Keith Maydak , Et Al . v. United States of America , Et Al .

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 13, 2010 Decided December 28, 2010
No. 07-5352
KEITH M AYDAK , ET AL .,
APPELLANTS
v.
UNITED STATES OF AMERICA , ET AL .,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:97-cv-02199)
Jaclyn L. DiLauro, Student Counsel, argued the cause as
appointed amicus curiae in support of appellants. On the briefs
were Steven H. Goldblatt, appointed by the court, Charlotte
Garden and Kate Bushman, Supervising Attorneys, and Ekanem
O. Akpakip, Jimmy T. Dean, and William J. Durken, Student
Counsel.
Paul Lee, Keith Maydak, and Gregory A. Smith, pro se,
were on the briefs for appellants.
Alan Burch, Assistant U.S. Attorney, argued the cause for
appellees. With him on the brief were Ronald C. Machen Jr.,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

-- 1 of 30 --

2
Before: BROWN , Circuit Judge, and EDWARDS and
WILLIAMS , Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS .
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

-- 2 of 30 --

3
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 BOP’s retention of unsorted
duplicate photos did not create a “system of records” containing
information about the inmates that was then retrieved by
personal identifiers giving rise to Privacy Act protections.
5 U.S.C. §§ 552a(a)(5), 552a(e). The “system of records” issue
was remanded by this court for further consideration by the
District Court following appellants’ last appeal. Maydak v.
United States (“Maydak I”), 363 F.3d 512 (D.C. Cir. 2004).
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

-- 3 of 30 --

4
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.
I. BACKGROUND
A. The Inmate Trust Fund and the Inmate Photography
Program
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

-- 4 of 30 --

5
supplied by the institution. BOP Program Statement No.
4500.07 (Apr. 19, 2010) (“Program Statement 4500.07”)
¶ 2.1(a). Each Commissary maintains a store where inmates are
able to purchase items such as snack foods, personal hygiene
products, and postage stamps, with all sales proceeds being
deposited into the Inmate Trust Fund. The United States
Government serves as the trustee for the Trust Fund and,
pursuant to 31 U.S.C. § 1321(b)(1), is obliged to ensure that
“disburse[ments are made] in compliance with the terms of the
trust.” It is undisputed that “trust funds may [only] be used for
any purpose accruing to the benefit of the inmate body, as a
whole, such as amusements, education, library, or general
welfare work.” Maydak I, 363 F.3d at 521 (quoting Washington
v. Reno, 35 F.3d 1093, 1096 (6th Cir. 1994)) (internal quotation
marks omitted); see also Program Statement 4500.07 ¶ 2.3(d).
“The inmates at federal correctional facilities throughout the
country are . . . the sole beneficiaries of the trust,” Washington,
35 F.3d at 1104, and as a result, “[s]ecurity-related items,” such
as radios, fences, or razor wire, are prohibited uses of Trust
Fund profits. Program Statement 4500.07 ¶ 2.3(d)(3).
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 gang-related 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

-- 5 of 30 --

6
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.
B. Litigation History
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 of
the Privacy Act – including, for example, the requirement that
information about a “system of records” must be disclosed to the
public through publication in the Federal Register, 5 U.S.C.
§ 552a(e)(4), and the requirement that agencies must “establish
rules of conduct for persons involved in the design,
development, operation, or maintenance of any system of

-- 6 of 30 --

7
records,” § 552a(e)(9). Appellants also alleged that BOP
improperly used duplicate photos for prison security purposes in
violation of the terms of the Trust Fund and sought
reimbursements to the Fund under 31 U.S.C. § 1321(b)(1) for
these improper uses.
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,

-- 7 of 30 --

8
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:
[W]e believe that a genuine issue of material fact remains
as to whether BOP’s photo file in fact constitutes a system
of records. Recall that a system of records is “a group of
any records . . . 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) (emphasis added). The
term “record” includes “any item . . . about an individual
. . . that contains his name, or the identifying number,
symbol, or other identifying particular assigned to the
individual, such as a finger or voice print or a photograph.”
Id. § 552a(a)(4) (emphasis added). Under the Act’s plain
language, then, a “system of records” may be a group of

-- 8 of 30 --

9
any records retrieved by an identifying particular such as a
photograph. In other words, the personal identifier may be
the photograph itself.
In asserting that the prisons at issue here maintained no
such system of records, BOP officials failed to appreciate
this point. They assumed that because the photographs
were organized neither by name nor individually assigned
number, they were not organized by personal identifier. For
instance, the McKean [Special Investigative Supervisor
(“SIS”)] declared that duplicate photos with “investigative
or informative value” were retained in investigation case
files and other duplicates were “stored in a box for
approximately six (6) months and then destroyed.” Roy
Decl. ¶ 9. Yet the SIS also claimed that “[n]one of the
photographs . . . reviewed by the SIS office . . . [were]
retrievable by an individual inmate as they [were] not filed
by any personal identifier.” Id. ¶ 10. As amicus quite
properly asks, “What purpose would it serve to keep
photographs that BOP investigators have purportedly
determined have some significant importance to the
security of the institution in a filing system from which they
could not be retrieved by individual?” Amicus Br. at 12
n.4. “Presumably,” amicus points out, “one of the primary
reasons for keeping such a system is to enable the SIS to
track and prevent unlawful activities by individuals whose
photographs provide valuable information to do that.” Id.
Nor is it clear from the record why McKean officials
retained for six months duplicate photographs having no
investigative value. Although practices vary by prison, the
Ray Brook declaration, which is very similar to the
McKean declaration, suggests one such purpose: “to
identify possible associates or accomplices of an inmate
suspected of, or charged with, committing prohibited acts
at FCI Ray Brook.” Cross Decl. ¶ 9. This indicates that the
duplicate photographs stored in a box were retrievable by

-- 9 of 30 --

10
personal identifier – the photograph itself – for how else
could SIS staff have identified a particular inmate’s
associates or accomplices if not by the photograph?
The government argues that even if the photographs
were retrievable by personal identifier, the photograph file
would not constitute a system of records if the photos were
not actually retrieved by personal identifier. The
government is correct. In Henke [v. United States
Department of Commerce, 83 F.3d 1453 (D.C. Cir. 1996)],
we held that “retrieval capability is not sufficient to create
a system of records”; the agency must in practice retrieve
information by personal identifier. [Id.] at 1460-61.
Although incidental or ad hoc retrieval by personal
identifier does not convert a group of records into a system
of records, where an agency compiles information about
individuals for investigatory purposes, “Privacy Act
concerns are at their zenith, and if there is evidence of even
a few retrievals of information keyed to [personal
identifiers], it may well be the case that the agency is
maintaining a system of records.” Id. at 1461.
On the record before us, it seems clear that at least one
institution, Ray Brook, retrieved photographs by personal
identifier. With respect to the other institutions, because
the declarations rested on a flawed understanding of
personal identifier, they cannot support the grant of
summary judgment. We will thus remand for the district
court to determine whether the prisons’ compilation of
photos constitutes a system of records. In considering this
issue, the district court should take into account “the
entirety of the situation, including the agency’s function,
the purpose for which the information was gathered, and the
agency’s actual retrieval practices and policies.” Id.
Maydak I, 363 F.3d at 519-20 (ellipses and third, fourth, fifth,
and eighth brackets in original).

-- 10 of 30 --

11
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:
Searching 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.
In the absence of “evidence of even a few retrievals of
information keyed to individuals” names [or some other
personal identifier], the Court finds no genuine issue of
material fact existing as to whether the duplicate photos
retrieved in the manner described above constitute a BOP
system of records.
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

-- 11 of 30 --

12
“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 motion to join the Trust Fund as
a party and to have a receiver and counsel appointed for the
Fund. Professor Steven H. Goldblatt and the Georgetown
University Law Center Appellate Litigation Clinic were
appointed by this court as amicus curiae to brief and argue the
case in support of appellants on appeal.
II. ANALYSIS
A. Standard of Review
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 F ED . R. CIV . P. 56©).
B. Trust Fund Claims
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

-- 12 of 30 --

13
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 (1975) (per curiam) (parole applicant’s challenge
to parole board procedures moot once he gained complete
release); DeFunis v. Odegaard, 416 U.S. 312 (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

-- 13 of 30 --

14
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 by [the Board of Parole] in granting parole.” 423 U.S.
at 148. Bradford argued that his case should not be dismissed as
moot, because it fit within the “capable of repetition, yet evading
review” exception to mootness. The Court rejected this
argument, saying:
[I]n the absence of a class action, the “capable of repetition,
yet evading review” doctrine [is] limited to the situation
where two elements combine[]: (1) the challenged action
[is] in its duration too short to be fully litigated prior to its
cessation or expiration, and (2) there [is] a reasonable
expectation that the same complaining party [will] be
subjected to the same action again. The instant case, not a
class action, clearly does not satisfy the latter element.
While [the members of the Board of Parole] will continue
to administer the North Carolina parole system with respect
to those who at any given moment are subject to their
jurisdiction, there is no demonstrated probability that
[Bradford] will again be among that number.
Id. at 149.
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

-- 14 of 30 --

15
Friends of the Earth, Inc. v. Laidlaw Environmental Services
(TOC), Inc., 528 U.S. 167 (2000).
In Friends of the Earth, the plaintiffs sued under the citizen
suit provisions of the Clean Water Act to enjoin the
defendant’s violation of the statute and to require the
defendant to pay a civil penalty to the government. The
district court determined that injunctive relief was
inappropriate, because the defendant’s violations of the
statute had ceased after litigation commenced. However,
the court assessed a civil penalty against the defendant to
forestall future violations. The court of appeals reversed
the imposition of the fine, holding that the case was moot
once the defendant fully complied with the terms of the
statute. It reasoned that all elements of Article III standing
must exist throughout litigation and that the only remedy
available after the defendant’s violations had ceased – civil
penalties payable to the government – did not redress any
injury to the plaintiff. The Supreme Court reversed,
holding that “the Court of Appeals confused mootness with
standing.” Id. at 189.
. . . .
The Friends of the Earth opinion follows easily from
earlier decisions holding that if a plaintiff challenges both
a specific action and the policy that underlies that action,
the challenge to the policy is not necessarily mooted merely
because the challenge to the particular action is moot. For
example, in Super Tire Engineering Co. v. McCorkle, 416
U.S. 115 (1974), employers sought declaratory and
injunctive relief to prevent New Jersey from granting state
welfare benefits to striking workers on the ground that the
state’s actions violated federal labor law. The Court held
that because the strike that prompted the suit ended before
the case was resolved, the employer’s request for an
injunction preventing payment of welfare benefits during

-- 15 of 30 --

16
the strike was moot. However, the Court also held that the
employer’s request for declaratory relief was not moot,
because the challenged governmental action had not ceased
and the employer’s relationship with the union would be
continually affected by the “fixed and definite” state policy
of giving welfare benefits to strikers. Id. at 122–24.
HARRY T. EDWARDS & LINDA A. ELLIOTT , FEDERAL
S TANDARDS OF R EVIEW –R EVIEW OF D ISTRICT C OURT
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, 129 S. Ct. 1142 (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

-- 16 of 30 --

17
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 (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. 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.
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 misappropriated funds. Standing was
clear. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992) (explaining the essential requirements of injury,
causation, and redressability necessary to support Article III
standing). Following appellants’ release from BOP custody,
however, they were no longer beneficiaries of the Trust Fund
and, therefore, held no continuing personal interest in future
disbursements from the Fund. Their Trust Fund claims are thus

-- 17 of 30 --

18
moot, and they have no standing to pursue the matter further.
Summers and DeFunis are controlling.
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.
* * * *

-- 18 of 30 --

19
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 (1950) (vacating case that has become moot)).
C. Privacy Act Claims
1. Introduction: The Conjunction Between the
Requirements of 5 U.S.C. § 552a(e) Relating to a
“System of Records” and the Statutory Elements of
“Intentional or Willful” and “Adverse Effects”
Under the Privacy Act, the Government may be liable for
civil damages if a federal agency “fails to comply with
any . . . provision of [the statute] . . . in such a way as to have an
adverse effect on an individual.” 5 U.S.C. § 552a(g)(1)(D).
Plaintiffs seeking relief must establish that (1) the agency
violated a provision of the Act, (2) the violation was “intentional
or willful,” 5 U.S.C. § 552a(g)(4), and (3) the violation had an
“adverse effect” on the plaintiff, 5 U.S.C. § 552a(g)(1)(D). On
the record before us, the second statutory element – relating to
intent and willfulness – is dispositive of the appellants’ Privacy
Act claims.

-- 19 of 30 --

20
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.

-- 20 of 30 --

21
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
the District Court correctly held that Appellants failed to
present evidence that BOP acted “intentionally and
willfully” as required by the Privacy Act to sustain a claim
for damages, which is the only Privacy Act claim advanced
by Appellants. There is no evidence that “anyone” in the
shoes of the BOP officials would have found retention of
duplicate photos an “egregious” violation of the Privacy
Act, and BOP’s evidence falls squarely within this Court’s
consistent Privacy Act precedents finding insufficient
evidence of intent.
. . . .
If the agency was ultimately incorrect in its assessment that
its retention of the photos constituted a system of records,
that adds nothing to the intent analysis in this case because
the question has remained open through several rounds of
litigation, including a favorable decision by the District
Court. And it should go without serious dispute that the
final outcome of this issue should not control the intent
analysis.
If the Court agrees that Appellants failed to demonstrate a
triable issue of fact regarding intent, all of their Privacy Act
claims fail and it is unnecessary to address other issues
regarding the Privacy Act.
Br. for Appellees at 4, 17.

-- 21 of 30 --

22
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 (2004).” Appellee’s Br. at 22.
2. The “Intentional or Willful” Issue
Section 552a(g)(4) of the Privacy Act provides:
(4) In any suit brought under the provisions of subsection
(g)(1)(C) or (D) of this section in which the court
determines that the agency acted in a manner which was
intentional or willful, the United States shall be liable to the
individual in an amount equal to the sum of –
(A) actual damages sustained by the individual as a
result of the refusal or failure, but in no case shall a
person entitled to recovery receive less than the sum of
$1,000; and
(B) the costs of the action together with reasonable
attorney fees as determined by the court.
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

-- 22 of 30 --

23
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
(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 involved a case in
which analysts at the Social Security Administration sought
redress under the Privacy Act on the grounds that agency
officials impermissibly videotaped an informational meeting
attended by analysts to discuss a management decision to
downgrade their civil service classification. The District Court
concluded that the agency’s action did not give rise to damages
under the Privacy Act because there was no evidence that agency
officials acted intentionally or willfully to violate appellants’
rights. Albright, 732 F.2d at 183. We affirmed.
In construing § 552a(g)(4), Albright held that:
The terms “intentional” and “willful” must be interpreted in
their context to determine their meaning. Under Section
552a(g)(1)(D) liability is predicated on an agency’s “failure
to comply” with the Privacy Act. Thus, the “intentional or
willful” action requirement of Section 552a(g)(4) refers only

-- 23 of 30 --

24
to the intentional or willful failure of the agency to abide by
the Act, and not to all voluntary actions which might
otherwise inadvertently contravene one of the Act’s
strictures. Section 552a(g)(4) imposes liability only when
the agency acts in violation of the Act in a willful or
intentional manner, either by committing the act without
grounds for believing it to be lawful, or by flagrantly
disregarding others’ rights under the Act.
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:

-- 24 of 30 --

25
• so patently egregious and unlawful that anyone
undertaking the conduct should have known it
unlawful, or
• somewhat greater than gross negligence, or
• committed without grounds for believing them to be
lawful, or
• in flagrant disregard of others’ rights under the Act.
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 satisfying
these standards in their submissions to the District Court.
Under Rule 56(c) of the Federal Rules of Civil Procedure,
summary judgment is proper “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the 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.” In our view, the
plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the
burden of proof at trial. In such a situation, there can be “no
genuine issue as to any material fact,” since a complete
failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts
immaterial. The moving party is “entitled to a judgment as
a matter of law” because the nonmoving party has failed to

-- 25 of 30 --

26
make a sufficient showing on an essential element of her
case with respect to which she has the burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (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 (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. In this case,
appellants simply did not produce what Rule 56 requires.

-- 26 of 30 --

27
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 establish an
essential element of the nonmoving party’s claim.” Celotex
Corp., 477 U.S. at 331 (Brennan, J., dissenting). The
Government satisfied both of these requirements. Rule 56
further requires that:
Once the moving party has attacked whatever record
evidence – if any – the nonmoving party purports to rely
upon, the burden of production shifts to the nonmoving
party, who must either (1) rehabilitate the evidence attacked
in the moving party’s papers, (2) produce additional
evidence showing the existence of a genuine issue for trial
as provided in Rule 56(e), or (3) submit an affidavit
explaining why further discovery is necessary as provided
in Rule 56(f).
Id. at 332-33 n.3 (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

-- 27 of 30 --

28
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’
Union, 433 U.S. 119 (1977); see also Thornburgh v. Abbott, 490
U.S. 401 (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
(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 (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 was definitively resolved. In
fact, after the remand in Maydak I, the District Court agreed with

-- 28 of 30 --

29
the Government’s position and held 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, slip op. at 4, App. 322. This
gave further support to the Government that its practices were
not unlawful.
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

-- 29 of 30 --

30
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 grant of
summary judgment to the Government on the “intentional or
willful” issue.
III. CONCLUSION
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.

-- 30 of 30 --