FILED
NOT FOR PUBLICATION JAN 14 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ELVEN JOE SWISHER and WALTER O. No. 09-35638
LINDSEY,
D.C. No. 1:06-cv-00338-BLW
Plaintiffs - Appellants,
v. MEMORANDUM *
K. E. COLLINS; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Idaho
Tena Campbell, District Judge, Presiding
Submitted December 8, 2010 **
Seattle, Washington
Before: O’SCANNLAIN and PAEZ, Circuit Judges, and KENDALL, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Virginia Kendall, United States District Judge for the
Northern District of Illinois, sitting by designation.
Elven Joe Swisher (“Swisher”) and Walter O. Lindsey (“Lindsey”) appeal an
order by the district court granting summary judgment on their Privacy Act,
defamation and breach of contract claims in favor of defendants. They also
challenge the district court’s decision under Federal Rule of Civil Procedure 56(f)
not to permit further discovery. We review de novo a district court’s grant of
summary judgment, and a ruling under Fed. R. Civ. P. 56(f) for abuse of
discretion. Rockwell Int’l Corp. v. Hanford Atomic Metal Trades Council, 851
F.2d 1208, 1210 (9th Cir. 1988); Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir.
1998). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
1. Swisher first argues that the U.S. Marine Corps, National Personnel Records
Center, the Department of Treasury, and the Department of Veterans Affairs
(“federal agency defendants”) violated the Privacy Act (“Act”), 5 U.S.C. § 552a.
The record evidence, however, does not support such a finding. Rather, the record
evidence shows that some of the contested disclosures do not meet the definition of
documents contained within a “system of records” maintained by any of the federal
agency defendants. Id. at § 552a(b); Baker v. Department of Navy, 814 F.2d 1381,
1384 (9th Cir. 1987). Further, a number of the remaining disclosures fall within
specialized categories under the Act that allow for the release of information
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without consent. See 5 U.S.C. §§ 552a(a)(7), 552a(b)(11); 32 C.F.R. §
310.22(b)(5).
Even assuming that Swisher was able to demonstrate a violation of the Act,
he fails to show that the violations were willful or intentional. See Rose v. United
States, 905 F.2d 1257, 1259 (9th Cir. 1990). Accordingly, the district court
properly granted summary judgment on Swisher’s Privacy Act claim.
2. Swisher and Lindsey alleged that the Marine Corps League (“League”),
including a number of its members and officers, The Idaho Observer, and Patrick
and Steven Teague defamed their character and reputation. Specifically, Swisher
and Lindsey contend that the defendants referred to them as “extortionists,”
“blackmailers,” “rapists,” and “stalkers.” In response to the defendants’ motions
for summary judgment, Swisher and Lindsey failed to present any admissible
evidence that demonstrates a genuine issue of material fact regarding whether these
statements were in fact made. Thus, because Swisher and Lindsey failed to present
any admissible evidence, the district court properly granted summary judgment as
a matter of law on the defamation claims.
We further note that with regard to the Teagues, any alleged defamatory
statements are barred by the Idaho Tort Claims Act (“ITCA”). The Teagues were
state employees with the Idaho Division of Veterans Services at the time the
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relevant events occurred. The ITCA provides employees with governmental
immunity from defamation claims arising out of actions within the employee’s
scope of employment, if such actions were without malice or criminal intent.
Idaho Code Ann. § 6-904(3). Here, Swisher and Lindsey failed to present any
evidence to rebut the Teagues’ evidence that any such alleged statements occurred
within the scope of their employment. Moreover, the summary judgment record
does not show that any of the alleged defamatory statements were made with
malice or criminal intent.
3. Next, Swisher and Lindsey contend that the League violated its bylaws when
it expelled Swisher and suspended Lindsey from the organization. The district
court found that the League’s Bylaws and Administrative Procedures (“Bylaws”)
constitute the League’s contract with its members, and thus the court’s review was
limited to whether the League followed the procedures set forth in the Bylaws.
The evidence in the summary judgment record demonstrates that the League
substantially complied with its procedures by providing Swisher and Lindsey with
adequate notice of the charges against them, and a full and fair hearing to present
their defenses to the charges. Moreover, both Swisher and Lindsey were
represented by advocates during the hearing. Because the League complied with
its procedures, Swisher and Lindsey’s breach of contract claim fails as a matter of
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law. Therefore, the district court did not err in granting summary judgment on this
claim
4. Finally, Swisher and Lindsey contend that the district court should have
granted their Rule 56(f) request for a continuance. Rule 56(f) allows the district
court to “order a continuance” to conduct additional discovery when a party
opposing a motion for summary judgment “shows by affidavit that, for specified
reasons, it cannot present facts essential to justify its opposition.” Fed. R. Civ. P.
56(f). A district court’s denial of a Rule 56(f) request is reviewed for abuse of
discretion. Margolis, 140 F.3d at 853.
Here, Swisher and Lindsey did not present specific reasons to support their
request, but rather relied on the generalized and conclusory allegations contained in
their complaint and other documents previously filed. Moreover, Swisher and
Lindsey had ample time and opportunity to conduct discovery, but failed to do so.
We therefore conclude that the district court did not abuse its discretion in denying
Swisher and Lindsey’s Rule 56(f) motion.
AFFIRMED.
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