Lepelletier v. Federal Deposit Insurance

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 16, 1998 Decided January 5, 1999

No. 97-5287

Robert Lepelletier, Jr.,

Appellant

v.

Federal Deposit Insurance Corporation, et al.,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 96cv01363)

Robert Lepelletier, Jr., appearing pro se, argued the cause

and filed the briefs for appellant.

Allison M. Zieve, appointed by the court, argued the cause

as amicus curiae on behalf of appellant. With her on the

briefs was Alan B. Morrison, appointed by the court.

Jaclyn C. Taner, Counsel, Federal Deposit Insurance Cor-

poration, argued the cause for appellees. With her on the

brief were Ann S. DuRoss, Assistant General Counsel, and

Lawrence H. Richmond, Acting Senior Counsel. Michelle

Kosse and Robert D. McGillicuddy, Counsel, entered appear-

ances.

Before: Edwards, Chief Judge, Williams and Ginsburg,

Circuit Judges.

Opinion for the Court filed by Chief Judge Edwards.

Edwards, Chief Judge: Robert Lepelletier, Jr., an indepen-

dent money finder, seeks the release of the names of deposi-

tors with unclaimed funds at three banks for which the

Federal Deposit Insurance Corporation ("FDIC") is now the

receiver. In the seven years since the FDIC began its

receiverships, agency officials have sent only one notice to the

last known addresses of the banks' depositors. Approximate-

ly $3.5 million is at stake; if the money in question remains

unclaimed, it will be forfeited to the FDIC.

In December 1995, pursuant to a Freedom of Information

Act ("FOIA") request filed by Lepelletier, the FDIC released

a list of the amounts of all unclaimed deposits, as well as the

governmental entities and deceased individuals associated

with unclaimed deposits. The FDIC refused, however, to

release the names of corporations and living individuals

whose deposits remained unclaimed. Lepelletier then filed

suit in District Court and advanced three principal causes of

action: (1) he asserted that, under FOIA, the FDIC was

required to release all of the names of parties with unclaimed

deposits; (2) he contended that, under the due process clause

of the Fifth Amendment, the FDIC was required to publish

the names of all parties with unclaimed funds, along with the

precise amounts due to each party, before forfeiting the

funds; and, finally, (3) he claimed that the FDIC breached an

agreement with him, pursuant to which he was to find former

bank funds and advise the agency how it could recover those

funds, and then "falsely" induced him to enter settlement

negotiations.

The District Court dismissed Lepelletier's contract-related

claims, and granted summary judgment in favor of the FDIC

on his due process and FOIA claims. We affirm the District

Court's dismissal of Lepelletier's contract-related claims, but

reverse in part its grant of summary judgment in favor of the

FDIC on the other two claims. We reject Lepelletier's claim

that he is entitled to a list of the precise amounts due to each

named depositor. However, we find that he has stated a

viable claim that the FDIC may be legally obliged to disclose

the names of certain depositors. The general issue to be

resolved, under both FOIA and the due process clause, is

whether public disclosure can be justified by reason of a

depositor's pecuniary interest in recovering the funds, as

against that person's countervailing interest in privacy.

We find that Lepelletier has standing to assert a due

process claim on behalf of the depositors with unclaimed

funds. In addition, because the District Court failed to

develop evidence relevant to the adequacy of the depositors'

notice and failed to weigh that evidence as required by

established case law, we must remand the case for a determi-

nation of whether the FDIC's notice to the depositors was

consistent with due process. We also remand Lepelletier's

FOIA claim, because the depositors' interest in discovering

the amounts that they are owed may outweigh their privacy

interest, thus requiring the release of their names under

FOIA.

I. Background

A.The FDIC Receiverships

On August 10, 1991, the Office of the Comptroller of the

Currency closed the National Bank of Washington. On May

10, 1991, that office had also closed the Madison National

Bank of Washington, D.C. and the Madison National Bank of

Virginia. After closing, the three banks were placed under

FDIC receivership. See 12 U.S.C. s 1821(c)(2)(A)(ii) (1994).

As receiver, the FDIC assumed control of all bank records,

see id. s 1821(d)(2)(A)(ii), and was also required to pay off all

insured deposits from the three banks, either by paying cash

to requesting depositors, or by depositing funds that would be

available to each depositor at other local banks. See id.

s 1821(f).

At the time of the receiverships in this case, the FDIC was

only required to send one notice to depositors at their last

known addresses, advising the depositors of their unclaimed

funds. See 12 U.S.C. s 1822(e) (Supp. IV 1992) (amended

1993). After sending the notices, the FDIC had to allow at

least three months for depositors to make claims; however,

all claims had to be made within eighteen months of the

appointment of the receiver. See id. Any deposits not

claimed within eighteen months were to be "refunded" to the

FDIC. See id.

In 1993, Congress revised the notification procedures of

s 1822(e). See Unclaimed Deposits at Insured Banks and

Savings Associations, Pub. L. No. 103-44, 107 Stat. 220 (1993)

("Act"). For receiverships established after the 1993 law

went into effect, the FDIC is required to mail two notices to

the "last known address of the depositor appearing on the

records" of the bank: the first must be sent within thirty

days of the FDIC's first payment to depositors in its role as

receiver; the second must be mailed fifteen months later to

all depositors who did not respond to the first notice. See id.

ss 1 (codified at 12 U.S.C. s 1822(e)(1) (1994)), 2(a). For

those receiverships that began after January 1, 1989 and

were still in progress at the time of the enactment of the new

law, however, the notification procedures remained the same

as they were prior to the passage of the Act.

Although the notification procedures did not change, the

new law did change some aspects of existing receiverships.

First, the time limit for depositors to claim their money was

extended to the date when the FDIC terminates the receiver-

ship. See id. s 2(b). Second, states could, within 120 days

after the passage of the Act, request the name and address of

any depositor eligible to make a claim. See id. s 2(c). How-

ever, there is no requirement that the FDIC notify the

depositors of these changes in the law, and it did not do so

here. See Lepelletier v. FDIC, 977 F. Supp. 456, 464 (D.D.C.

1997). Indeed, with respect to the depositors at issue in this

case, the FDIC has sent only one notice to the depositors at

their last known addresses as required by the previous ver-

sion of s 1822(e). Thus, even though approximately $3.5

million remains unclaimed, no additional notices have been

sent in the seven years since the FDIC began its receiver-

ship.

On December 22, 1996, the FDIC announced its intention

to terminate the receivership of the Madison National Bank

of Virginia. It also "expressed a desire to terminate the

receivership of the [National Bank of Washington] and Madi-

son National Bank of Washington, D.C." Lepelletier, 977

F. Supp. at 459. After Lepelletier sought an injunction to

prevent the FDIC from terminating the receiverships, the

FDIC agreed not to take any action until this lawsuit is

resolved. See id.

B.Lepelletier's Lawsuit

In August 1994, Lepelletier entered into an agreement with

the FDIC, in its role as receiver for the three failed banks.

See Agreement, reprinted in Joint Appendix ("J.A.") 15.

Under that agreement, Lepelletier was to find former bank

funds and advise the FDIC as to how it could recover those

funds. In return, the FDIC agreed to pay Lepelletier ten

percent of any funds recovered. The FDIC terminated the

agreement in February 1995. See Letter from James R.

Foster, FDIC, to Robert Lepelletier, Jr. (Mar. 1, 1995),

reprinted in J.A. 18.

In October 1995, Lepelletier filed FOIA requests for the

names of those depositors with unclaimed deposits at the

three banks. In December 1995, the FDIC released a list of

the amounts of all unclaimed deposits, as well as the names of

governmental entities and deceased individuals associated

with unclaimed deposits. The lists given to Lepelletier indi-

cate that approximately $3.5 million remains unclaimed. See

Brief of the Appellant at 8. Although the FDIC released the

amounts of the unclaimed deposits, it refused to release the

names of corporations and living individuals associated with

those deposits, citing Exemption 4, 5 U.S.C. s 552(b)(4), and

Exemption 6, 5 U.S.C. s 552(b)(6), of FOIA.

When the FDIC refused to release the complete list of

depositors' names, Lepelletier filed suit against the FDIC and

three of its officials. He alleged that, under FOIA, the FDIC

was required to release all of the names of parties with

unclaimed deposits. He also argued that, because the Dis-

trict of Columbia had published some names with unclaimed

deposits in the Washington Times in August 1994 at the

FDIC's request, the information was no longer protected. In

addition, he claimed that under the due process clause of the

Fifth Amendment, the FDIC was required to publish the

names of all parties with unclaimed deposits before forfeiting

the funds, rather than simply send notices to the last known

addresses pursuant to the pre-amendment version of

s 1822(e). Finally, Lepelletier asserted that the FDIC had

breached its 1994 agreement with him and then "falsely"

induced him to enter into settlement negotiations.

The FDIC officials moved to dismiss the FOIA claim as to

them, because individuals are not proper defendants to a

FOIA action. The FDIC also moved to dismiss the contract

claim, arguing that (1) Lepelletier had not alleged that he was

due anything under the agreement, (2) the failure to reach a

settlement before litigation does not give rise to a cause of

action, and (3) the complaint contradicted Lepelletier's asser-

tion that the FDIC "falsely" induced him into settlement

talks. The District Court granted the motions to dismiss on

January 23, 1997. See Lepelletier v. FDIC, No. 96-1363,

Order (D.D.C. Jan. 23, 1997), reprinted in J.A. 65-66.

The parties then moved for summary judgment on the

remaining issues. On September 8, 1997, the District Court

granted summary judgment in favor of Lepelletier with re-

spect to the FDIC's withholding of the names of corporations

with unclaimed funds. See Lepelletier, 977 F. Supp. at 460.

The court held that Exemption 4, which protects "confiden-

tial" financial information, did not apply here. The FDIC did

not appeal this ruling.

On the remaining claims, however, the District Court

granted summary judgment in favor of the FDIC. With

respect to the withholding of the names of living individuals

with unclaimed funds under Exemption 6, which permits the

FDIC to withhold information if its disclosure would consti-

tute an unwarranted invasion of a person's privacy, the court

held that, while "[a] slight privacy interest is at stake in this

case," Lepelletier had not identified any public interest in

disclosure of the information. See id. at 461. Accordingly,

the FDIC had properly withheld the depositors' names under

FOIA. The court also found that, although Lepelletier ar-

gued that the information had been printed in the Washing-

ton Times and, thus, had become publicly available, he had

failed to show that the specific information he sought was

duplicated in the public domain. See id. at 461-62. Absent

this showing, the court held that Lepelletier was not entitled

to the information. See Public Citizen v. Department of

State, 11 F.3d 198, 201 (D.C. Cir. 1993).

On Lepelletier's due process claim, the court first found

that Lepelletier had standing to bring the claim in light of his

interest as an independent money finder in developing a

business relationship with those who had unclaimed deposits,

and because his interest in obtaining publication of their

names was consistent with their interest in receiving notice of

the unclaimed deposits that they could not claim without

notice. See Lepelletier, 977 F. Supp. at 462-63. On the

merits of Lepelletier's claim, however, the trial court found

that the FDIC had satisfied the due process clause by

sending written notice to the holders of unclaimed deposits at

their last known addresses, as required by the pre-

amendment version of s 1822(e). See id. at 463-64.

II. Analysis

This appeal presents four major issues: (1) whether Lepel-

letier has standing to raise the due process claim; (2) wheth-

er the notification procedures employed by the FDIC in this

case satisfied due process; (3) whether the names of the

depositors with unclaimed funds must be released under

FOIA; and (4) whether the District Court properly dismissed

Lepelletier's contract-related claims. We begin with Lepelle-

tier's due process claim.

A.Due Process

Lepelletier argues that the District Court erred in granting

summary judgment in favor of the FDIC on his due process

claim. Because there is no dispute regarding the material

facts of this case, "we focus on the court's application of

relevant law." Painting and Drywall Work Preservation

Fund, Inc. v. HUD, 936 F.2d 1300, 1302 (D.C. Cir. 1991). We

begin with whether Lepelletier has standing to raise a due

process claim.

1.Lepelletier's Standing

Because Lepelletier seeks to raise the rights of third

parties--the depositors--he must show that he has standing

under Article III, and that he satisfies third party, or jus

tertii, standing requirements. See Caplin & Drysdale, Char-

tered v. United States, 491 U.S. 617, 623-24 n.3 (1989). The

District Court found that Lepelletier had shown both, and we

agree.

Article III standing requires that Lepelletier demonstrate

that he has suffered an injury that "is (a) concrete and

particularized, and (b) actual or imminent, not conjectural or

hypothetical. Second, there must be a causal connection

between the injury and the conduct complained of--the injury

has to be fairly traceable to the challenged action of the

defendant, and not the result of the independent action of

some third party not before the court. Third, it must be

likely, as opposed to merely speculative, that the injury will

be redressed by a favorable decision." Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992) (citations, internal quota-

tion marks, and footnote omitted).

In this case, Lepelletier's alleged injury is the "denial of

the opportunity to develop a business relationship with depos-

itors who have unclaimed deposits." Lepelletier, 977 F. Supp.

at 462. The FDIC contends that this allegation is not

enough, and that Lepelletier must have existing contracts

with the depositors to locate their unclaimed funds before he

can show an injury sufficient to support standing. See Brief

for Appellees at 11. This court, however, has held that the

denial of a business opportunity satisfies the injury require-

ment. For example, in CC Distributors, Inc. v. United

States, 883 F.2d 146, 150 (D.C. Cir. 1989), the court found

that a group of contractors who had operated civil engineer

supply stores for the Air Force had standing to challenge the

Department of Defense's decision to convert the program

under which they had previously operated to an in-house

operation. In so finding, the court stated that "a plaintiff

suffers a constitutionally cognizable injury by the loss of an

opportunity to pursue a benefit ... even though the plaintiff

may not be able to show that it was certain to receive the

benefit had it been accorded the lost opportunity." Id.; cf.

West Va. Ass'n of Community Health Ctrs. v. Heckler, 734

F.2d 1570, 1575 (D.C. Cir. 1984) (noting that in Village of

Arlington Heights v. Metropolitan Housing Dev. Corp., 429

U.S. 252 (1977), "the individual plaintiff's injury was the

denial of an opportunity to obtain housing for which he would

otherwise be qualified. Certainty of success in seeking to

exploit that opportunity was not required."). Because Lepel-

letier has credibly alleged he will suffer the loss of a business

opportunity, he has satisfied the injury requirement of the

Article III standing analysis.

Next, Lepelletier must show that his injury is the result of

the FDIC's actions. Lepelletier also satisfies this require-

ment, because Lepelletier's alleged injury stems from the

FDIC's refusal to release the names of those with unclaimed

deposits. Moreover, the FDIC is in the process of terminat-

ing its receivership of the banks, in which case the funds

would become the property of the FDIC. Thus, the District

Court also correctly found that Lepelletier had met the

second requirement of standing.

The final requirement is that Lepelletier must show that

his injury may be redressed by the court. The relief Lepelle-

tier seeks is a declaration that the notice provided under the

pre-amendment version of s 1822(e) is not constitutionally

adequate and that public disclosure of the depositors' names

is required. A possible problem for Lepelletier with respect

to the redressability prong of standing is that a court could

hold that, even though the notice provided to the depositors

was constitutionally infirm, a remedy short of full public

disclosure would be adequate. Such a remedy would not

appear to redress Lepelletier's injury, because he would not

learn the names of parties with unclaimed deposits and, as a

consequence, he would remain unable to contact those individ-

uals in the hope of soliciting business from them.

We need not struggle with this concern, however, because

the possibility of public disclosure, "though not a certainty, is

sufficient to meet the redressability requirement." Northeast

Energy Assocs. v. FERC, 158 F.3d 150, 154 (D.C. Cir. 1998);

see also Motor & Equip. Mfrs. Ass'n v. Nichols, 142 F.3d 449,

457-58 (D.C. Cir. 1998) (holding that the possibility that the

EPA would change its rules if the ones it had promulgated

were vacated satisfied the redressability requirement because

it gave the petitioner the opportunity of a favorable outcome

in the new rulemaking). Thus, because it is possible that the

court could find that the names should be published, Lepelle-

tier has satisfied this final requirement. We therefore find

that Lepelletier has standing under Article III to bring a due

process claim.

Next, we must determine whether Lepelletier, as a third

party, may raise a claim alleging a violation of the depositors'

due process rights. Although the "limitations on a litigant's

assertion of jus tertii are not constitutionally mandated, ...

[they] stem from a salutary 'rule of self-restraint' designed to

minimize unwarranted intervention into controversies where

the applicable constitutional questions are ill-defined and

speculative." Craig v. Boren, 429 U.S. 190, 193 (1976).

The Supreme Court has articulated three prudential con-

siderations to be weighed when determining whether an

individual may assert the rights of others: (1) "[t]he litigant

must have suffered an 'injury in fact,' thus giving him or her

a 'sufficiently concrete interest' in the outcome of the issue in

dispute," (2) "the litigant must have a close relation to the

third party," and (3) "there must exist some hindrance to the

third party's ability to protect his or her own interests."

Powers v. Ohio, 499 U.S. 400, 411 (1991) (quoting Singleton v.

Wulff, 428 U.S. 106, 112-16 (1976)); see also Craig, 429 U.S.

at 195-96.

In this case, the first and third factors are easily satisfied.

As discussed above, Lepelletier has suffered an injury in

fact--the loss of a real business opportunity--which gives him

a concrete interest in the resolution of this suit. There is also

a hindrance preventing the depositors from protecting their

interests: the depositors are likely unaware of their un-

claimed funds, and these funds soon will be forfeited to the

FDIC. And even though a depositor may be able to bring a

due process claim after the money is forfeited to the FDIC,

the likelihood of a depositor discovering his right to the

unclaimed funds without additional notice appears rather

remote. Thus, the hindrance to the depositors here is suffi-

cient to satisfy the third prudential concern.

The second factor--whether there is a "close relation"

between Lepelletier and the depositors--is more troubling

than the other two, but we nevertheless find that it is

satisfied here. As the District Court pointed out, the reason

for the "close relation" factor is "to ensure that the plaintiff

will act as an effective advocate for the third party." Lepelle-

tier, 977 F. Supp. at 463; see also Singleton, 428 U.S. at 114-

15. Here, Lepelletier seeks to sell his services to the deposi-

tors. But because Lepelletier does not even know the names

of the depositors, he "has no close and confidential relation-

ship with the depositors." Brief for Appellees at 14. Howev-

er, the Court has never required a confidential relationship

between the parties in order to have standing. To the

contrary, it has only required a "close relation" in the sense

that there must be an identity of interests between the

parties such that the plaintiff will act as an effective advocate

of the third party's interests. Because vendors and their

customers often have an identity of interests, "vendors ...

have been uniformly permitted to resist efforts at restricting

their operations by acting as advocates of the rights of third

parties who seek access to their market or function." Craig,

429 U.S. at 195. For example, in Craig, the court held that a

beer vendor could challenge, on behalf of males between the

ages of 18 and 21, a law prohibiting the sale of beer with 3.2%

alcohol to males under 21 and females under 18, because "the

threatened imposition of governmental sanctions might deter

... vendors from selling beer to young males, thereby ensur-

ing that 'enforcement of the challenged restriction against the

[vendor] would result indirectly in the violation of third

parties' rights.' " 429 U.S. at 195 (quoting Warth v. Seldin,

422 U.S. 490, 510 (1975)); see also Carey v. Population Servs.

Int'l, 431 U.S. 678, 683 (1977) (finding that corporation that

sold nonmedical contraceptives by mail order had standing to

challenge a law prohibiting the sale of its products "not only

in its own right[,] but also on behalf of its potential custom-

ers").

This case differs somewhat from Craig and other like cases,

because Lepelletier is not threatened with the imposition of

sanctions for violating the law at issue. That is, he does not

face the possibility of prosecution for illegally selling to third

parties. But this circuit, looking to Craig and its progeny,

has found that a vendor who is prevented from selling his

product to third parties by any unlawful regulation, may

challenge that regulation "on the basis of 'the vendor-vendee

relationship alone.' " National Cottonseed Prods. Ass'n v.

Brock, 825 F.2d 482, 492 (D.C. Cir. 1987) (quoting FAIC

Secs., Inc. v. United States, 768 F.2d 352, 361 (D.C. Cir.

1985)).

In FAIC Securities, an individual deposit broker and a

national trade association whose members included deposit

brokers challenged regulations that altered federal insurance

coverage of deposits from $100,000 per depositor, per finan-

cial institution to $100,000 per broker, per financial institution.

See 768 F.2d at 355-56. The brokers argued that these

regulations effectively put them out of business, and thus,

investors would be deprived of the benefits of using a broker

to place their deposits as advantageously as possible. Then-

Judge Scalia, writing for the court, found that the association

and the individual broker satisfied the jus tertii require-

ments, and therefore could properly challenge the regulations

at issue. See id. at 359-61. In so holding, the court specifi-

cally pointed out that the statute at issue did not make the

broker's sale unlawful, but:

[r]eliance upon [a distinction between those statutes that

made the proposed sale unlawful and those that did not]

would produce a rule under which the necessity of estab-

lishing the third-party vendee's inability to sue for viola-

tion of statute (or constitutional provision) X would de-

pend upon whether or not the plaintiff vendor's activities

were explicitly proscribed by statute Y. The logic that

might underlie such a rule is not immediately appar-

ent.... [Thus,] we feel constrained to follow the hold-

ings in Craig and Carey which base standing upon the

vendor-vendee relationship alone....

See id. at 360-61.

This holding was later followed in National Cottonseed, in

which 3M challenged the Occupational Safety and Health

Administration's ("OSHA") effectiveness rating of the dispos-

able respirator it manufactured. Although it was not unlaw-

ful for 3M to sell its respirator with a lower effectiveness

rating, it sought a higher rating, because filters with higher

ratings could be used in environments with higher dust

concentrations under OSHA regulations. It therefore argued

that its sales had been reduced as a result of the lower rating

given to disposable filters. OSHA argued that 3M did not

have standing to challenge its filter effectiveness ratings,

because the purchaser of the filter, not the manufacturer of

the filter, had to comply with OSHA regulations. The court

in National Cottonseed concluded that:

FAIC Securities continues to state law of the circuit,

binding upon us unless and until changed by the court

sitting en banc, or shown to be incorrect by instruction

from Higher Authority. If the FAIC Securities deposit

brokers' and depositors' interests are "two sides of the

same coin," so too are 3M's interest in selling the dispos-

able respirators it manufactures, and cotton processing

plant operators' interest in purchasing the respirators.

If the brokers had standing in FAIC Securities, then 3M

has standing here; no tenable distinction can be drawn

between the relationship of the litigant and third party in

the two cases. Following FAIC Securities, we are con-

strained to recognize 3M's standing on the basis of "the

vendor-vendee relationship alone."

825 F.2d at 491-92 (footnotes and citations omitted).

Here, much like the brokers in FAIC Securities who al-

leged that the unlawful change to federal insurance coverage

regulations would cause them business losses, Lepelletier

argues that he has been prevented from capitalizing on a

business opportunity, because the pre-amendment version of

s 1822(e) failed to provide proper notice to the depositors.

Moreover, in FAIC Securities, the brokers' objective of hav-

ing the same insurance coverage for deposits made with or

without the aid of a broker was consistent with the investors'

interest in using a broker to find the highest interest rates for

their deposits. Likewise, Lepelletier's "objective of achieving

publication of the names is consistent with the depositors'

interest in receiving notice of their unclaimed deposits before

they revert to FDIC." Lepelletier, 977 F. Supp. at 463.

Thus, although Lepelletier's interest does not correspond

exactly with the depositors' interests, i.e., the best notice for

the depositors may not make their names available to Lepel-

letier, jus tertii standing does not require a perfect match.

Accordingly, Lepelletier has satisfied the "close relation"

requirement of jus tertii standing based on his potential

vendor-vendee relationship with the depositors.

In sum, we find that Lepelletier has satisfied both the

Article III standing requirements, and the prudential jus

tertii standing requirements. He may therefore pursue a due

process claim in this case.

2.The Merits

Lepelletier argues that the single notice mailed to the last

known addresses of the depositors pursuant to the pre-

amendment version of s 1822(e) failed to satisfy due process

requirements. The District Court, relying on Mullane v.

Central Hanover Bank & Trust Co., 339 U.S. 306 (1950),

disagreed, finding that "the Constitution requires only that

the government take reasonable steps to notify depositors,

not all possible steps or the very best ones." Lepelletier, 977

F. Supp. at 464. It held that Lepelletier had failed to show

that the notice provided by the FDIC was "unreasonable

under the circumstances," and, accordingly, granted summary

judgment in favor of the FDIC on this claim. Id.

When presented with a due process challenge, a court must

determine, first, whether there has been a deprivation of a

property interest, and, if so, what process is due. See Mor-

rissey v. Brewer, 408 U.S. 471, 481 (1972); Propert v. District

of Columbia, 948 F.2d 1327, 1331 (D.C. Cir. 1991). It is clear

that the depositors have a protected property interest in their

unclaimed funds. Thus, the only question here is whether

they have received the process they are due. As mentioned

above, the District Court found that the due process rights of

the depositors had not been violated, because they had re-

ceived adequate notice. However, in the course of its deci-

sion, the District Court did not cite the seminal due process

case of Mathews v. Eldridge, 424 U.S. 319 (1976), nor did it

consider the three factors articulated in that case:

First, the private interest that will be affected by the

official action; second, the risk of an erroneous depriva-

tion of such interest through the procedures used, and

the probable value, if any, of additional or substitute

procedural safeguards; and finally, the Government's

interest, including the function involved and the fiscal

and administrative burdens that the additional or substi-

tute procedural requirement would entail.

424 U.S. at 335.

We have previously noted that "[t]he precise form of notice

... depends upon a balancing of the competing public and

private interests involved, as defined by the now familiar

Mathews factors." Propert, 948 F.2d at 1332. We find,

therefore, that the District Court erred by failing to address

the Mathews factors when determining that the FDIC had

provided adequate notice to the depositors. Accordingly, we

remand this portion of the case to the District Court so that it

may properly gather evidence related to the Mathews factors

and then weigh those factors.

We note that, on remand, the District Court is free to

consider the amount of money in each account, as well as the

incremental cost of additional notice, in determining what

process is due. It may also find, after balancing the factors,

that depositors with larger amounts of unclaimed funds are

entitled to additional notice procedures not necessarily due to

depositors with smaller amounts. However, because the in-

quiries necessary to resolve this claim are very fact-specific,

we leave it to the District Court to determine at what

threshold(s) additional notification efforts, if any, are re-

quired. Finally, we note that, although the FDIC has re-

peatedly pointed out that "[a]lmost 99.9% of the deposits were

claimed," e.g., Brief for Appellees at 17, this fact is simply

irrelevant to a determination of what notice is due to those

with unclaimed deposits.

B.FOIA Claim

Lepelletier also argues that the District Court erred in

finding that the FDIC did not violate FOIA when it refused

to release the names of living individuals with unclaimed

deposits. The FDIC refused to release the names of deposi-

tors under Exemption 6 of FOIA, which allows the FDIC to

withhold "personnel and medical files and similar files the

disclosure of which would constitute a clearly unwarranted

invasion of personal privacy." 5 U.S.C. s 552(b)(6) (1994).

The Supreme Court has interpreted the phrase "similar files"

to include all information that applies to a particular individu-

al. See United States Dep't of State v. Washington Post Co.,

456 U.S. 595, 602 (1982). It has also found that "[i]ncorporat-

ed in the 'clearly unwarranted' language is the requirement

for ... [a] 'balancing of interests between the protection of an

individual's private affairs from unnecessary public scrutiny,

and the preservation of the public's right to governmental

information.' " United States Dep't of Defense Dep't of Mili-

tary Affairs v. FLRA, 964 F.2d 26, 29 (D.C. Cir. 1992)

(quoting Department of Air Force v. Rose, 425 U.S. 352, 372

(1976)). Thus, a court must weigh the "privacy interest in

non-disclosure against the public interest in the release of the

records in order to determine whether, on balance, the disclo-

sure would work a clearly unwarranted invasion of personal

privacy." National Ass'n of Retired Fed. Employees v. Hor-

ner, 879 F.2d 873, 874 (D.C. Cir. 1989) ("NARFE"); see also

Department of Defense Dep't of Military Affairs, 964 F.2d at

29 ("[A]gencies and reviewing courts consider whether disclo-

sure of the requested information would result in an invasion

of privacy, and if so, the extent and seriousness of that

invasion, as well as the extent to which disclosure would serve

the public interest."). We begin with the public interest in

disclosure of the depositors' names.

"[T]he only relevant public interest in the FOIA balancing

analysis [is] the extent to which disclosure of the information

sought would 'she[d] light on an agency's performance of its

statutory duties' or otherwise let citizens know 'what their

government is up to.' " United States Dep't of Defense v.

FLRA, 510 U.S. 487, 497 (1994). In this case, Lepelletier has

argued that, because "the FDIC, itself, gets to keep any

unclaimed funds after the termination of the receivership(s),"

keeping the funds without adequately notifying the depositors

constitutes "criminal and civil conversion by the FDIC."

Brief of the Appellant at 18. Thus, Lepelletier's argument

appears to be that, if the FDIC provides the information he

seeks, the public will know how much money the FDIC will

recover once the receiverships are terminated.

We find no merit to this argument. In NARFE, this court

was asked to decide whether there was any public interest in

releasing to the National Association of Retired Federal

Employees ("NARFE"), the names and addresses of those

people receiving annuity payments from the Office of Person-

nel Management ("OPM"). See 879 F.2d at 878-79. In

finding that it did not, the court held that:

[t]he lesson for this case ... is that unless the public

would learn something directly about the workings of the

Government by knowing the names and addresses of its

annuitants, their disclosure is not affected with the public

interest. While we can see how the percentage of the

federal budget devoted to annuities, the amount of the

benefit an average annuitant receives, or other aggregate

data might be of public interest, disclosure of those facts

would not be entailed in (and could be accomplished

without) releasing the records NARFE seeks here. The

simple fact is that those records say nothing of signifi-

cance about "what the[ ] Government is up to."

879 F.2d at 879.

This case falls within the logic of NARFE. The FDIC

provided the amounts of all unclaimed deposits to Lepelletier

in December 1995. As a result, Lepelletier already knows

the total amount that remains unclaimed (approximately $3.5

million), as well as the amount in each account that remains

unclaimed. What he seeks here are the names associated

with those accounts. But those names will not shed light on

the FDIC's performance of its duties, because they do not

speak to the issue of how much money will be recovered by

the FDIC upon termination of the receiverships. Nor do the

names speak to what the agency has done in preparing for

the termination of these receiverships. Accordingly, there is

no clearly discernible public interest in releasing the names

associated with the unclaimed deposits, because such a re-

lease would not inform the public of what the FDIC is "up

to."

The next question, then, is whether there is a privacy

interest in the release of the depositors' names. The District

Court found that the depositors had a privacy interest in the

information sought by Lepelletier, albeit a slight one. Lepel-

letier, 977 F. Supp. at 461. It then held that, because there

was no public interest and a slight privacy interest, it did not

need to " 'linger over the balance; something, even a modest

privacy interest, outweighs nothing ... every time.' " Id.

(quoting NARFE, 879 F.2d at 879).

We agree with the District Court that there appears to be

some privacy interest at stake in this case. Indeed, this court

has often held that individuals have a privacy interest in the

nondisclosure of their names and addresses in connection

with financial information. See Painting and Drywall, 936

F.2d at 1302-03 (seeking release of name, address, and wage

data); NARFE, 879 F.2d at 875-76 (requesting release of

name, address, and annuitant status). Even more important-

ly, this court has been particularly concerned when the

information may be used for solicitation purposes. See

Painting and Drywall, 936 F.2d at 1303 ("[T]he workers

would experience a significant diminution in their expecta-

tions of privacy because that same information would also

have to be provided, for example, to creditors, salesmen, and

union organizers. The dissemination of this sort of informa-

tion about private citizens 'is not what the framers of the

FOIA had in mind.' ") (citation omitted); NARFE, 879 F.2d

at 876 (" 'When it becomes a matter of public knowledge that

someone is owed a substantial sum of money, that individual

may become the target for those who would like to secure a

share of that sum by means scrupulous or otherwise.' ")

(quoting Aronson v. HUD, 822 F.2d 182, 186 (1st Cir. 1987)).

However, this case is distinguishable from the court's previ-

ous cases in an important respect: the individuals in those

cases had no clear interest in the disclosure of their names

and addresses. In other words, unlike the instant case, the

individuals in the aforecited cases had no clear prospect of

securing a direct benefit by virtue of disclosure. In Painting

and Drywall, a nonprofit cooperative sought the disclosure of

the names, addresses, and social security numbers associated

with those who had been employed by three Department of

Housing and Urban Development-assisted projects to ensure

compliance with "laws affecting public-works projects in Cali-

fornia." 936 F.2d at 1301. The court found that the disclo-

sure of this information "would constitute a substantial inva-

sion of privacy," because the "same information would have to

be provided, for example, to creditors, salesmen, and union

organizers." Id. at 1303. And the employees in Painting

and Drywall had no clear interest in the release of this

information; the only possible benefit to them was "that the

information would facilitate investigation of government ef-

forts to enforce" the laws. Id.

Likewise, in NARFE the court found that the privacy

interest associated with the release of the names and address-

es of those former federal employees who received annuity

payments was "significant," because there was "little reason

to doubt that the barrage of solicitations predicted will in fact

arrive--in the mail, over the telephone, and at the front door

of the listed annuitants." 879 F.2d at 878. And the annui-

tants there did not have a corresponding clear interest in the

release of their names. The only benefit that they could

enjoy from such a release was the possible receipt of informa-

tion about NARFE, an organization that sought "to protect

and to further the interests of individuals eligible to partici-

pate in the federal Government's civilian retirement system."

Id. at 874. This benefit falls far short of the clear and direct

interest that the depositors have at stake in this case--

namely, learning of their personal bank deposits and recover-

ing them.

Therefore, although this court has stated that a slight

privacy interest outweighs no public interest, see NARFE,

879 F.2d at 879, this formulation is inapposite here, i.e., where

the individuals whom the government seeks to protect have a

clear interest in the release of the requested information.

Indeed, for individuals with sizeable accounts, the interest in

disclosure may be substantial. Accordingly, we hold that the

FOIA analysis under Exemption 6 must include consideration

of any interest the individual might have in the release of the

information, particularly when the individuals who are "pro-

tected" under this exemption are likely unaware of the infor-

mation that could benefit them.

In this case, a number of the depositors have a significant

pecuniary interest at stake, and disclosure of their names will

greatly increase the probability that they (or their heirs) will

be reunited with their funds. Thus, it is overly paternalistic

to insist upon protecting an individual's privacy interest when

there is good reason to believe that he or she would rather

have both the publicity and the money than have neither.

Accordingly, the list-of-names information sought by Lepelle-

tier may be released under FOIA. However, because we

remain particularly concerned with the possibility of invading

the privacy of the depositors, and because there is no discer-

nible public interest in disclosure, we believe any release of

the depositors' names must be limited in two significant ways.

First, any release of names associated with the unclaimed

deposits should not be matched with the amount owed to that

individual. We believe that this "unmatched" list constitutes

a lesser privacy invasion than a matched one. Therefore, any

list that is released under FOIA may only contain the names

of those with unclaimed deposits, and may not provide the

corresponding unclaimed amount. (The FDIC has already

released a list containing the amounts of each deposit; thus,

in the end, it is possible that there will be two separate lists:

one of names, and one of amounts.).

Second, on remand, the District Court must determine the

dollar amount below which an individual's privacy interest

should be deemed to outweigh his or her interest in discover-

ing his or her money, such that the names of depositors with

lesser amounts may be redacted. This will serve to prevent

those with smaller deposits from unnecessary solicitations,

while still allowing those with larger amounts to learn of their

interest, albeit at the price of a few unwanted phone calls and

letters.

There is one small caveat to this final step, however. If the

District Court determines on remand that the depositors

should receive additional notice from the FDIC under the due

process clause, it may very well find that the interest of some

(or perhaps all) depositors in learning of the funds available

to them has been served. If so, the court must take this fact

into account. Thus, if the District Court requires additional

notice procedures under the due process clause, the balancing

under FOIA is likely to favor nondisclosure for at least some

depositors, because they will have no interest in receiving the

same information repeatedly. On the other hand, if the

District Court finds that additional notice is not required

under Mathews, it may find that the interest of depositors in

learning of their money, at least above some minimum

amount, outweighs their privacy interest.

We therefore remand this portion of the case to the District

Court to determine if the depositors' interest in learning of

their money outweighs their privacy interest. If so, the court

must determine if there is some minimum threshold amount

below which a depositor's privacy outweighs his interest in

that money. The District Court may then properly require

the release of those names, without the corresponding

amounts, associated with accounts that fall above the thresh-

old level.

C.Lepelletier's Contract-Related Claims

Finally, Lepelletier also appeals the dismissal of his

contract-related claims. This court reviews the dismissal of

Lepelletier's claims de novo, accepting all of his factual

allegations as true and drawing all inferences in his favor.

See Systems Council EM-3 v. AT&T Corp., 159 F.3d 1376,

1378 (D.C. Cir. 1998). We find that the District Court did not

err in dismissing these claims, because Lepelletier failed to

set forth any facts in his complaint upon which relief could be

granted. See Fed. R. Civ. P. 12(b)(6).

Under the agreement Lepelletier entered into with the

FDIC, Lepelletier was entitled to recover ten percent of any

funds recovered by the FDIC that he had identified. See

Agreement, reprinted in J.A. 15. However, although Lepelle-

tier asserts in his complaint that the FDIC breached its

agreement with him, he fails to point to any funds identified

by him that were recovered by the FDIC. Thus, there are no

grounds upon which Lepelletier may claim breach of contract.

Lepelletier also alleges that the FDIC "falsely induc[ed

him into] 'settlement' negotiations." Complaint p 49, reprint-

ed in J.A. 11. However, Lepelletier has not pointed to any

misconduct on the part of the FDIC that would give rise to a

cause of action. See id. pp 27-46, reprinted in J.A. 8-11.

Accordingly, we affirm the District Court's dismissal of Le-

pelletier's contract-related claims.

III. Conclusion

For the foregoing reasons, we affirm the District Court's

dismissal of Lepelletier's contract-related claims, but we re-

verse in part and remand Lepelletier's due process and FOIA

claims to the District Court.

So ordered.