# Petition for Writ of Certiorari — Bettersworth v. Federal Deposit Insurance > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2460%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2001 - **Citation:** 534 U.S. 1021 ## Text U.S. Sephember 10, Goo/ Frees 01 444 SEP 1 0200) No. OFFICE OF THE CLERK IN THE Supreme Court of the Anited States wae JAMES A. BETTERSWORTH, Petitioner, V. FEDERAL DEPOSIT INSURANCE CORPORATION; OFFICE OF THE COMPTROLLER OF THE CURRENCY; BOARD OF THE FEDERAL RESERVE; FEDERAL RESERVE BANK OF KANSAS CITY, Respondents. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI MICHAEL WALSH, ESQ. Of Counsel 621 Colfax Avenue Scranton, Pennsylvania 18510 (570) 969-1969 JAMES S. BETTERSWORTH, ESQ. Attorney of Record RUTHERFORD @ RUTHERFORD & BETTERSWORTH 825 S. St. Mary’s Street San Antonio, TX 78205-3408 (210) 225-4200 Attorneys for Petitioner Wright Appellate Services (215) 733-9870 @ (800) 507-9020 @ Fax (215) 733-9872 QUESTION PRESENTED FOR REVIEW I. Does the Privacy Act of 1974 permit a citizen to have access to records kept by a federal agency that contain any reference to the citizen that can be retrieved by the agency, or does it permit access only to records that relate directly to him and are filed under his name or other identifier? Il. Does the Privacy Act of 1974 require that an “adverse determination” that prejudices the plaintiff be the result of a formal action by the defendant administrative agency? LIST OF PARTIES TO THE PROCEEDING The Petitioner, who was the Plaintiff below, is James A. Bettersworth. The Respondents, who were the Defendants in the District Court action, are the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency, the Board of the Federal Reserve, and Federal Reserve Bank of Kansas City. il TABLE OF CONTENTS Page CRON PORIIIIIE acti ccrie\ccicintncinnnipeeniacngiehidananiminaie i List of Partios to the Proceeding, ..0.. Bettersworth also alleged that the agencies violated subsection 552a(e)(S) which requires agencies to “maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and com- pleteness as is reasonably necessary to assure fairness to the indi- vidual in the determination.” This statutory obligation is made enforceable by substantively identical language in subsection 552a(g)(1)(C). Bettersworth’s allegation under subsection 552a(e)(5) is therefore subsumed by his allegation under subsec- tion 552a(g)(1)(C). 12a dismissed all of Bettersworth’s claims with prejudice. Bet- tersworth filed a timely notice of appeal. Summary judgment is appropriate when there are no " genuine issues of material fact, and the moving party is enti- tled to judgment as a matter of law. Fed. R. Civ. P. 56. A moving party may rely upon the absence of evidence to sup- port an essential element of the non-movant’s case. See Duffy v. Leading Edge Prods., 44 F.3d 308, 310 (Sth Cir. 1995). Once that showing is made, the non-moving party is required to come forward with specific and credible facts that would support a reasonable inference of liability with respect to the essential elements of the non-moving party’s claims. /d. Thus, the district court was charged with exam- ining the summary judgment evidence to determine whether there was evidence supporting each of the essential elements of Bettersworth’s access, adverse determination, and adverse effect claims under the Privacy Act. We review the district court’s decision granting summary judgment de novo, ap- plying the same standards as did the district court. /d. at 312. Ill. BETTERSWORTH’S ACCESS CLAIM Subsection 552a(d)(1) of the Privacy Act provides that each agency that maintains a system of records shall: (1) upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him and upon his request, a person of his own choosing to accompany him, to review the record and have a copy made of all or any portion thereof in a form comprehensible to him, except that the agency may watt l3a require the individual to furnish a written statement authorizing discussion of that individual’s record in the accompanying person’s presence. 5S U.S.C. § 552a(d)(1). Subsection 552a(a)(5) defines “system of records” as follows: (5) the term “system of records” means a group of any records under the control of any agency from which the information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual. 5 U.S.C. § 552a(a)(5). Subsection 552a(g)(1) provides a civil remedy for violation of subsection 552a(d)(1). The threshold issue in any claim alleging denial of access under the Privacy Act is whether the records sought by the plaintiff are maintained in a “system of records” retrievable by an “identifying particular assigned to” the plaintiff. This qualifying language in the statute reflects a statutory com- promise between affording individuals access to those rec- ords relating directly to them and protecting federal agencies from the burdensome task of searching through agency rec- ords for mere mention of an individual’s name. Many of the published Privacy Act cases are aimed at giving meaning to this statutory requirement. See, e.g., Gowan v. United States Dep't of the Air Force, 148 F.3d 1182, 1191 (10th Cir. 1998) (file marked “ethics” was not a surrogate identifier for plain- tiff under ethics investigation and thus records were not ac- cessible under the Privacy Act, even though the file contained information about the plaintiff); Hudson v. Reno, 14a 130 F.3d 1193, 1206 (6th Cir. 1997) (records not accessible under the Privacy Act because not retrievable by the plain- tiff's name); Henke v. United States Dep 't of Commerce, 83 F.3d 1453 (D.C. Cir. 1996) (records not accessible under the Privacy Act, even though agency could search for the rec- ords by the plaintiff's name, because the agency as a practi- cal matter did not use the information that way); Cuccaro v. Secretary of Labor, 770 F.2d 355, 359-60 (3d Cir. 1985) (documents relating to agency’s investigation of accident involving plaintiff were not tied to plaintiff's name and thus not accessible under the Privacy Act); Wren v. Heckler, 744 F.2d 86, 90 (10th Cir. 1994) (records not accessible under the Privacy Act because not retrievable by the plaintiff's name, even though the information related to plaintiff). The district court held that the records Bettersworth wants, primarily information retrieved by Reserve Bank ex- aminer Johnson from various agencies and then included in Reserve Bank files concerning ComCorp’s application for BHC status, were not maintained in a system of records re- trievable by Bettersworth’s name, and were therefore not ac- cessible under § 552a(d)(1). There does not appear to be any dispute about the fact that the records were maintained in files referencing the banks with which Bettersworth was as- sociated, rather than Bettersworth personally. Further, there does not appear to be any dispute about the fact that the files were maintained for the purpose of discharging the responsi- bilities vested by federal law with the defendant agencies. Bettersworth urges the Court to interpret the statute broadly to require that he be given access to the agencies’ records in this case because the records pertained to him. 15a Alternatively, Bettersworth maintains that the agencies used the bank files as surrogate identifiers for records pertaining to him. We decline to interpret the statute in a manner that would deny meaning to the statutory language requiring that the records be retrievable “by some identifying number, symbol, or other identifying particular assigned to the indi- vidual.” 5 U.S.C. § 552a(a)(5); id. § 552a(d)(1). Moreover, Bettersworth’s assertion that the agencies used the bank files as a surrogate identifier for information relating to him finds no support in the record. For these reasons, we affirm the district court’s dismissal of Bettersworth’s claim that he was denied access to records subject to disclosure under the Pri- vacy Act. IV. BETTERSWORTH’S ADVERSE DETERMINATION CLAIM Subsection 552a(g)(1)(C) provides a civil remedy when- ever an agency: fails to maintain any record concerning any indi- vidual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual. 5 U.S.C. § 552a(g)(1)(C). Bettersworth’s adverse determina- tion claim is premised almost entirely upon the Reserve Bank’s handling of ComCorp’s BHCA application. Specifi- l6a cally, Bettersworth claims that the following items constitute adverse determinations against him within the meaning of § 552a(g)(1)(C): (1) Reserve Bank vice-president McBride’s November 5, 1993 letter informing ComCorp that the pros- pects for approval of its BHCA application were extremely dim, and that further applications would be reviewed directly by the Board; (2) oral statements made by McBride during a telephone conversation with Bettersworth’s lawyers about the viability of ComCorp’s BHCA application; (3) Reserve Bank examiner Johnson’s working papers and notes prepared in the course of her review of ComCorp’s BHCA applica- tion; and (4) the entry in the OCC’s SMS database flagging Bettersworth’s role in the financial decline of FCB. The dis- trict court held that Bettersworth’s adverse determination claim failed as a matter of law because none of the various statements and writings identified by Bettersworth consti- tuted an “adverse determination” within the meaning of the statute. The district court held that McBride’s November 5, 1993 letter was the only item relied upon by Bettersworth which even potentially constituted an adverse determination. The remaining items concern information allegedly relied upon to draft that jetter.* The district court held that McBride’s No- * On this point, we note that Bettersworth’s allegations do not di- rectly identify adverse determinations made by each and every defendant agency. To the contrary, Bettersworth premises his claim against the other defendants primarily upon the fact that the Reserve Bank accessed and relied upon records from the other agencies when making its determination. At least one court has recognized that such a connection may be sufficient to support 17a vember 5, 1993 letter did not constitute a determination be- cause the letter identified other reasons for the Reserve Bank’s disinclination to approve the application. The district court also suggested that ComCorp (or Bettersworth) decided not to pursue an application with the Board because there were no Satisfactory answers to the legitimate questions asked in McBride’s letter. The agencies argue that the November 5, 1993 letter can- not be considered an adverse determination because the Re- serve Bank had no authority to deny ComCorp’s application. The controlling regulations permit only two courses of ac- tion; the Reserve Bank can either approve an application for BHC status or refer it to the Board for further consideration. See 12 C.F.R. § 225.15. Thus, the agencies maintain that there could be no determination unless and until ComCorp forwarded an application to the Board and it was finally de- nied. See Deters v. United States Parole Comm'n, 85 F.3d 655 (D.C. 1996). Given that ComCorp abandoned that effort, the matter was terminated before an administrative determi- nation could be made. In this same vein, the defendant agen- cies maintain that, even if the November 5, 1993 letter constituted a determination of any sort, it would be a deter- mination against ComCorp, the company making the appli- cation, rather than against Bettersworth personally. Having reviewed the record, we are persuaded that the diverse liability. See Dickson, 828 F.2d at 36. Because we affirm the dis- trict court’s decision that the items identified by Bettersworth do not constitute an adverse determination under the statute in any event, we need not and do not decide whether such a showing is sufficient in this Circuit. 18a grounds relied upon in the Reserve Bank’s letter, coupled with the fact that ComCorp was the entity applying for BHCA status, provide adequate support for the district court’s conclusion that the November 5, 1993 letter did not constitute an adverse determination against Bettersworth within the meaning of § 552a(g)(1)(C). With regard to the remaining items identified by Better- sworth as adverse determinations, the agencies ask the Court to hold that the word “determination” as used in the statute must mean something akin tu a formal or final administrative decision. We need not go that far in order to say that no de- termination was made in this case. At the very least, informal oral or written statements made in the deliberative process about a particular administrative determination do not con- stitute the determination itself. We therefore affirm the dis- trict court’s conclusion that Bettersworth’s adverse determination claim fails because there was no evidence of an adverse administrative determination against him. See 5 U.S.C. § 552a(g)(1)(C) (providing that the determination must be adverse “to the individual”). V. BETTERSWORTH’S ADVERSE EFFECT CLAIM Subsection 552a(g)(1)(D) provides for a civil remedy whenever an agency “fails to comply with any other provi- sion of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual.” Bettersworth asserts that the defendant agencies kept infor- mation on him that was unnecessary to the agencies’ man- dated purpose, in violation of subsection 552a(e)(1), and that the agency maintained records describing Bettersworth’s ex- ercise of his First Amendment rights, in violation of subsec- - geese ane 19a tion 552a(e)(7). Beyond these general assertions, Better- sworth does not describe what portions of which records maintained by which agencies show such violations. Better- sworth simply states that the cause of action is supported by his affidavit. Bettersworth then relies upon the district court’s failure to address this claim in detail to excuse his own duty to brief it on appeal. Federal Rule of Appellate Procedure 28 requires that ap- pellate parties provide cogent argument, supported by cita- tion to relevant authorities, statutes, and the record, for all points raised on appeal. Without such argument, this Court is in no position to provide any meaningful review. In the ab- sence of such briefing, we decline to address Bettersworth’s claim that the district court erroneously dismissed his § 552a(g)(1)(D) claim. See, e.g., Matter of T-H New Orleans Ltd. Partnership, 116 F.3d 790, 796 (Sth Cir. 1997); Mead- owbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 532 (Sth Cir. 1996). CONCLUSION The district court’s order granting summary judgment in favor of the defendants (the Federal Deposit Insurance Cor- poration, the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, and the Federal Reserve Bank of Kansas City) and dismissing plain- tiff Bettersworth’s Privacy Act claims with prejudice is AF- FIRMED. 20a APPENDIX D- REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS, AUSTIN DIVISION, FILED FEBRUARY 1, 2000 A-97-CA-624 JN JAMES A. BETTERSWORTH Plaintiff, V. FDIC, OCC, BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM & FEDERAL RESERVE BANK Defendants. REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE TO: THEHONORABLE JAMES R. NOWLIN UNITED STATES DISTRICT JUDGE Before the Court is Plaintiff's Motion for Partial Summary Judgement (Doc. #55); Defendants’ Joint Opposition to Plaintiffs Motion for Partial Summary Judgment (Doc. #70); Plaintiff's Reply to Defendants’ Joint Opposition (Doc. #88); Exhibit A to Plaintiff's Motion for Leave to Supple- ment Summary Judgment Record (Doc. #110); Defendants’ Joint Motion to Dismiss or in the Alternative for Summary Judgment (Doc. #57); Defendants’ Proposed Findings of Uncontroverted Facts (Doc. #52); Plaintiffs Response to 2la Defendants’ Joint Motion to Dismiss or in the Alternative Summary Judgment (Doc. #72); and Defendants’ Joint Reply (Doc. #81). These dispositive motions were referred by United States Chief District Judge James R. Nowlin to the undersigned for a Report and Recommendation as to the merits of the motions pursuant to 28 U.S.C. § 636(b), Rule 72 of the Federal Rules of Civil Procedure, and Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas. After reviewing the parties’ pleadings, relevant case law, as well as the entire case file, the undersigned issues the following Report and Recommendation to the District Court. I. BACKGROUND Plaintiff, James Bettersworth, and Defendants, Federal De- posit Insurance Corporation (“FDIC”), the Office of the Controller of the Currency (“OCC”), the Board of Governors of the Federal Reserve System (“Board”), and the Federal Reserve Bank of Kansas City (“Reserve Bank”), have filed cross-motions for summary judgment. Bettersworth was the Chief Executive Officer (“CEQ”) and Chairman of the Board (“COB”) of Southwestern ComCorp., Inc. (“ComCorp”). Following a foreclosure on a debt, ComCorp acquired all voting shares of Republic Bank of Tecumeseh, Tecumeseh, Texas (“Republic”) in December 1988. ComCorp decided to retain its controlling shares of Republic. Pursuant to the Bank Holding Company Act’s requirement that the Board approve all such acquisitions, see 12 U.S.C. §§ 1842 (a)(1), 1841 (a)(1)-(2), ComCorp submitted a draft holding com- pany application to the Reserve Bank. The draft application revealed Bettersworth was the CEO and COB of Republic from August 1987 to May 1989, and that he had also been 22a CEO and COB of First Commercial Bank (“First Commer- cial”) in Seguin, Oklahoma from May 1983 to May 1990. On November 5, 1993, the Reserve Bank responded to Bettersworth’s draft application with comments outlining concerns with the application, including managerial and fi- nancial factors that must be considered under the Bank Holding Company Act. See 12 U.S.C. § 1842 (c)(2). The comments detailed concerns with the financial stability of both banks during the time periods Bettersworth served as their CEO and COB. Reserve Bank finally commented that these considerations were not consistent with Board approval largely because Republic had a unfavorable financial condi- tion and ComCorp’s debt servicing requirements wouid place too great a strain on the Bank. The Reserve Bank sug- gested that if ComCorp wanted to pursue the Application with the Board, it should include a list of additional informa- tion. ComCorp did not pursue the application with the Board, and instead sold Republic in March of 1994. In late 1995, Bettersworth submitted separate requests, pursuant to the Privacy Act, to all Defendants for the agen- cies’ files on “James Austin Bettersworth, James A. Better- sworth, or J. A. Bettersworth.” Each Defendant agency responded they did not have records maintained under any of those names and his request was therefore not subject to the Privacy Act or the Freedom of Information Act. On August 27, 1997, Bettersworth filed this cause of action alleging that Defendants maintained “secret records” con- cerning him that were contained in “confidential portions” of the OCC and the FDIC bank examination reports, and that the Reserve Bank used these secret records to comment on 23a the sufficiency of ComCorp’s 1993 draft application.’ Bet- tersworth’s Complaint contains three allegations of Privacy Act violations: (1) that Defendants failed to give him access to these secret records; (2) that Defendants kept inaccurate information resulting in an adverse determination against him; and (3) that Defendants failed to keep only those rec- ords that are relevant to fulfill an agency’s statutory purpose. Defendant’s previously filed a motion to dismiss present- ing largely the same arguments as their current motion for summary judgment. The District court denied the motion stating Bettersworth had sufficiently alleged violations of the Act, but inviting Defendants to present the arguments in a properly supported motion for summary judgment. (Doc. #25). Ii. ANALYSIS A. Standard of Review Summary judgment is appropriate under Rule 56(c) of the Federal Rules of Civil Procedure only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving ' Bettersworth’s amended complaint additionally alleges that De- fendant OCC maintained its secret records concerning him in its electronic and paper files for First Commerce. He further alleges that in a OCC Aug. 1991 Supervisory comment the OCC and an adverse regulatory determination under section 914 of the Finan- cial Institution Reform, Recovery, and Enforcement Act of 1989, 12 U.S.C. § 18311, 24a party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A dispute is genuine only if the evidence is such that a reasonable jury could return a verdict for the non- moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The party seeking summary judgment bears the burden of showing that there is an absence of evidence to support the non-movant’s case. See Celotex Corp. v. Catrett, 477 US. 317 (1986); Coleman v. Houston Independent School Dis- trict, 13 F.3d 528, 533 (5" Cir. 1997). After a proper motion for summary judgment is made, the non-movant must set forth specific facts showing that there is a genuine issue of material fact for trial. See Anderson, 477 U.S. at 248. The Court views facts in the light most favorable to the non-movant and draws all reasonable inferences in his favor. See Coleman, 113 F.3d at 533. Unsupported allegations or affidavit or deposition testimony setting forth ultimate or conclusory facts and conclusions of law are insufficient to defeat a proper motion for summary judgment. See Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5" Cir. 1995). Applying these standards, the undersigned turns to the merits of the motions for summary of judgment. B. Privacy Act The privacy act was enacted in 1974 in an effort to im- prove the quality of information concerning individuals maintained in agency filed. See Henke v. United States De- partment of Commerce, 83 F.3d 1453, 1456 (D.C. Cir. 1996). The Privacy Act provides, in pertinent part: et 25a each agency that maintains a system of records shall . . . upon request by an individual to gain ac- cess to his record or to any information pertaining to him which is contained in the system, permit him . . . to review the record and have a copy made... 5 U.S.C. § 552a (d)(1). The Act defines a “system of rec- ords” as: 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 as- signed to the individual. Id. § 552a (a) (b). The Act encourages government agencies to keep accurate records by requiring them to maintain all records which are used by the agency in making any deter- mination about any individual with accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness. See id §522a (e) (5). The Act further pro- hibits disclosure of any record contained in a system of rec- ords by any means of communication to any other person or any other agency unless the individual has given prior writ- ten consent, except if disclosure of the information would be required under the Freedom of Information Act.? See Id. 552a (b) (2). * The Freedom of Information Act reflects a general philosophy of full agency disclosure with certain delineated statutory exemp- 26a C. Bettersworth’s Claim for Access to Defendants’ Records Bettersworth’s first claim is that Defendants maintained secret records concerning him which are subject to the Pri- vacy Act. In order for the Privacy Act to apply, Bettersworth must establish that the agency maintains a system of records by which they can retrieve records by his name or a number or identifier assigned to him, and that Defendants withheld these records from him. See 5 U.S.C. § 552a (g) (1) (C). Bettersworth does not dispute that Defendants do not main- tain files under his name; however, he argues he is entitled to Defendants’ files which contain any references to him. Generally, Defendants are authorized to evaluate, and in fact are charged with the duty of evaluating, the performance of banking management which involves, inter alia, evaluat- ing individual bank officers through periodic bank examina- tions. See 12 U.S.C. §§ 325, 481, 1820 (b) and (d). Specifically, the Board is charged with the administration of the Bank Holding Company Act which prohibits a company from holding more that twenty-five (25%) of voting shares in a bank without Board approval. See 12 U.S.C. § 1841, ef. seq. To this end, the Board assesses the financial and mana- gerial resources of the applicant company and the bank. See id. § 1842 (c) (2). The Board delegates the authority to ac- cept and determine the informational completeness of appli- cations for approval to the Federal Reserve Banks. See 12 C.F.R. § 225.15. tions. See Dep't of Air Force v. Rose, 425 U.S. 352, 360-61 (1976). 27a In this case, Reserve Bank was required to evaluate the managerial competency of Bettersworth in connections with reviewing ComCorp’s draft application to acquire Republic. ComCorp’s draft applications revealed his previous supervi- sory positions with First Commercial and Republic Bank. Reserve Bank retrieved those institution’s examination files, which contained as part of their examination information on Bettersworth as a bank officer. Accordingly, documents referencing Bettersworth do ap- pear to exist. However, in responding to a request for infor- mation, Congress does not impress upon a federal agency an obligation to “comb its records for mention of a requestor’s name.” See Connolly v. Comptroller of the Currency, 673 F.Supp. 1419, 1424 (S.D. Texas 1987), rev'd on other grounds, 876 F.2d 1209 (5"™ Cir. 1989). An agency is required to maintain records that are rea- sonably relevant and necessary to accomplish a statutory mandated purpose. See 5 U.S.C. § 552a (e)(1). The Office of Management and Budget Guidelines provide cogent guid- ance in this area. Congress did not intend to require that an individ- ual be given access to information which the agency does not retrieve by reference to his or her name or some other identifying particular. It an individual is named in a record about someone else (or some other type of entity) and his agency only retrieves the portion pertaining to him by reference to the other person’s name (or some other organi- zation/subject identifier), the agency is not required to grant him access. Indeed, if this were not the 28a case, it would be necessary to establish elaborate cross-reference among records, thereby increasing the potential for privacy abuses. 40 Fed. Reg. 28, 957 (July 9, 1975). Bettersworth does not dispute that Defendant agencies do not index their records under an individual’s name. There is no evidence that this system of record-keeping is a covert attempt to conceal in- formation; but, instead, the summary judgment evidence es- tablished the system is the most efficient system of accomplishing each Defendant’s task of performing bank examinations. There is no evidence that Defendant agencies used financial institutions as a “surrogate identifier” for Bettersworth. Bettersworth does not dispute the names of the financial institutions for which he served as an officer came from information he himself provided to Defendants. An elaborate cross-referencing index would be unduly burdensome on Defendants and would not further any statu- torily mandated purposed. The summary judgment evidence established that records referencing Bettersworth were dis- covered in response to ComCorp’s draft applications by pulling the examination files for the banks for which he served as a financial officer. Because Bettersworth sought files on “Bettersworth” and Defendants’ files are maintained according to the name of the financial institution. there is no requirement that Defendants make them accessible to Better- sworth under Privacy Act. Therefore, the undersigned finds that the records Bettersworth seeks are not subject to the Act and he is not entitled to injunctive relief. 29a D. Defendants Did Not Make and Adverse Determination Bettersworth’s worth second claim is that Defendants failed to maintain accurate records resulting in an adverse determination against him and entitling him to damages un- der 5 U.S.C. § 552a (g) (1) (c). Although at least one court has held that the “system of records” requirement of 5 U.S.C. § 552a (d) (1) does not apply to 5 U.S.C. § 552a (g) (1) (c),? the undersigned notes both sgetions contain the “system of records” language and is unpersuaded that Congress intended any other meaning than what has previously been applied. Regardless, the undersigned finds that Bettersworth fails to establish an adverse determination. The only opportunity for Defendants to make a determination was ComCorp’s sub- mission of a draft application to retain shares of Republic and thereby become a bank holding company. As stated previously, the Board delegated its authority to review hold- ing company applications to Reserve Bank. Reserve Bank, however, does not have the authority to deny an application on behalf of the Board. Reserve Bank simply compiled a commentary for ComCorp’s use in Filing a formal applica- tion with the Board. ) Defendants’ summary judgment evidence establishes a multitude of areas which were not consistent with Board ap- proval. To be certain, some of these areas concerned Better- sworth’s involvement in the past with less than financially * See Connolly v. Comptroller of the Currency, 673 F.Supp. 1419, 1424 (S.D. Tex. 1987), rev'd on other grounds, 876 F.2d 1209 (5" Cir. 1989) 30a stable financial institutions. Perhaps these are areas that Bettersworth could not improve for submission to the Board and the Court suspects this is why ComCorp decided not to pursue the application formally. However, the plain lan- guage of the Privacy Act requires there can be an adverse determination in order for damages to be assessed. See 5 U.S.C. § 552a (g) (1) (C). Because the commentary did not amount to a determination, and indeed Reserve Bank lacked the authority to make a determination. Bettersworth is not entitled to damage pursuant to this section. Ill. RECOMMENDATION The undersigned recommends that the District Court GRANT Defendant’s Motion to Dismiss or in the Alterna- tive for Summary Judgment, DENY Plaintiff's Motion for Partial Summary Judgment; and DISMISS WITH PREJU- DICE Plaintiff's claims brought against Defendants. The undersigned further recommends that all pending motions in this case be denied as moot. IV. OBJECTIONS The parties may file objections to this Report and Recom- mendation. A party filing objections must specifically iden- tify those findings or recommendations to which objections are being made. The District Court need not consider frivo- lous, conclusive, or general objections. See Battis v. United States Parole Comm'n, 834 F.2d 419, 421 (5" Cir. 1987). A party’s failure to file written objections to the proposed findings and recommendations contained in this Report within ten (10) days after that party is served with a copy of the Report shall bar that party from de novo review by the 3la district court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to pro- posed factual findings and legal conclusions accepted by the district court. See 28 U.S.C. § 636 (b) (1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Serv- ice Auto Assoc., 79 F.3d 1415, 1428-29 (5"™ Cir. 1996) (en banc). The Clerk is directed to send a copy of this Report and Recommendation to the parties by certified mail, return re- ceipt requested. SIGNED this 1“ day of February, 2000. STEPHEN H. CAPELLE UNITED STATES MAGISTRATE JUDGE --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2460%3A1. Public record. Not legal advice.