Maydak v. U.S.

Citation630 F.3d 166
Decision Date28 December 2010
Docket NumberNo. 07–5352.,07–5352.
PartiesKeith MAYDAK, et al., Appellantsv.UNITED STATES of America, et al., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

OPINION TEXT STARTS HERE

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. Doan, and William J. Durkin, 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.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 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 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 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 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...

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