USCA1 Opinion

February 22, 1996

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 95-1604

RICHARD NATHANSON,

Plaintiff, Appellant,

v.

FEDERAL DEPOSIT INSURANCE CORPORATION,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy J. Gertner, U.S. District Judge]

____________________

Before

Selya, Stahl and Lynch,

Circuit Judges.
______________

____________________

Richard Nathanson on brief pro se.

_________________

Ann S. DuRoss, Assistant General Counsel, Robert D. McGillicud

_____________
_____________________
Senior

Counsel,

and Barbara

S.

Woodall,

Counsel, Federal

Depo

____________________
Insurance Corporation, on brief for appellee.

____________________

____________________

Per Curiam.
___________

served as head of

In

March 1992,

plaintiff Richard

the loan workout department at

Nathanson

Rockland Trust

Company ("Rockland") and was in line for promotion to senior vice

president.

the

During that period, James Moore, a bank examiner for

Federal

Deposit

Insurance

Corporation

("FDIC"),

conducting a supervisory examination of Rockland.

the impression,

during several

was

Moore received

discussions of problem

loans in

the department, that plaintiff was being less than cooperative--a

concern

that

he

voiced

to

Rockland

executives.

Shortly

thereafter, Moore learned that plaintiff had been the subject

an Apparent Crime Report ("ACR"),

out of

a line of

guaranteed.

requirements).

credit in

See 12
___

filed by another bank, arising

excess of

C.F.R.

of

353

$3 million

(prescribing

that he

had

ACR reporting

Plaintiff had earlier disclosed this debt to both

Rockland and the FDIC--a fact of

which Moore was unaware.

In an

ensuing discussion with

that

an

inquiry

obligations;

that the

Moore

be

Rockland's president, Moore

conducted

when pressed for

ACR had been filed

explained

termination.

that

he

into

plaintiff's

further information,

but did not disclose

was

not

recommended

requesting

Plaintiff was nonetheless fired

financial

he revealed

its contents.

plaintiff's

from his position

shortly thereafter.

Plaintiff responded by filing the instant action against the

FDIC for

damages under the Privacy Act, claiming that disclosure

of the ACR had been unlawful.

the basis

of the

See 5 U.S.C.
___

undisputed facts recited

-2-

552a(g)(1)(D).

above, the

On

district

court

ended up

granting summary judgment

independent grounds.

First,

for defendant

it held that disclosure of

fell within the Act's "routine use" exception.

see 53 Fed.
___

Reg. 7396,

permitting

disclosure

institution

affected

7398 (1988) (FDIC

of

by

ACRs

Id.
___

enforcement

the ACR

552a(b)(3);

"routine use"

to, inter alia,

___________

activities

on two

"a

or

notice

financial

reported

criminal activities"); see, e.g., FLRA v. Department of Navy, 941

___ ____ ____
__________________

F.2d 49, 52-53,

58 (1st Cir. 1991) (discussing

requirements for

applying routine

even

if the

inasmuch

as

willful,"

use exception).

Alternatively,

Act had

been violated,

Moore's

conduct

as required by

had

no damages

not

the Act.

it ruled that,

been

were available

"intentional

See 5 U.S.C.
___

or

552a(g)(4).

This appeal ensued.

We

affirm on the

latter ground alone.

plaintiff

contends on appeal that

respects:

in finding (1) that

the scope

of the

"affected"

by the

compatible

with

collected.

based

the

disclosure of the

and (2)

purposes

for

to the former,

the court erred

published exception (i.e.,

report),

As

that

which

in two basic

ACR was within

that Rockland

was

such disclosure

was

the

ACR

had

been

It is difficult to fault either of these conclusions

on the arguments before

the court.

What complicates the

issue is a matter

below

that

that the parties inexplicably failed

(but that plaintiff

the

FDIC

contrary.

proposal

See
___

that

has

has emphasized

elsewhere

58 Fed.

ACRs

be

on appeal):

specifically

Reg.

28772,

made

available

to raise

indicated

28773 (1993)

to

the fact

banks

to

the

(rejecting

that

are

-3-

considering

employing

or

doing

business

with

individuals

mentioned therein,

FDIC

on ground that "privacy

from sharing information in reports

anyone

other

authorities").

than

appropriate

restrictions prevent

of apparent crime with

federal

law

The FDIC concedes that such commentary, published

in connection with a 1993 revision to 12 C.F.R.

with the routine use notice at issue here.

that

enforcement

And

353, conflicts

while it insists

the matter can be ignored because of plaintiff's failure to

mention

it below, we think the agency is equally responsible for

failing to alert

the court to

obviously relevant commentary

its own

making.

If the appeal hinged on this question, we would

deem it

appropriate to remand

for consideration thereof

of

by the

district court in the first instance.

Yet

such commentary, published

in 1993, has

no bearing on

whether Moore acted in an intentional or willful fashion in 1992.

And on the basis of the evidence presented, we agree that summary

judgment

for

defendant is

warranted on

this

ground.

As the

parties agree, the intentional or willful standard is a stringent

one which is viewed as "somewhat greater than gross

Britt
_____

v. Naval Investig. Service,

________________________

1989)

(quoting legislative

886 F.2d

history); accord,
______

544, 551

e.g.,
____

Department of HHS, 49 F.3d 597, 602 (9th Cir. 1995).

_________________

formulations,

standard by

courts

have held

that

an

negligence."

(3d Cir.

Wilborn v.
_______

In typical

agency violates

this

"committing the act without grounds for believing it

to be lawful, or by flagrantly

disregarding others' rights under

the Act," Albright v. United States, 732 F.2d 181, 189 (D.C. Cir.
________
_____________

-4-

1984), or by

committing a violation

"so patently egregious

and

unlawful that anyone undertaking the conduct should have known it

unlawful,"

(D.C.

Cir.

Andrews v.
_______

Laningham v. United States Navy,

_________
__________________

1987)

(internal

quotations

Veterans Admin., 838

________________

813 F.2d 1236, 1242

omitted);

F.2d 418,

see,
___

e.g.,
____

424-25 (10th

Cir.)

(reviewing caselaw), cert. denied, 488 U.S. 817 (1988).

____________

Even with the record

construed in the light

most favorable

to plaintiff, there is nothing to suggest that Moore acted in any

such fashion.

of

an

The 1986 routine use notice, permitting disclosure

ACR to

an

"affected"

institution, afforded

grounds for believing that his conduct was lawful.

so

averred, stating

policy

to

bring

that

it was

information

his

reasonable

Moore himself

understanding of

concerning

potential

agency

criminal

activity to the attention of bank officials "in order for them to

be alerted to or correct potential problems."

uncover the fact

obligations--even

that plaintiff had

if

And his failure to

earlier disclosed his

negligent--fell

well

short

of

loan

being

"somewhat greater than gross negligence."

In this regard, plaintiff voices two procedural

complaints:

that

the court

earlier

judgment

resolved the

announcing

that

willfulness issue

it would

stage, and (2) without

not

do

(1) only

so

at the

below

that

properly converted into

defendant's

one for

motion

to

summary judgment.

filed a motion for partial summary judgment.

-5-

summary

addressing his request that any

such ruling be deferred pending further discovery.

acknowledged

after

Yet plaintiff

dismiss

He

was

himself

While he now claims

to have been

caught by surprise by the

no motion for reconsideration

seek to vacate the judgment

quite a

sufficient

at a minimum,

for him

Affirmed.
_________

Instead, he

in the alternative,

to prevail

that a genuine

demonstrated in this regard.

therefore find no error.

And on appeal, he does not

on this basis.

different route--arguing,

evidence is

issue or,

below.

court's ruling, he filed

on the

pursues

that the

willfulness

issue of fact

has been

We disagree in both respects.

We

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