip op. at 4, App. 322. The District Court additionally held that, even if the disputed photo searches were covered by the Privacy Act, appellants' claims lacked merit because the appellants had proffered no evidence that would allow a reasonable juror to find that BOP acted willfully or intentionally to violate their rights under the Act. Id. at 6-8, App. 324-26. Appellants, with the able support of appointed amicus curiae, the Georgetown University Law Center Appellate Litigation Clinic, now seek reversal of the District Court's judgments.
We vacate the District Court's judgment on the Trust Fund claims. All three appellants have been released from incarceration, so their claims are now moot. And it is clear that appellants no longer have standing to challenge the management of the Trust.
We affirm the District Court's grant of summary judgment for the Government on the Privacy Act claims. Even assuming that BOP's review and retention of duplicate photos created a "system of records" triggering Privacy Act protections, civil remedies are only available if appellants can show "that the agency acted in a manner which was intentional or willful." 5 U.S.C. § 552a(g)(4). At summary judgment, the Government presented affidavits declaring that BOP officials did not intentionally or willfully commit Privacy Act violations and that the duplicate photos were used solely in furtherance of legitimate law enforcement interests. In response, appellants proffered no evidence and thus failed to establish a genuine issue for trial regarding the intent and willfulness of Government officials. In these circumstances, the District Court was obliged to grant summary judgment for the Government.
Each BOP correctional institution maintains a Commissary, which is charged with two purposes: (1) maintenance of inmates' monies through the Inmate Deposit Fund; and (2) provision of merchandise and services that are not generally supplied by the institution. BOP Program Statement
One of the services supported by the Trust Fund is the inmate photo program, pursuant to which inmates are allowed to have personal pictures taken, either alone or with visitors, at the cost of $1.00 per photo voucher. Id. ¶ 5.4. Trust Fund monies are used to cover all operational costs of the program, including camera equipment, photo processing, and photographer salaries. Id. Until recently, officials at many BOP correctional facilities accepted duplicate prints from the photo developers, sometimes in connection with a complimentary promotion and sometimes for an additional nominal fee. Maydak I, 363 F.3d at 522. The duplicate photo prints often were reviewed by BOP officials, variously, to uncover visual signs of gangrelated activity, obscenity, or potential threats to the institution's safety or security. Id. at 514. Photos marked as problematic were added to existing security files or scanned into electronic files. Unused photo duplicates were either given to the inmates, immediately destroyed, or retained for a short period of time and then discarded. Id.
On April 19, 2010, BOP updated its Trust Fund Manual to officially forbid individual institutions from accepting duplicate prints, even if provided for free. Compare BOP Program Statement No. 4500.07 ¶ 5.4 ("Institutions shall not accept double prints from the vendor.") with BOP Program Statement No. 4500.06 (Feb. 19, 2009) ¶ 5.4(b)(2) ("Duplicate prints may be offered if there is no increase in cost."), reprinted in Addendum to Br. for Appellees.
In 1997, appellant Paul Lee realized that several BOP institutions were ordering double prints but only releasing a single print to the inmate. See Maydak I, 363 F.3d at 514-15 (discussing much of the case's factual history). Lee, along with two of his fellow inmates — appellant Keith Maydak and Ambrose Mitchell, the latter of whom was eventually replaced in this litigation by appellant Gregory Smith — filed a complaint in the District Court. Am. Compl., reprinted in App. 32-71. The litigation has since focused on the photo retention and review practices at seven different federal correctional institutions ("FCI") in which the appellants were held — namely, McKean, Ray Brook, Beckley, Lewisburg, Oklahoma City, Cumberland, and Allenwood.
Appellants have alleged that BOP's undisclosed review and retention of the duplicate photos violated various provisions
The District Court initially dismissed the complaint in its entirety, finding the Trust Fund claims unfounded and the photograph files exempt from the Privacy Act's requirements because of the statute's exception for information that is compiled for law enforcement purposes. Maydak v. United States, No. 1:97-cv-02199, slip op. at 2 (D.D.C. Mar. 31, 1999) (citing 5 U.S.C. § 552a(j)(2)). On appeal, this court vacated the dismissal of the Privacy Act and Trust Fund claims. Maydak v. United States, No. 99-5187, 1999 WL 1006593, at * 1 (D.C.Cir. Oct.27, 1999). We held that the law enforcement exception did not apply unless BOP had previously promulgated a regulation invoking the exemption. We also held that, even if a law enforcement exemption was properly sought, public disclosure in the Federal Register would still be required. Accordingly, the case was remanded for the District Court to determine whether the retained photographs constituted a "system of records" as necessary to trigger the Privacy Act requirements and to inquire further into the Trust Fund claims. Id.
Following remand, the Government initiated summary judgment proceedings. BOP officials acknowledged that duplicate prints were retained and occasionally reviewed for signs of gang-related activities, offensive gestures or conduct, and investigative or informational purposes. Maydak v. United States, No. 1:97-cv-02199, slip op. at 7 (D.D.C. May 4, 2001), reprinted in App. 210. The Government maintained, however, and the District Court agreed, that these practices did not produce a "system of records" as defined by the Privacy Act, because the photos were never organized by any personal identifiers. Id. at 7-9, App. 210-12; Maydak v. United States, No. 1:97-cv-02199, slip op. at 1-2 (D.D.C. Mar. 22, 2002), reprinted in App. 218-19. The Government also argued, and the District Court again agreed, that 31 U.S.C. § 1321 violations only occurred where Trust Fund monies were used to pay for duplicates and that reimbursements were not necessary where the duplicate prints were provided by the vendor for free. In those institutions where BOP acknowledged misusing funds to cover the additional cost of duplicate prints, the District Court found reimbursements of those additional costs sufficient and concluded that further nationwide discovery of additional misappropriations was not warranted. Maydak v. United States, No. 1:97-cv-02199, slip op. at 2-4 (D.D.C. Mar. 22, 2002), App. 219-21. The District Court thus granted the Government's summary judgment motion on all counts.
The appellants appealed, and this court again vacated the judgment below. Maydak I, 363 F.3d at 512. In Maydak I, this court suggested strongly that the BOP photo review and retention practices might constitute a "system of records," although we ultimately remanded the issue for consideration by the District Court in the first instance. The relevant portion of Maydak I says:
Maydak I, 363 F.3d at 519-20 (ellipses and third, fourth, fifth, and eighth brackets in original).
As for the Trust Fund claims, we concluded in Maydak I that reimbursements should not be confined to those institutions where duplicate prints required an additional fee; we also rejected as speculative the District Court's unverified determination that other BOP institutions were not misappropriating Trust Fund monies. Id. at 521-22.
On remand, the District Court again found that BOP's retention of duplicate photos within boxes or computer files did not constitute a system of records. On this point, the District Court declared:
Maydak II, slip op. at 4 (last alteration in original) (citation omitted) (quoting Henke, 83 F.3d at 1461), App. 322. The District Court noted, however, that even if a system of records had been created, no damages would be due because "[n]o reasonable juror could find that BOP acted willfully or intentionally if it reasonably believed that it was not creating a system of records triggering Privacy Act's [sic] requirements." Id. at 7, App. 325. In other words, according to the District Court, BOP officials could not have intentionally violated the Privacy Act if they never believed that their actions rose to the level of Privacy Act violations. In two subsequent decisions, the District Court dismissed appellants' Trust Fund claims. In doing so, the trial court (1) rejected appellants' request for nationwide discovery of additional misappropriations as unnecessary due to "the independent nature of these programs, and the absence of class action certification"; and (2) upheld BOP's additional reimbursements of "50 percent of the total cost of the original photos" as sufficient to reimburse the Trust Fund and cure the prior misdeeds of Government officials in their handling of Trust Fund monies. Maydak III, 2007 WL 1018469, at *1; Maydak IV, 2007 WL 2381388, at *1.
Before this court, appellants seek reversal of the District Court's grants of summary judgment to the Government on their Trust Fund and Privacy Act claims, dismissal of their motion for additional discovery, denial of their motion to supplement the complaint, and denial of their
We review the grant of summary judgment de novo, applying the same standard of review as that of the District Court. Estate of Coll-Monge v. Inner Peace Movement, 524 F.3d 1341, 1346 (D.C.Cir.2008). Summary judgment is appropriate only where there is "no genuine issue as to any material fact" and, viewing the evidence in the light most favorable to the nonmoving party, "the moving party is entitled to a judgment as a matter of law." McCready v. Nicholson, 465 F.3d 1, 7 (D.C.Cir.2006) (quoting FED.R.CIV.P. 56(c) ).
When this lawsuit was filed, appellants were able to pursue their Trust Fund claims under 31 U.S.C. § 1321 because they were federal inmates and beneficiaries of the Trust Fund. At all times during the litigation before the District Court, at least one of the named appellants remained in BOP custody. However, all three appellants have since been released from incarceration. Appellant Keith Maydak was released from BOP custody in 2005; appellant Gregory Smith was released in November 2009; and appellant Paul Lee was released in April 2010. We must, therefore, first address whether this court still retains jurisdiction over the Trust Fund claims.
The problem here is that appellants' claims against the Trust Fund were rendered moot once they left prison. Under trust law, claims for redress of a prior breach of trust can only be pursued by beneficiaries of the trust. See, e.g., RESTATEMENT (SECOND) OF TRUSTS §§ 199-200 (1959). Since federal prison inmates are the sole beneficiaries of the Trust Fund, a claim for reimbursements to the Fund can only be pursued by a current federal inmate. All three appellants have been released from incarceration. As a result of their changed circumstances, their Trust Fund claims are now moot. See Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam) (parole applicant's challenge to parole board procedures moot once he gained complete release); DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (per curiam) (law student's challenge to school's affirmative action program moot due to his pending graduation); Flynt v. Weinberger, 762 F.2d 134 (D.C.Cir.1985) (per curiam) (publisher's suit challenging ban of press coverage of invasion of Grenada rendered moot when press ban was lifted two days after complaint was filed).
There is no exception to an application of the mootness doctrine in this case, for the matter is not "capable of repetition, yet evading review." The Court's decision in Bradford is instructive. In that case, Bradford sued members of the North Carolina Board of Parole, claiming that they were obligated to accord him certain procedural rights in considering his eligibility for parole. The district court refused to certify the case as a class action and dismissed the complaint. By the time the case reached the Supreme Court, Bradford's temporary parole had ripened into a complete release from supervision. The Court noted that, "[f]rom that date forward it [was] plain that [Bradford had] no interest whatever in the procedures followed
Id. at 149, 96 S.Ct. 347.
The same principles apply here with respect to appellants' Trust Fund claims. The live dispute between the appellants and the Government ended when appellants were no longer in the custody of BOP.
Appellants seek to avoid this result by suggesting that, notwithstanding their release from prison, they continue to have standing to pursue their Trust Fund claims. In advancing this position, appellants rely primarily on the Court's decision in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).
HARRY T. EDWARDS & LINDA A. ELLIOTT, FEDERAL STANDARDS OF REVIEW—REVIEW OF DISTRICT COURT DECISIONS AND AGENCY ACTIONS 115-16 (2007).
Friends of the Earth and Super Tire plainly are inapposite here. Even though the plaintiffs' claims for declaratory relief in Friends of the Earth and injunctive relief in Super Tire were rendered moot during the course of litigation, the plaintiffs in those cases continued to have sufficient interests and the necessary standing going forward to pursue their claims for civil penalties and declaratory relief, respectively. The appellants in this case have no such continuing interests or standing.
Two decisions issued by the Supreme Court are illustrative in highlighting the problem that appellants face in this case. The first is the Court's recent decision in Summers v. Earth Island Institute, ___ U.S. ___, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). In that case, the plaintiffs were several environmental protection organizations. When the lawsuit was filed in 2003, the plaintiffs challenged the United States Forest Service's failure to apply its usual notice-and-comment procedures to the approval of the so-called "Burnt Ridge Project." The plaintiffs also challenged the underlying federal Forest Service regulation exempting certain federal land sales from the notice-and-comment requirement generally applied to significant land management decisions. After the District Court issued a preliminary injunction, the parties settled their dispute over the Burnt Ridge Project. The plaintiffs then sought to continue pursuit of their challenge to the agency's regulation. The Court held that the plaintiffs had no standing to pursue this claim, because a party who sues to challenge a certain action but then settles the claim does not "retain[] standing to challenge the basis for that action (here, the regulation in the abstract), apart from any concrete application that threatens imminent harm to his interests." Id. at 1150.
The second case worth noting is the Court's decision in DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (per curiam). In that case, a prospective law student brought suit against the University of Washington Law School, seeking an injunction granting him admission and challenging the school's affirmative action policy that allegedly prevented his admission. The district court granted the preliminary injunction and DeFunis enrolled in law school. By the time the case reached the Supreme Court, however, DeFunis had already entered his last year of law school and was about to graduate. Id. at 315, 94 S.Ct. 1704. The Supreme Court found that his claim for injunctive relief had been mooted by his impending graduation, and that, as a result, he no longer had a personal interest sufficient to support standing to challenge the underlying admissions policy. Id. at 319-20, 94 S.Ct. 1704.
When the complaint in the instant case was filed, the appellants were federal prison inmates and, as such, had a clear and concrete personal interest in the management of the Trust Fund. Appellants' claims alleged an actual injury — namely, decreased inmate benefits due to the diminished resources of the Trust Fund — that was caused by BOP's improper use of Trust Fund monies and that could be redressed by BOP's reimbursement of the
During oral argument before this court, Amici maintained that appellants retained standing based on some individual de minimis claims for photo voucher reimbursements and overpayments caused by BOP's misuse of the Trust Fund monies. These claims come too late and are thus forfeited. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1043 (D.C.Cir.2003) ("The general presumption against deciding claims not raised below is particularly strong where, as here, the claim turns upon factual questions not yet passed upon by the district court."). Neither the appellants' amended complaint nor their motion to further amend their complaint raise these de minimis claims, a fact Amici effectively conceded in its reply brief to this court. See Reply Br. of Appointed Amicus Curiae in Supp. of Appellants at 20 (urging remand "so that plaintiffs can file an amended complaint seeking individual reimbursement"). In fact, appellants only mentioned these de minimis claims in the District Court in connection with "out-of-pocket expenses" for Privacy Act damages relief, not as grounds for individual standing on Trust Fund claims. See Pls.' Memo. in Opp. to the Defs.' Mot. for Summ. J. 9, 15-16, reprinted in App. 286, 292-93.
Since appellants no longer have standing to pursue their Trust Fund claims, we need not address the questions of whether the District Court abused its discretion in denying appellants' request for nationwide discovery; motion for leave to file supplemental pleadings identifying additional instances of Fund misuse; and motion to join the Trust Fund as a plaintiff, appoint a receiver for the Trust Fund, and appoint counsel for the Trust Fund.
Where, as here, a claim cannot be reviewed on appeal due to mootness or a lack of standing, we typically vacate the District Court's judgment on the merits and remand with instructions to dismiss. See, e.g., Taylor v. FDIC, 132 F.3d 753, 767 (D.C.Cir.1997) (vacating summary judgment where appellant failed to show causation necessary for Article III standing); Humane Soc'y of U.S. v. Babbitt, 46 F.3d 93, 95 (D.C.Cir.1995) (vacating and remanding with instructions to dismiss the case for want of jurisdiction upon finding that appellants lacked constitutional standing); Flynt, 762 F.2d at 135-36 (vacating judgment of trial court after case became moot). This "clears the path for future relitigation of the issues ... and eliminates a judgment, review of which was prevented through happenstance." Ramallo v. Reno, 114 F.3d 1210, 1214 (D.C.Cir.1997) (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 40, 71 S.Ct. 104, 95 L.Ed. 36 (1950) (vacating case that has become moot)).
Under the Privacy Act, the Government may be liable for civil damages if a federal
As noted above, the extensive statutory requirements of section 552a(e) of the Act come into play only with respect to information that is maintained in a "system of records." 5 U.S.C. § 552a(e) ("Each agency that maintains a system of records shall. ..."). A main point of dispute in this litigation has been whether BOP's photo review and retention practices constituted a "system of records" such that the protections of section 552a(e) applied. As defined by the statute, a system of records is "a group of any records under the control of any agency from which 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). A system of records exists only if the information contained within the body of material is both "retrievable by personal identifier" and "actually retrieved by personal identifier." Maydak I, 363 F.3d at 520 (emphasis in original); see also Henke, 83 F.3d at 1460 ("[R]etrieval capability is not sufficient to create a system of records.").
There is clear tension between this court's decision in Maydak I, see 363 F.3d at 519-20, and the District Court's decision in Maydak II, see slip op. at 4, App. 320-22, regarding whether the BOP photo review and retention practices constituted a "system of records." Although we did not definitively resolve the matter, this court was of the view that "a `system of records' may be a group of any records retrieved by an identifying particular such as a photograph. In other words, the personal identifier may be the photograph itself." Maydak I, 363 F.3d at 519. The District Court had a different view, concluding that "[s]earching through a box or collection of unidentified photos with the hope of recognizing an inmate does not fit the definition [of a system of records] because the photos are not `retrieved' by any `assigned' personal identifier." Maydak II, see slip op. at 4, App. 322.
The Government apparently has changed its policies regarding the review and retention of duplicate photos. See BOP Program Statement No. 4500.07 ¶ 5.4 ("Institutions shall not accept double prints from the vendor."). And in this appeal, the Government does not attempt to defend the District Court's judgment regarding the "system of records" issue. Rather, the Government's principal argument before this court is that
Br. for Appellees at 4, 17.
Given the present posture of the case, we will simply assume, without deciding, that BOP's review and retention of the duplicate photos constituted a "system of records" under the Privacy Act. Our analysis will focus on whether Government officials acted intentionally or willfully to violate appellants' rights under the Act. For the reasons indicated below, we agree with the Government that appellants failed to proffer evidence sufficient to create a triable issue of fact regarding intent or willfulness. Therefore, it is unnecessary for us to determine whether the alleged statutory violations had an adverse effect on appellants. It is also unnecessary for us to address the Government's argument that "[a]ppellants' Privacy Act claims fail for the independent reason that they made no showing of ... `actual damages,' as required by the Privacy Act, 5 U.S.C. § 552a(g)(4)(A) ... and the Supreme Court's decision in Doe v. Chao, 540 U.S. 614, 124 S.Ct. 1204, 157 L.Ed.2d 1122 (2004)." Appellee's Br. at 22.
Section 552a(g)(4) of the Privacy Act provides:
Pursuant to this provision, it is clear that "[t]he [Privacy] Act does not make the Government strictly liable for every affirmative or negligent action that might be said technically to violate the Privacy Act's provisions." Albright v. United States, 732 F.2d 181, 189 (D.C.Cir.1984). Rather, under the case law construing and applying section 552a(g)(4), we have held that a violation of the statute "must be so patently egregious and unlawful that anyone undertaking the conduct should have known it unlawful." Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1122 (D.C.Cir.2007) quoting Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C.Cir.1987) (per curiam) (internal quotation marks omitted). "Intentional or willful" means: "somewhat greater than gross negligence, or, an act committed without grounds for believing it to be lawful, or by flagrantly disregarding others' rights under the Act." Waters v. Thornburgh, 888 F.2d 870, 875 (D.C.Cir. 1989) (emphasis added) (internal quotation marks and citations omitted), abrogated on other grounds by Doe v. Chao, 540 U.S. 614, 124 S.Ct. 1204, 157 L.Ed.2d 1122 (2004).
The decision in Albright is illustrative of the burden of proof that claimants must meet in order to satisfy the "intentional or willful" element of the Privacy Act. Albright
In construing § 552a(g)(4), Albright held that:
Id. at 189 (footnotes omitted). During proceedings before the District Court in Albright, the agency presented unrefuted evidence establishing that the idea of a videotape originated from an employee who had to miss the meeting, that the principal purpose of the tape was to enable the agency to provide a "full record of the events of the meeting" to absent employees, and that the agency had offered to destroy the videotape. Id. at 189-90. The court found that, under the applicable legal standard, this evidence demonstrated that the agency acted with a legitimate and lawful purpose and not pursuant to a proscribed intention of infringing upon the employees' Privacy Act rights. Id. at 185. The appellants in Albright offered no affirmative evidence of their own, but merely "claim[ed] that [trial witness] testimony could have established other motives for the videotaping." Id. at 190 (emphasis added). We concluded that "speculation on appeal about the possible content of ... testimony cannot rectify the plaintiffs' failure to meet their burden of proof on this critical element of the case" and found dismissal of the Privacy Act claims justified. Id.
Unlike Albright, the proceedings before the District Court in this case involved a summary judgment, not a trial. Nonetheless, the controlling legal standards are the same. In order to survive the Government's motion for summary judgment on the "intentional or willful" issue, the appellants were required to proffer evidence that the Government's actions were:
Plaintiffs who oppose summary judgment on the intent issue cannot prevail by merely presenting evidence that "the government acted negligently, or that the government handled a matter in a disjointed, or confused manner, or that the government acted inadvertently to contravene the Act." Waters, 888 F.2d at 875-76 (citations, quotation marks, and brackets omitted). Appellants in this case did not come close to
Under Rule 56(c) of the Federal Rules of Civil Procedure,
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In this case, the Government supported its motion for summary judgment with affidavits explaining the motives and purposes of the BOP officials who engaged in the disputed photo review and retention practices. See, e.g., Williams Decl. ¶ 6, reprinted in App. 360-61. We agree with the Government that the evidence proffered on behalf of BOP demonstrated that the agency "had both a legitimate purpose in retaining the photos and their practice of retention was perfectly consistent with its stated purpose." Br. for Appellees at 12. We do not mean to say that the photo review and retention practices were consistent with the requirements of the Privacy Act, but we do find that the Government's evidence clearly supports its claim that the practices were not impermissibly "intentional or willful."
In response to the Government's motion for summary judgment, the appellants offered nothing of substance to counter the Government's evidence. Rather, appellants merely argued that BOP officials must have known that they were violating the Privacy Act because the controversial and long-running litigation put them on clear notice of this issue, and wrongful intent could be inferred from the agency's continued retention of duplicate photos. See Pls.' Memo. in Opp. to the Defs.' Mot. for Summ. J. 11-15, reprinted in App. 288-92. This was far short of what is required by Rule 56 to defeat a motion for summary judgment.
It is true that "summary judgment will not lie . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252, 106 S.Ct. 2505. In this case, appellants simply did not produce what Rule 56 requires.
In summary judgment proceedings, "[i]f the burden of persuasion at trial would be on the non-moving party [here, the appellants], the party moving for summary judgment may satisfy Rule 56's burden of production [by (1) submitting] affirmative evidence that negates an essential element of the nonmoving party's claim [or (2)] demonstrat[ing] to the court that the nonmoving party's evidence is insufficient to
Id. at 332-33 n. 3, 106 S.Ct. 2548 (Brennan, J., dissenting). Appellants satisfied none of these requirements.
Appellants' arguments that BOP officials must have known that they were violating the Privacy Act, offered to suggest a triable issue of fact on the intent issue, simply cannot carry the day. First, it is uncontested that the photographs that were reviewed and retained by BOP officials were used only for legitimate law enforcement purposes, such as review for signs of gang-related activity. Second, given the complex statutory definition of a "system of records" and its focus on retrieval by an individual's name or "identifying number, symbol, or other identifying particular," 5 U.S.C. § 552a(a)(5), the retention of unsorted duplicates in a box for a period of months for legitimate law enforcement purposes is not "so patently egregious and unlawful that anyone undertaking the conduct should have known it unlawful." Sussman, 494 F.3d at 1122 (quoting Laningham, 813 F.2d at 1242). Third, the Supreme Court has recognized that, although prisoners are not without constitutional rights, prison officials must have the ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration. See Jones v. N.C. Prisoners' Labor Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977); see also Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989) (regulations authorizing prison officials to screen and reject objectionable publications addressed to prisoners held to be facially valid); Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (regulation of inmate-to-inmate correspondence held to be reasonably related to legitimate security concerns of prison officials). Because the "solutions to problems arising within correctional institutions [are] never [] simple or easy," N.C. Prisoners' Union, 433 U.S. at 137, 97 S.Ct. 2532 (Burger, C.J., concurring), it is not surprising that BOP officials assumed that reviewing and retaining photographs served the interests of good prison administration. In this light, the disputed practice does not reveal an agency action committed "without grounds for believing it to be lawful." Albright, 732 F.2d at 189. Fourth, there is no evidence that BOP used the duplicate photos outside the prison setting, see Tijerina v. Walters, 821 F.2d 789 (D.C.Cir. 1987), or "flagrantly disregard[ed]" defendants' rights in any other way. Albright, 732 F.2d at 189. Finally, even after our remand of the case in Maydak I, BOP officials were still never placed on clear notice that their practices violated the Act. Notwithstanding this court's critical discussion of the review and retention policies at FCI Ray Brook, we did not resolve this issue; rather, we remanded the matter to the District Court "to determine whether the prisons' compilation of photos constitutes a system of records." Maydak I, 363 F.3d at 520. It is thus unsurprising that certain BOP facilities continued following established practices until the issue
As our case law makes clear, the Privacy Act's "intentional or willful" element cannot be satisfied with mere speculation, Albright, 732 F.2d at 190, which is all that appellants have offered in this case. The record in this case is plainly distinguishable from a case like Waters in which the court reversed the District Court's grant of summary judgment for the Government. In Waters, the plaintiff sued his employer, the Department of Justice ("DOJ"), to complain about a letter sent by DOJ to the Pennsylvania Board of Bar Examiners seeking confirmation that Waters had indeed sat for the bar exam. The plaintiff argued that DOJ violated the Privacy Act by failing to collect information "to the greatest extent practicable directly from the subject individual." 888 F.2d at 872 (quoting 5 U.S.C. § 552a(e)(2)). The District Court granted summary judgment to DOJ, persuaded by the agency's proffered evidence that its decision to contact the Pennsylvania Board was based on reasonable doubts as to Waters' veracity. Id. We reversed and remanded, finding that the derogatory tone and content of DOJ's letter and the Pennsylvania Board's refusal to respond without a written "demonstration of need for the information" raised a genuine issue of material fact regarding the agency's intent to act in violation of the Act. Id. at 875-77. Unlike the plaintiff in Waters, the appellants here failed to raise any triable issue of fact on intent.
At oral argument, Amici argued that even if appellants failed to proffer evidence in support of their claims that BOP officials acted "intentionally or willfully," the case should be remanded because the District Court wrongly stayed discovery and thus prevented appellants from having an opportunity to gather the necessary evidence. This argument fails, for there is nothing in the record—and appellants point us to nothing—to indicate that appellants ever sought discovery on the question of whether BOP officials acted "intentionally or willfully." Even after the remand in Maydak I, which placed appellants on direct notice that intent would be a necessary element of their Privacy Act claims and that summary judgment would be appropriate if the Government were able to show that BOP did not act intentionally or willfully in violation of the Act, no discovery requests were directed at this question. See Maydak I, 363 F.3d at 521 ("[T]his issue [of BOP's intent] is a question of fact entirely undeveloped in the record . . . [and] it provides no basis for summary judgment at this time." (emphasis added)). Instead, appellants' post-Maydak I discovery requests focused solely on their Trust Fund claims. See Pls.' Mot. to Compel (Aug. 10, 2004) (appending discovery requests); Pls.' Opp. to Defs.' Protective Mot. for Enlargement of Time at 1 (Aug. 10, 2004) ("The Court of Appeals specifically remanded the trust fund claims with instructions to allow the plaintiffs discovery."). The District Court's refusal to allow further discovery on the Trust Fund issues cannot excuse appellants' failure to propound any discovery requests related to the Privacy Act's intent question. Therefore, appellants cannot now cite the lack of discovery as a ground to set aside the summary judgement issued in favor of the Government. We therefore affirm the District Court's
For the foregoing reasons, we affirm the District Court's judgment except where we vacate and remand with instructions to dismiss due to a lack of jurisdiction.
