refusing to adopt interpretation that “would create a gaping hole in the overall scheme of the Privacy Act”; noting that “it is inconceivable that Congress intended to allow disclosure pursuant to every private litigant’s whims”
How later courts described this case
- refusing to adopt interpretation that “would create a gaping hole in the overall scheme of the Privacy Act”; noting that “it is inconceivable that Congress intended to allow disclosure pursuant to every private litigant’s whims”
- noting “rigorous requirements that Congress chose to impose on the disclosure process by means of the Privacy Act”
- basing holding on analysis of similar language in Fair Credit Reporting Act and similar statutes, and on purposes of Privacy Act
- “ ‘It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.’ ” (quoting Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976))
Written by the judges who cited it.
The opinion
STARR, Circuit Judge,
concurring in the judgment.
This case involves considerably less than meets the eye. It also stands as eloquent testimony to the imperfections and fallibility of the litigation process. Today we hold that the District Court fell into legal error when it failed to recognize the superseding effects of the 1976 amendment to the veterans disclosure provisions that incorporated the Privacy Act. Yet, in fairness to the District Court, neither Mr. Doe’s counsel nor counsel for the Government had unearthed this important alteration to the governing statutory law during the sojourn of this case in the trial court; to the contrary, the parties litigated the case below without ever recognizing the applicability of the Privacy Act. Even on appeal, the parties continued to struggle mightily over issues of statutory construction that, unbeknown to them, were irrelevant to the case. It was only with the arrival of a very helpful amicus brief in this court that the light suddenly dawned, and the parties found themselves within an altogether different legal framework. Suffice it to say that the District Court may fully be excused for not doing the parties’ legal research for them. 1
As to the significance of the Privacy Act’s application to the veterans disclosure statute, I concur heartily in the court’s judgment that a grand jury subpoena sim-pliciter does not satisfy the more rigorous requirements that Congress chose to impose on the disclosure process by means of the Privacy Act. I reach this conclusion, however, without repairing to the welter of decisional law arising under the Fair Credit Reporting Act. On that question, I would wait for another day. Our determination that this particular disclosure ran afoul of the Privacy Act’s strictures does indeed warrant a remand to the District Court for further consideration in light of the substantially altered legal landscape.
That being said, I would say no more. The court, however, sees fit to expound on sundry legal issues despite its recognition that on remand the plaintiff may very well be entitled to no relief at all. See, e.g., Maj.Op. at 86-87 & n. 24, 88 n. 26. In particular, I find this setting singularly inappropriate for an abstract discussion of novel constitutional rights of dubious applicability. 2
. The District Court may, however, have made the case more difficult than it need have been by refusing to rule on the Government’s request that the highly relevant materials contained in the sealed affidavit be disclosed. See Maj. Op. at 91.
. See Maj. Op. at 90 (recognizing well-established principle that a court should not consider constitutional arguments unless it has already determined that case cannot be decided on non-constitutional grounds); cf. J.P. v. DeSanti, 653 F.2d 1080, 1090 (6th Cir.1981) (holding that "the Constitution does not encompass a general right to nondisclosure of private information"). But see Maj. Op. at 80 n. 14 (noting in abstract the possibility that “some heightened fourth amendment standard” may apply under certain ill-defined circumstances); id. at 89-90 & n. 27 (discussing possible applicability of the fourth amendment and the "constitutional right to privacy").