Revised May 3, 2001

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 00-50262

JAMES A. BETTERSWORTH,

Plaintiff-Appellant,

VERSUS

FEDERAL DEPOSIT INSURANCE CORPORATION; OFFICE OF THE

COMPTROLLER OF THE CURRENCY; BOARD OF THE FEDERAL RESERVE;

FEDERAL RESERVE BANK OF KANSAS CITY,

Defendants-Appellees.

Appeal from the United States District Court

For the Western District of Texas

April 12, 2001

Before REAVLEY, SMITH, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Plaintiff James A. Bettersworth appeals the district court's

order granting summary judgment in favor of defendants, the Federal

Deposit Insurance Corporation (FDIC), the Office of the Comptroller

of the Currency (Office of the Comptroller of the Currency), the

Board of Governors of the Federal Reserve System (the Board), and

the Federal Reserve Bank of Kansas City (the Reserve Bank), and2

dismissing his claims. We affirm.

I. BACKGROUND

Bettersworth has an extensive ba ckground in the banking

industry, which is well documented in the summary judgment record

before the Court. Between 1973 and 1980, Bettersworth was employed

by the First National Bank of Seguin. In 1981, Bettersworth formed

Southwest Commercial Capital, Inc. (SWCC), which is described as a

venture capital company. In 1983, Bettersworth founded First

Commercial Bank of Seguin, Texas (FCB), a federally chartered bank,

where he served as Chief Executive Officer and Chairman of the

Board until 1989. In 1984, Bettersworth formed Southwestern

ComCorp, Incorporated (ComCorp), a non-ban k holding company.

Bettersworth also formed a second small business investment company

called Southwestern Venture Capital (SVC). Bettersworth placed

SWCC and SVC under the umbrella of ComCorp. Bettersworth owned

either a participatory interest or a management position or both in

these ventures. Bettersworth also owned a controlling interest or

management position in other related financial institutions.

In 1987, ComCorp acquired the Republic Bank of Tecumseh,

Oklahoma (RBT) by foreclosure, and Bettersworth assumed control of

RBT. The Bank Holding Company Act (BHCA), 12 U.S.C. § 1841-1850,

provides that no company may gain control of a bank without prior

approval of the Board of Governors of the Federal Reserve System.

See 12 U.S.C. § 1841; id

. § 1842(a). The Act contains an exception3

to the requirement for prior Board approva l when controlling

interest in a bank is obtained in the course of collecting upon a

previously contracted debt. 12 U.S.C. § 1841(a). In such a case,

the company assuming control of the bank must divest itself of the

acquired bank shares within two years. I d

. That two-year period

may be extended one year at a time, but the maximum time period

during which a company may hold shares giving it a controlling

interest in a bank is five years. I d

. ComCorp's foreclosure of a

debt owed by one of RBT's officers and guaranteed by RBT assets

fell within the foreclosure exception to the requirement for prior

Board approval. Moreover, ComCorp received an extension, which

permitted ComCorp to hold R BT for up to five years, or until

December 1993, before securing Board approval or divesting itself

of the RBT assets.

In 1989 or 1990, Bettersworth resigned from his positions with

FCB and RBT. Bettersworth also lost control of ComCorp. In early

1993, Bettersworth and a partner regained controlling interest in

ComCorp. In October 1993, ComCorp filed an application for bank

holding company (BHC) status under the BHCA with the Federal

Reserve Bank of Kansas City (the Reserve Bank). Federal Reserve

Banks are authorized to receive and review applications for BHC

status. The controlling regulations permit the Reserve Bank to

either approve the application or to refer it to the Board. S ee 12

C.F.R. § 225.15. Thus, the Reserve Bank has no authority to1 The Office of the Comptroller of the Currency (OCC) is the

primary federal regulator of nationally chartered banks. OCC is

involved in this case because of Bettersworth's affiliation with

FCB, a federally chartered bank that was a member of the Federal

Reserve System.

4 finally deny an application f or BHC status. When considering

whether to approve an application for BHC status, the Board is

authorized to consider inter alia “ the financial and managerial

resources and future prospects of the company or companies and the

banks concerned,” id

. § 1842 (c)(2), which in turn includes

“consideration of the competence, experience, and integrity of the

officers, directors, and principal shareholders of the company or

bank, id . § 1842(c)(5).

C omCorp's application for BHC status proposed that ComCorp

retain 100 percent of RBT. The application disclosed

Bettersworth’s prior affiliations with FCB and RBT. Accordingly,

Pamela Johnson, the Reserve Bank of ficial assigned to review the

application, began retrieving and reviewing the records maintained

by other banking regulatory agencies on those banks.

Johnson reviewed OCC records relating t o the financial

condition and management of FCB. 1 Those records included

unfavorable assessments of both the condition of the bank and the

bank's management, incl u ding Bettersworth. Records from bank

examinations conducted shortly after Bettersworth left FCB reported

that the bank was in bad financial shape and suggested that

Bettersworth's placement of SBA loans generated by ComCorp or its2 FDIC is a corporation created by Congress, which insures the

deposits of banks and savings associations. FDIC is also the

primary federal regulator for state chartered banks that are not

members of the Federal Reserve System. FDIC is involved in the

case because of Bettersworth's affiliation with RBT, a state

chartered bank that was not a member of the Federal Reserve System.

5 affiliates contributed to the bank's poor financi al status.

Johnson also reviewed the OCC's Supervisory Monitoring System

(SMS), a confidential database maintained by the OCC and accessible

with a password by other banking regulatory agencies. The SMS

likewise contained an entry blaming Betters worth and another

individual for the “bank’s poor con dition,” and concluding that

“these individuals should not be approved in an executive capacity

at a troubled institution.” Bettersworth identifies this

statement in th e OCC database as an adverse determination within

the meaning of the Privacy Act, 5 U.S.C. § 552a(g)(1)(c).

Johnson also reviewed FDIC 2 records relating to the financial

condition and management of RBT. Those records included

unfavorable assessments of both the condition of the bank and the

bank's management, including Bettersworth. Records from

examination s conducted after Bettersworth left RBT reported that

the bank was in bad financial shape and suggested that

Bettersworth's placement of SBA loans generated by ComCorp or its

affiliates contributed to the bank's poor financial status.

Certain records also sugges ted that Bettersworth and another6

individual forced RBT into foreclosure so that SWCC could obtain

the assets of RBT without having to comply with the BHCA.

Johnson also telephoned OCC and FDIC examiners familiar with

FCB and RBT examinations and discussed the se matters with the

examiners. Johnson also consulted internal Reserve Bank records.

Through her investigations, Johnson learned that the banks had

charged off large loans made to Bettersworth or his companies.

Bettersworth's personal guarantee on one such loan had forced his

own personal bankruptcy. In sum, Johnson's investigation generated

signifi c ant questions concerning, among other things, the RBT

foreclosure, Bettersworth's decision to place a substantial number

of SBA loans generated by his own compani es with banks which he

also controlled, and Bettersworth's failure to honor or default

upon certain loans extended to him personally or to his companies

by the banks which he managed. Johnson eventually authored a memo

to Reserve Bank vice-pre sident Stephen McBride, setting out the

problems with ComCorp's BHCA application.

On November 5, 1993, Reserve Bank vice-president McBride

issued a letter stating that the Reserve Bank had completed its

review and identified several areas of concern with respect to the

application. The areas of concern were stated in some detail and

specific questions were posed at the end of the letter, the answers

to which could have significantly enhanced the possibility of

approval. The letter concluded that, based upon the existing7

information, the prospects for approval were "extremely dim," and

that any further application would be con sidered directly by the

Board. ComCorp did not, however, pursue the application further by

providing the specific information requested in an amended

application to the Board. Rather, ComCorp abandoned the

application and negotiated the sale of RBT, which closed in early

1994.

In 1995, Bettersworth decided he wanted to start a new bank in

Lakeway, Texas and began trying to clear his name. After informal

efforts failed, Bettersworth made Privacy Act requests in October

1995. Bettersworth requested records on himself, stating three

variations on his name. The agencies responded that they either

did not have records responsive to his request or that the

documents they had were not subject t o the Privacy Act.

Bettersworth subsequently learned that the agencies maintained

confidential records relating to bank examinations that sometimes

contained comments about bank management. Bettersworth made

another Privacy Act request for those records, which was denied

because the records were not kept in a "system of records" tied to

his name. There does not appear to be any dispute about the fact

that these records were maintaine d, in accordance with the

agencies' regulatory purpose, in files on the banks with which

Bettersworth was affiliated rather than in a file on Bettersworth.3 Bettersworth also alleged that the agencies violated subsection

552a(e)(5) 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

completeness as is reasonably necessary to assure fairness to the

individual in the determination.” This statutory obligation is

made enforceable by substantively identical language in subsection

8 II. PROCEDURAL HISTORY

In August 1997, Bettersworth filed suit claiming that the

defendant agencies violated his rights under the Privacy Act,

5 U.S.C. § 552a. Bettersworth raised three claims. First,

Bettersworth claimed that the agencies denied his request for

access to information about him in a Privacy Act system of records,

in violation of 5 U.S.C. § 552a(d)(1) (obligating an agency to

provide access to covered records); see also i d . § 552a(g)(1)(B)

(providing a civil remedy for violation of § 552a(d)(1)). Second,

Bettersworth claimed that the ag encies made a number of adverse

determinations about him on the basis of inaccurate and incomplete

records, in violati on of 5 U.S.C. § 552a(g)(1)(C). Finally,

Bettersworth claimed that the agencies violated subsection

552a(e)(1) (requiring that agencies maintain only such records as

are required to perform a legitimate agency function) and

subsection 552a(e)(7) (prohibiting the maintenance of records

describing how an individual ex e rcised First Amendment rights

unless authorized by statute or the subject individual) “in such a

way as to have an adverse effect on" him. See 5 U.S.C.

§ 552a(g)(1)(D). 3552a(g)(1)(C). Bettersworth's allegation under subsection

552a(e)(5) is therefore subsumed by his allegation under subsection

552a(g)(1)(C).

9 In January 1998, the agencies filed a motion to dismiss, which

was denied. In February 1999, Bettersworth amended his complaint

to allege additional facts in support of his three Privacy Act

claims. In June 1999, Bettersworth moved for partial summary

judgment on the access claim. That same month, the agencies filed

a motion to dismiss, or in the alternative, for summary judgment.

The district court referred the motions to a magistrate judge, who

recommended that the agencies' motion be granted. Bettersworth

filed objections, and the district court conduc ted a de novo

review, after which the district court granted the agencies' motion

and dismissed all of Bettersworth's claims with prejudice.

Bettersworth filed a timely notice of appeal.

Summary judgment is appropriat e when there are no genuine

issues of material fact, and the moving party is entitled to

judgment as a matter of law. F E D

. R. C IV

. P. 56. A moving party may

rely upon the absence of evidence to support an essential element

of the non-movant's case. S ee Duffy v. Leading Edge Prods.

, 44

F.3d 308, 310 (5th Cir. 1995). Once that showing is made, the nonmoving 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.

Id

. Thus, the district court was charged with examining the10

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, applying the same standards as did the district

court. Id . at 312.

III. BETTERSWORTH'S ACCESS CLAIM

Subsection 552a(d)(1) of the Privacy A ct 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 hi m, except that the agency may

require the individual to furnish a written

statement authorizing discussion of that

individual's record in the accompanying person's

presence.

5 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 co ntrol of any agency from

which the informati on 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 the11

plaintiff are maintained in a "system of records" retrievable by an

"ide ntifying particular assigned to" the plaintiff. This

qualifying language in the statute reflects a statutory compromise

between affording individua ls access to those records relating

directly to them and protecting federal agencies from the

burdensome task of searching through agency records 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 plaintiff under ethics investigation and

thus records were not accessible under the Privacy Act, even though

the file contained information about the plaintiff); H udson v.

Reno

, 130 F.3d 1193, 1206 (6th Cir. 1997) (records not accessible

under the Privacy Act because not r etrievable by the plaintiff’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 records by the plaintiff’s name,

because the agency as a practical 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 the12

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 examiner John son

from various agencies and then included in Reserve Bank files

concerning ComCorp’s applicat ion for BHC status, were not

maintained in a system of records retrievable by Bettersworth’s

name, and were therefore not accessible 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 associated, 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

responsibilities 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 th e records pertained to him. Alternatively,

Bettersworth maintains that the agencies used t he bank files as

surrogate identifiers for records pertaining to him. We decline to

interpret the statute in a ma nner that would deny meaning to the

statuto ry language requiring that the records be retrievable “by

some identifying number, symbol, or other identif ying particular

assigned to the individual.” 5 U.S.C. § 552a(a)(5); i d

.

§ 552a(d)(1). Moreover, Bettersworth's assertion that the agencies13

used the bank files as a surr ogate identifier for information

relating to him finds no support in the record. For these reasons,

we affirm the distr ict court's dismissal of Bettersworth's claim

that he was denied access to records subject to disclosure under

the Privacy Act.

IV. BETTERSWORTH'S ADVERSE DETERMINATION CLAIM

Subsection 552a(g)(1)(C) provides a civil remedy whenever an

agency:

fails to maintain any record concerning any

i ndividual 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 determination

claim is premised almost entirely upon the Reserve Bank’s handling

of ComCorp’s BHCA application. Specifically, Bettersworth claims

that the following items constitute adverse determinations against

him within the meaning of § 552a(g)(1)(C): (1) Reserve Bank vicepresident McBride's November 5, 1993 letter informing ComCorp that

the prospects 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 wit h Bettersworth's lawyers about the viability of

C omCorp's BHCA application; (3) Reserve Bank examiner Johns on's4 On this point, we note that Betterswor th's allegations do not

directly identify adverse determinations made by each and every

defendant agency. To the contrary, Bettersworth premises his claim

agai nst the other defendants primarily upon the fact that the

Reserve Bank accessed and relied upon reco rds from the other

agencies when making its determination. At least one court has

recognized that such a connection may be sufficient to support

liability. S ee Dickson

, 828 F.2d at 36. Because we affirm the

district 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 d o not decide whether such a showing is

sufficient in this Circuit.

14 working papers and notes prepared in the course of her review of

ComCorp's BHCA application; and (4) the entry in the OCC's SMS

database flagging Bettersworth's role in the financial decline of

FCB. The district 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

constituted 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

letter. 4 The district court held that McBride's November 5, 1993

letter did not constitute a determina tion because 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 with15

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 cannot be

considered an adverse determination because the Reserve Bank had no

authority to deny ComCorp’s applicati on. The controlling

regulations permit only two courses of action; the Reserve Bank can

either approve an application for BHC status or refer it to the

Board for further consideration. S ee 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 denied. S ee 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 determination could

be made. In this same vein, the defendant agencies maintain that,

even if the November 5, 1993 letter constituted a determination of

any sort, it would be a determination against ComCorp, the company

making the application, rather than against Bettersworth

personally. Having reviewed the record, we are persuaded that the

diverse 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 d id not constitute an adverse

determination against Bettersworth within the meaning of

§ 552a(g)(1)(C).16

With regard to the remaining items identified by Bettersworth

as adverse determinations, the agencies ask the Court to hold that

the word "determination" as used in the statute must mean something

akin to a formal or final administrative decision. We need not go

that far in order to say that no determination was made in this

case. At the very least, informal oral or written statements made

in the deliberative process about a particular administrat i ve

determination do not constitute the determination itself. We

therefore affirm the district 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 provision of this

section, or any rule promulgated thereunder, in s uch a way as to

ha ve an adverse effect on an individual.” Bettersworth asserts

that the defendant agencies kept information on him that was

unnec essary to the agencies’ mandated purpose, in violation of

subsection 552a(e)(1), and that the agency maintained records

describing Bettersworth’s exercise of his First Amendment rights,

in violation of subsection 552a(e)(7). Beyond these general

assertions, Bettersworth does not describe what portions of which17

records maintained by which agencies show such violations.

Bettersworth 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 appellate

parties provide cogent argument, supported by citation 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 absence of such briefing, we

decline to address Bettersworth's claim that the district court

erroneously dismissed his § 552a(g)(1)(D) claim. S ee

, e.g.

, Matter

of T-H New Orleans Ltd. Partnership , 116 F.3d 790, 796 (5th Cir.

1997); Meadowbriar Home for Children, Inc. v. Gunn

, 81 F.3d 521,

532 (5th Cir. 1996).

CONCLUSION

The district court's order granting summary judgment in favor

of the defendants (the Federal Deposit Insurance Corporation, 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 plaintiff Bettersworth's Privacy Act

claims with prejudice is AFFIRMED.