Orekoya v. Mooney

United States Court of Appeals
For the First Circuit

No. 02-1306

SUNDAY DIXON OREKOYA,
Plaintiff, Appellant,

v.

JAMES MOONEY; UNITED STATES SECRET SERVICE,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Morris E. Lasker,* Senior U.S. District Judge]

Before

Lynch, Circuit Judge,
Campbell, Senior Circuit Judge,
and Howard, Circuit Judge.

Gordon M. Jones, III with whom Robert P. Sherman,
Hutchins, Wheeler & Dittmar, John Reinstein, and ACLU of
Massachusetts were on brief, for appellant.

Barbara Healy Smith, Assistant U.S. Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellees.

May 15, 2003

*
Of the Southern District of New York, sitting by
designation.
 LYNCH, Circuit Judge. Sunday Dixon Orekoya is a black

Nigerian national who brought suit asserting he was the victim of

racial and national origin discrimination by an overzealous United

States Secret Service agent who was investigating financial fraud

crimes by Nigerian nationals. Orekoya asserted that this agent and

another violated the Privacy Act of 1974, 5 U.S.C. § 552a (2000),

in two instances. In 1989, Agent Melissa Walsh obtained and then

released to Orekoya's employer, the Bank of New England,

information about Orekoya (which turned out to be inaccurate) from

the files of the Immigration and Naturalization Service. In 1990,

Agent James Mooney is alleged to have released to the employer

information from a Federal Bureau of Investigation record. Orekoya

also asserts that Agent Mooney, through these and other actions,

violated his Fifth Amendment rights.

The district court dismissed his Privacy Act claims after

a bench trial. A jury had earlier rejected his claims under 42

U.S.C. § 1981 (2000). In this appeal, Orekoya argues that the jury

was not properly instructed on his Fifth Amendment claims of

discrimination, brought under the Bivens doctrine. See Bivens v.

Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

(1971). He also attacks the district court's Privacy Act

conclusions, claiming errors of fact and law. On the Bivens jury

instruction claim, we affirm. On the Privacy Act claims, we

affirm, holding that: (1) the Act permits an award of emotional

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distress damages, subject to firm requirements for proof of

emotional distress; (2) plaintiff's proof of emotional distress

damages was insufficient; and (3) an agency may not immunize itself

from liability for its unauthorized disclosure on the grounds that

the records disclosed did not come from its files but were obtained

from a system of records maintained by another agency.

I. Background

A. Factual Background

Orekoya was born in Lagos, Nigeria in 1960 and came to

the United States to attend college in 1983. He attended Roxbury

Community College and took courses at Northeastern University and

the New England Banking Institute. In 1986, Orekoya began working

for the Bank of New England (BNE) as a teller. In 1988, he was

promoted to a position as a Fund Accountant in the commercial

lending department and transferred to BNE's headquarters.

In 1989, the United States Secret Service (USSS) and

other federal agencies set up task forces in a number of cities to

combat a rise in crime by Nigerian nationals. The Immigration and

Naturalization Service (INS) estimated that a majority of the

Nigerian nationals in the United States were involved in criminal

activity. This activity revolved primarily around financial

transaction and insurance fraud, and a typical suspect worked in a

bank.

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 1. James Mooney

On January 31, 1989, Orekoya loaned his car to Isaac

Olopade, another Nigerian national. Olopade was stopped by the

Providence Police for speeding. He was the subject of a USSS

credit card investigation, and so the police called the Providence

office of the USSS to request an agent's presence at the scene of

the traffic stop. James Mooney, an agent specializing in

counterfeiting and fraud investigations who knew Olopade, arrived.

He discovered that the car belonged to "Sunday Dixon." This name

was not unfamiliar to Mooney; a car with a license plate registered

in that name had previously appeared at businesses subject to

investigation and surveillance by the USSS.

In March 1990, Mooney was contacted by the Rhode Island

police, who were investigating an allegation that Orekoya had raped

a woman in Cranston. The woman named "Sunday Dixon" as the rapist

and identified Orekoya's photo. Mooney discovered through the

owner of the apartment where the rape occurred that Orekoya worked

for BNE. Mooney then contacted BNE and discussed Orekoya with

Christopher Carney, Director of Corporate Security for BNE. Mooney

informed Carney that the USSS was conducting an investigation into

the use of BNE credit cards in a fraud scheme involving stolen

rental cars. Orekoya later claimed that Mooney also told Carney

about the rape investigation and Orekoya's prior arrest for

robbery, information supposedly derived from the Federal Bureau of

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Investigation (FBI), and that Mooney asked for information about

Orekoya's bank accounts.

On March 9, 1990, Orekoya was arrested at BNE by the

Boston Police. Mooney interrogated him about the sexual assault

and the involvement of Nigerians in credit card fraud. He also

took a picture of Orekoya at the police station and kept it.

Orekoya claimed that Mooney periodically showed the picture around

the USSS office.

As a result of his arrest, Orekoya was suspended from

work without pay. On June 25, 1991, the rape case was dismissed

because the victim would not testify in court. That month Orekoya

attempted to regain his job but was told that the position had been

eliminated.

2. Melissa Walsh

In 1989, BNE began conducting an internal investigation

into overdraft activity in Orekoya's personal bank account. In the

course of the investigation, Carney noticed that Orekoya's passport

had expired. On June 27, 1989, Carney contacted the USSS and asked

Melissa Walsh, an agent, about Orekoya's immigration status. She

called Carney back the next day and reported that she learned from

"Immigration" that Orekoya was present in the United States

illegally. When a BNE official contacted the INS, it refused to

release any information over the phone.

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 Because Orekoya had lost his green card, he could not

produce any legal documents proving his immigration status. As a

result, on July 24, 1989, BNE temporarily suspended Orekoya, with

pay. He went to the Boston INS office and returned to BNE the next

day with a stamp on his passport proving eligibility. He was

immediately given back his position.

B. Procedural History

Orekoya filed a complaint against USSS and Mooney. He

claimed that he had been the victim of discrimination and alleged

violations of the Fourth, Fifth, and Ninth Amendments, 42 U.S.C. §§

1981, 1983, and the Massachusetts Civil Rights Act, Mass. Gen. Laws

ch. 12, § 11I (2003). He also claimed that the USSS had violated

the Privacy Act, 5 U.S.C. § 552a, and the Financial Privacy Act, 12

U.S.C. § 3417 (2000). Finally, he alleged counts of slander and

abuse of process against Mooney.2

Orekoya filed his first complaint in 1992. He filed an

amended complaint in early 1996. Since that time, for a variety of

reasons including illnesses and recusals, the case has been heard

by no less than four federal district court judges. It has been

over a decade since the first complaint was filed. We briefly

navigate the contours of the procedural history, setting aside the

niceties until they are relevant to the discussion.

2
Orekoya did not pursue the abuse of process claim.

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 In a summary judgment ruling in 1997, the district court

dismissed the Fourth, Fifth, and Ninth Amendment claims and the

§ 1983 claim. It dismissed the Fifth and Ninth Amendment claims

against Mooney based on a finding that he was entitled to qualified

immunity.

In 1999, the district court granted summary judgment to

the defendants for any remaining Fourth, Fifth, and Ninth Amendment

claims. It also dismissed the Massachusetts Civil Rights Act and

slander claims. After this order, all that remained were the §

1981 claim and the Privacy Act and Financial Privacy Act claims.

The court also made clear that the § 1981 claim could encompass

discrimination based on ethnicity and ancestry, but that Orekoya

could not bring a separate claim for discrimination based on

national origin under Bivens.

The § 1981 claim was tried in front of a jury in March

2000. Orekoya asked that the court submit a Bivens claim for

national origin discrimination to the jury as well as the § 1981

claim for discrimination for race or ethnicity. The request was

denied. On March 22, 2000, the jury found for the defendants.

On March 24, 2000 the district court held a bench trial.

On February 15, 2002, the district court found for the defendants

on the Privacy Act claim.1 It found that Walsh's disclosure to BNE

1
Orekoya voluntarily dismissed the Financial Privacy Act
claim after trial.

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did not violate the Act because it did not involve the USSS's own

records system, which does not maintain records regarding

citizenship, and because Orekoya did not prove that he suffered

adverse effects. It found that the Privacy Act did not allow

recovery for emotional damages or other non-quantifiable injuries,

and that in any case Orekoya had not proven emotional distress.

Plaintiff timely appealed both the refusal of the Bivens

jury instruction and the district court's Privacy Act claims.

II. Discussion

A. The Privacy Act, 5 U.S.C. § 552a(b)

When reviewing the decisions of the district court in a

bench trial, we review the court's legal determinations de novo and

its factual findings for clear error. N.E. Drilling v. Inner Space

Servs., Inc., 243 F.3d 25, 37 (1st Cir. 2001).

In the Privacy Act of 1974, Congress imposed restrictions

on the ability of government agencies to disclose certain

information on individuals which they had maintained in a system of

records. See 5 U.S.C. § 552a(b). Since then, Congress has amended

the statute several times, most recently in 1999, taking further

incremental steps to protect the privacy of individuals. This

court has had very few occasions to interpret or apply the Act.

See, e.g., Fed. Labor Relations Auth. v. U.S. Dep't of the Navy,

941 F.2d 49 (1st Cir. 1991); Beaulieu v. IRS, 865 F.2d 1351 (1st

Cir. 1989); Usher v. Sec'y of HHS, 721 F.2d 854 (1st Cir. 1983).

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 At issue here is the bar on unauthorized disclosures:

No agency shall disclose any record which is contained in
a system of records by any means of communication to any
person, or to another agency, except pursuant to a
written request by, or with the prior written consent of,
the individual to whom the record pertains . . . .

5 U.S.C. § 552a(b). If an agency, acting intentionally or

willfully, violates this command "in such a way as to have an

adverse effect on an individual," Congress has authorized the

filing of a civil action for damages by the affected individual.

Id. § 552a(g)(1). Both "actual damages sustained by the

individual" and statutory minimum damages of $1,000 are available,

along with attorney's fees. Id. § 522a(g)(4).

In sum, the key elements of a cause of action under the

Privacy Act for damages for disclosure are:

(1) agency disclosure (by any means of communication)
(2) to an individual or another agency
(3) of a "record" contained "in a system of records"
(4) which is unauthorized by the individual, and
(5) which is not within an exception
(6) and has an "adverse effect" on the individual (a
requirement which contains two components: (i) an
adverse effect standing component (ii) a causal
nexus between the disclosure and the adverse
effect)
(7) and that the agency action be in a manner which was
"intentional" or "willful," which means proof
somewhat greater than gross negligence.

See 5 U.S.C. § 552a; Quinn v. Stone, 978 F.2d 126, 131 (3d Cir.

1992); Waters v. Thornburgh, 888 F.2d 870, 872 (D.C. Cir. 1989).

The Privacy Act prohibits more than dissemination of records

themselves, but also “nonconsensual disclosure of any

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information that has been retrieved from a protected record.”

Bartel v. FAA, 725 F.2d 1403, 1408 (D.C. Cir. 1984).2

The district court entered summary judgment on multiple

grounds on the two sets of alleged violations -- the 1989 actions

of Agent Walsh and the 1990 actions of Agent Mooney. We discuss

only three of those grounds. The district court held (1) that

unauthorized disclosure from one agency's system of records by

another agency to a third party is not a violation of the Act; (2)

that mental or emotional distress are not encompassed within the

phrase "actual damages" under the Act; and (3) that plaintiff's

proof failed to permit a reasonable factfinder to find any

compensable emotional distress caused by the alleged violations.

We disagree with the first two grounds. But we do agree as to the

third ground and so ultimately affirm the summary judgment.

1. Disclosure and System of Records

The district dismissed Orekoya’s claims concerning Agent

Walsh's disclosure on the basis that USSS did not maintain a system

of records concerning immigration status and Walsh therefore did

not rely on any USSS record about plaintiff's citizenship. The

plaintiff alleges that Agent Walsh called the INS and obtained

2
For a disclosure to be a violation of the Act, the
information must have been obtained from a protected record;
disclosing information that happens to be contained in a protected
record is not covered by the Privacy Act if the information is
obtained independently. Olberding v. United States Dep’t of Def.,
709 F.2d 621, 622 (8th Cir. 1983).

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information from the INS system of records, and then disclosed the

information to BNE, Orekoya's employer, without Orekoya's consent.

Similarly, as to USSS Agent Mooney, the court concluded that if he

disclosed to BNE information from FBI files about Orekoya's prior

arrest for unarmed robbery, that was not an actionable disclosure.

We hold that the unauthorized disclosure by one agency of

protected information obtained from a record in another agency’s

system is a prohibited disclosure under the Act, unless the

disclosure falls within the statutory exceptions. We stress that

the issue is not the disclosure by one agency to another, but the

disclosure by the second agency to a member of the public. We

reject the district court's reading on the grounds that it is

contrary to the plain language of § 552a(b) and would defeat the

purposes of the Act. The statute says that no agency shall

disclose any record which is contained in "a system of records."

5 U.S.C. § 552a(b) (emphasis added). A "system of records" is

defined as a group of any records "under the control of any

agency." Id. § 552a(a)(5). The statute also prohibits unauthorized

disclosure "to another agency." Id. The language does not support

the view that an agency may immunize itself from liability by

obtaining information from a different agency's system of records

and then saying its further unauthorized disclosure is protected

because its own system of records was not the original source.

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Such a reading would create a tremendous loophole in privacy

protection, one surely not intended by Congress.

Even if the initial disclosure by an agency from its own

system of records (here the INS) to another agency (here the USSS)

were within one of the exceptions, see, e.g., § 552a(b)(7)

(permitting disclosures between agencies “for a civil or criminal

law enforcement activity” upon a written request), that would not

permit the recipient agency to then make an unauthorized disclosure

to a third party if the latter disclosure did not itself fall

within an exception. The Ninth Circuit reached a similar

conclusion in Wilborn v. Department of Health & Human Services, 49

F.3d 597, 601 (9th Cir. 1994).

2. Availability of Emotional Distress Damages Under
the Privacy Act

The district court ruled as a matter of law that no

recovery is available under the Privacy Act for emotional distress

damages. The question presented is not whether out-of-pocket

pecuniary costs occasioned by emotional distress, such as payments

to therapists for treatment, are "actual damages"; they surely are.

The government agrees that such losses are "actual damages" within

the meaning of the statute, but argues that damages are restricted

to only such out-of-pocket expenses.

What appears to be a simple question is instead a

complicated series of questions. The Privacy Act provides:

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 (4) In any suit brought under the provisions of
subsection (g)(1)(C) or (D) of this section in which the
court determines that the agency acted in a manner which
was intentional or willful, the United States shall be
liable to the individual in an amount equal to the sum of
--
(A) actual damages sustained by the individual as a
result of the refusal or failure, but in no case
shall a person entitled to recovery receive less
than the sum of $1,000; and
(B) the costs of the action together with
reasonable attorney fees as determined by the
court.

5 U.S.C. § 552a(g)(4). This in turn raises a series of questions

concerned with the relationship between the statutory requirement

that there be "an adverse effect on an individual," id. §

552a(g)(1)(D), the "actual damages" requirement, id. §

552a(g)(4)(A), and the $1,000 statutory damages provision for a

person "entitled to recovery," id.

First is the question of whether an individual must show

merely an adverse effect to receive $1,000 in statutory damages, or

whether he must also show actual damages in order to receive even

statutory damages. The statutory "adverse effect" requirement, id.

§ 552a(g)(1)(D), is generally viewed as a standing requirement and

a causation requirement which enables an individual to bring a

civil action to enforce civil remedies. Quinn, 978 F.2d at 135.

If showing an adverse effect is sufficient to get $1,000 statutory

damages, then the initial question is whether provable emotional

distress constitutes an adverse effect. Five circuits have held

that an allegation of emotional distress was sufficient to show

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adverse effect, and that a plaintiff asserting emotional distress

could recover at least $1,000: the Third Circuit, see id. at 135;

the Fifth Circuit, Johnson v. IRS, 700 F.2d 971, 976-77 (5th Cir.

1983); the Tenth Circuit, see Parks v. IRS, 618 F.2d 677, 682-83

(10th Cir. 1980); the Eleventh Circuit, see Fitzpatrick v. IRS, 665

F.2d 327, 331 & n.7 (11th Cir. 1982); and the D.C. Circuit, see

Albright v. United States, 732 F.2d 181, 186 (D.C. Cir. 1984).

Whether under "actual damages" the plaintiff could recover more

than statutory damages is another question for this group of

courts. One circuit, the Fourth, over a dissent, has held that an

individual must suffer "actual damages" in order to be considered

"a person entitled to recovery" and thus eligible for the statutory

minimum damages of $1,000. Doe v. Chao, 306 F.3d 170, 177 (4th

Cir. 2002). That court agreed that an adverse effect may be shown

by emotional distress, but disagreed that an adverse effect is

sufficient to obtain emotional distress statutory damages, while

acknowledging the issue to be close.3 Id. at 177-79 & 180 n.6.

Inherent in these cases is an analysis that Congress would not

have granted standing to pursue an action for civil remedies to

those who suffered an adverse effect caused by an intentional or

willful violation and then afforded no remedy at all for the

adverse effect. Such a result, the reasoning goes, would be belied

3
The Sixth Circuit in Hudson v. Reno, 130 F.3d 1193, 1207 &
n.11 (6th Cir. 1997), addressed only the actual damages issue, not
the statutory damages issue.

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by the language that "in no case shall a person entitled to

recovery receive less than the sum of $1000." 5 U.S.C. §

552a(g)(4)(A). Such a reading is also supported by the legislative

history, which shows that the phrase "adverse effect" is drawn from

the remedial section of the House bill and is consonant with the

remedial section of the Senate bill, which refers to "aggrieved

persons." See Parks, 618 F.2d at 682-83 & n.2.

As explained by the dissent in Doe, "the meaning of 'adverse

effect' in subsection(g)(1)(D) is both distinct from and broader

than the meaning of 'actual damages' in subsection (g)(4)(A)." 306

F.3d at 186 (Michael, J., concurring in part and dissenting in

part). This is also how the Third Circuit has interpreted the

statute. Quinn, 978 F.2d at 135 n.15. As a result, proof that

there is an adverse effect may not be sufficient to prove actual

damages.

We agree with the dissent in Doe that the most natural and

reasonable reading of the statute is that statutory damages, if not

actual damages, are available to individuals who suffer adverse

effects from intentional and willful violations of the act and that

provable emotional distress may constitute an adverse effect. The

statute provides that a "person entitled to recovery" shall receive

at least statutory damages of $1,000. 5 U.S.C. § 552a(g)(4)(A).

We join the rule adopted by the majority of circuits that have

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addressed this issue,4 as described by the dissent in Doe, 306 F.3d

at 189. That is the interpretation adopted by OMB, the agency

responsible for implementing the Act. See OMB Privacy Act

Guidelines, 40 Fed. Reg. 28,949, 28,970 (July 9, 1975). It is also

the most consistent with the legislative history described in

Parks, 618 F.2d at 682-83. Indeed, even the seminal Eleventh

Circuit case which rejected emotional distress damages as actual

damages found that emotional distress is an adverse effect for

which statutory damages are available. Fitzpatrick, 665 F.2d at

331 & n.7.

This, though, leaves the question of whether non-

pecuniary emotional distress damages of more than $1,000 may be

recovered as actual damages. We describe but do not resolve the

question, which we consider to be a much closer one. Here, too,

the circuits disagree. The Fifth Circuit has held that emotional

distress damages should be included as "actual damages" under the

Privacy Act. See Johnson, 700 F.2d at 977. The Tenth Circuit has

not explicitly addressed this question but has interpreted the

Privacy Act as borrowing from the common law tort of invasion of

privacy, where "mental distress or embarrassment would be a natural

and probable consequence of such an invasion." Parks, 618 F.2d at

683. The Sixth and Eleventh Circuits have held that emotional

4
It is not clear from the government's brief whether it
agrees with or objects to this conclusion.

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distress damages are not recoverable under the Privacy Act as

"actual damages." Hudson v. Reno, 130 F.3d 1193, 1207 (6th Cir.

1997); Fitzpatrick, 665 F.2d at 331. The Fourth Circuit reserved

the question. Doe, 306 F.3d at 181. See generally F.Z. Lodge,

Note, Damages Under The Privacy Act of 1974: Compensation and

Deterrence, 52 Ford. L. Rev. 611 (1984).

The circuits which exclude emotional distress damages

from "actual damages" do so on the basis that what is involved is

a waiver of sovereign immunity and thus must be strictly read. "A

waiver of the Federal Government's sovereign immunity must be

unequivocally expressed in statutory text and will not be implied."

Lane v. Pena, 518 U.S. 187, 192 (1996) (internal citations

omitted); see United States v. Nordic Vill., Inc., 503 U.S. 30, 33-

34 (1992). In addition, "actual damages" does not have a generally

accepted meaning of including emotional distress damages. Such

damages are hard to police and may lead to broader waivers of

immunity than Congress intended when it used the phrase "actual

damages." These courts also rely on legislative history set forth

ably in Fitzpatrick, 665 F.2d at 330-31, although other cases point

to legislative history going the other way, see Johnson, 700 F.2d

at 975-77; Parks, 618 F.2d at 682; see also Lodge, supra, at 623

n.76.

The reading that "actual damages" include emotional

distress damages is based on several arguments, as follows.

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Congress clearly waived immunity as to "actual damages" in the

Privacy Act, which in turn was based in part on the Fair Credit

Reporting Act (FCRA), 15 U.S.C. §§ 1681-1681t (2000), which then

and since has usually been interpreted to include emotional

distress damages within "actual damages." See Cousin v. Trans

Union Corp., 246 F.3d 359, 371 (5th Cir. 2001).5 Admittedly, the

government is not the usual defendant in FCRA cases and so no issue

of sovereign immunity is necessarily involved in those cases.

Admittedly as well, there was not a large body of case law at the

time of enactment of the Privacy Act under the FCRA.

Further, under the common law, damages for emotional

distress were awardable for invasion of privacy or for public

disclosure of private facts. 62A Am. Jur. 2d Privacy § 106 (2002);

see Time, Inc. v. Hill, 385 U.S. 374, 386 n.9 (1967); Parks, 618

F.2d at 683; Restatement (Second) of Torts § 652H (1977).

5
See also Casella v. Equifax Credit Info. Servs., 56 F.3d
469, 474-75 (2d Cir. 1995); Guimond v. Trans Union Credit Info.
Co., 45 F.3d 1329, 1333 (9th Cir. 1995); Bryant v. TRW, Inc., 689
F.2d 72, 79 (6th Cir. 1982); Millstone v. O'Hanlon Reports, Inc.,
528 F.2d 829, 834-35 (8th Cir. 1976). Similarly, as noted in
Johnson, 700 F.2d at 983-84, the term "actual damages" in the Fair
Housing Act (FHA), 42 U.S.C. § 3612(c), has been interpreted by
some courts, before enactment of the Privacy Act and since, to
include damages for emotional distress as well as out-of-pocket
loss. See Banai v. Secretary, 102 F.3d 1203, 1207 (11th Cir.
1997); United States v. Balistrieri, 981 F.2d 916, 928 (7th Cir.
1992); United States v. Long, 537 F.2d 1151, 1154 (4th Cir. 1976);
Smith v. Anchor Bldg. Corp., 536 F.2d 231, 236 (8th Cir. 1976);
Steele v. Title Realty Co., 478 F.2d 380, 384 (10th Cir. 1973).

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 Finally, in civil rights actions under 42 U.S.C. § 1983,

the Supreme Court has permitted the award of emotional distress

damages, Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307-08

(1986), albeit subject to standards of proof, Carey v. Piphus, 435

U.S. 247, 264 n.20 (1978). As to the sensible limits point,

"Distress is a personal injury familiar to the law, customarily

proved by showing the nature and circumstances of the wrong and its

effect on the plaintiff." Id. at 263-64.

This circuit has no informative precedent under the

Privacy Act or the FCRA. One case includes emotional distress

damages within the meaning of the statutory term "actual damages."

In Fleet Mortgage Group, Inc. v. Kaneb, 196 F.3d 265 (1st Cir.

1999), we interpreted damages under 11 U.S.C. § 362(h) (2000) of

the Bankruptcy Code, which addresses the willful violation of a

stay, as encompassing emotional distress damages. Id. at 269. But

again, that case did not involve waiver of the federal government's

immunity.

Under any of the above formulations, the plaintiff would

have to show a causal connection between the Privacy Act violation

and the emotional distress damages. And here we have the trial

judge's fully warranted holding, after trial, that plaintiff failed

to meet his burden on causation.

Orekoya has not appealed from the district court's

determination that there was no causal relationship between the

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termination of his employment and the defendants' actions. Thus,

his only damages, if any, are to compensate for emotional distress.

Orekoya said that he sought mental health counseling as a result of

being upset when he was escorted from BNE when he could not produce

immigration papers showing he was validly in the country. To

support Orekoya's claim of emotional distress, a psychiatrist

testified that he suffered from depression.

The district court had before it a decade of accumulated

record, including testimony from the § 1981 jury trial. It found

that Orekoya's claim of emotional distress "lacks credibility."

The psychiatrist who testified had examined Orekoya during three

one-hour sessions and had not independently verified his

statements. There was no external evidence of Orekoya's distress;

as the district court found, "During the first semester following

his suspension, Orekoya performed exceptionally in all his classes

at Northeastern University," and he had a successful interview at

the New England Banking Institute, which led to his admission

there, two months after his suspension at BNE.

Even if Orekoya could have proven emotional distress,

there was nothing but speculation to link it to a Privacy Act

violation. Orekoya had independent reasons to be distressed: he

had been accused of rape, which led to BNE suspending him from his

job; and a massive layoff at BNE caused him to lose that job.

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 We find no clear error in the district court's holding

that Orekoya neither demonstrated emotional distress nor showed

that it was caused by any Privacy Act violation.

B. Bivens Jury Instruction Issue

Orekoya's request for a Bivens jury instruction was, in

essence, a request to reconsider the legal ruling of a prior judge

in the proceeding. We review such requests for abuse of

discretion. Ellis v. United States, 313 F.3d 636, 648 (1st Cir.

2002).

Orekoya's § 1981 claim went to the jury, which returned

a verdict against him. The instruction given was:

To establish this case, Mr. Orekoya must persuade
you by a preponderance of the evidence of four things:
First, that he is a member of a distinct racial or
ethnic group;
Second, that Agent Mooney discriminated against him
because of his race or ethnicity;
Third, that he was deprived of the full and equal
benefit of the laws as enjoyed by white citizens; and,
Fourth, that he suffered damages as a result of this
discrimination.
That Mr. Orekoya, as a black Nigerian, is a member
of a distinct racial group is not a matter of dispute.
The real issue in this case is whether the actions taken
by Agent Mooney involving Mr. Orekoya, such as you find
them, were motivated by a racially discriminatory
purpose; that is, did Mr. Agent Mooney intentionally and
purposefully discriminate against Mr. Orekoya because he
was a black person from Nigeria, or were his actions
motivated by some legitimate race-neutral reason.

This instruction itself was subject to no objection.

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 Orekoya's argument, which was presented by post-

instruction objection and pre-instruction request,6 is that he was

entitled to an additional instruction on the ground that a jury

could perfectly well find he had not been discriminated against

because he was black but that would not dispose of the issue of

whether he had been discriminated against because he was Nigerian.

This is a serious error, he says, because his entire case was

geared to showing Agent Mooney's excessive zeal in targeting and

harassing Nigerians because of their nationality, not their race.

The government's response is that there was no longer any Bivens

issue (if a Bivens claim was stated at all -- an issue we do not

reach) to submit to the jury because Judge Young had dismissed the

Bivens claim on qualified immunity grounds in 1997 and Orekoya

thereafter did not pursue the issue. Orekoya demurs that Judge

Young dismissed only the Fifth Amendment due process claims and not

the Fifth Amendment equal protection claims.

While it is true that the discussion in the court's order

says Orekoya argued his Fifth Amendment due process rights had been

violated, the order quite clearly dismisses all Fifth Amendment

claims in Counts I, II, and IV. Those counts are brought,

6
His requested instruction was: "If, but only if, you find
that the actions of the defendant were based on national origin
alone, and were not based on consideration of the plaintiff's race,
then you must consider the plaintiff's claims under the Fifth
Amendment to the United States Constitution." The requested
instruction went on to describe the Fifth Amendment and the Bivens
doctrine.

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respectively, under the United States Constitution, 42 U.S.C. §

1983, and the Massachusetts Civil Rights Act. Moreover, defendant

Mooney had moved to dismiss on qualified immunity grounds all

constitutional claims asserted. Both parties discussed the equal

protection aspects of the constitutional claim in their summary

judgment briefs. Judge Young's omission of a discussion of the

equal protection claims did not mean the dismissal did not

encompass those claims.

Orekoya next erroneously argues that Judge Young could

not have granted qualified immunity because "national origin

discrimination precludes the availability of qualified immunity as

a defense," citing to DiMarco-Zappa v. Cabanillas, 238 F.3d 25, 31,

37 (1st Cir. 2001). The assertion is flatly wrong. DiMarco

applied the usual rules of qualified immunity and concluded, on the

facts there, that immunity was not available. There is no per se

rule that national origin discrimination is exempt from qualified

immunity analysis.

Further, if plaintiff thought the immunity order

ambiguous, he had some obligation to resolve the ambiguity by

straightforwardly presenting it by motion for reconsideration. The

record is bare. We do not, as does plaintiff, read Judge Lindsay's

colloquy with counsel on May 13, 1999 as establishing that there

was a live Bivens claim under the equal protection prong of the

Fifth Amendment. To the contrary, Judge Lindsay, in discussing the

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§ 1981 claim which would go to the jury, seemed to say that in

addition to the qualified immunity defense, no Bivens claim was

stated on the merits because a remedy existed under § 1981.

At most there is a belated request to the trial judge,

Judge Stearns, for a Bivens jury instruction. In these

circumstances the decision by the trial judge not to permit rebirth

of a theory long buried was not an abuse of discretion.

That trial judge added another reason for rejecting the

proposed instruction: it was not close to affecting the outcome.

If the jury returned a verdict against plaintiff on the

instructions given, plaintiff surely would have lost as well on the

instruction he requested. The instruction given required a finding

of discrimination against Orekoya as "a black person from Nigeria"

and that the discrimination be based on his "race or ethnicity."

We agree that any purported error in failing to give the additional

requested instruction was harmless.

C. Conclusion

The judgment for defendants is affirmed.

(Concurring opinion follows.)

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 CAMPBELL, Senior Circuit Judge (concurring). I wish only

to emphasize the panel's express holding in its preceding opinion

that it does not resolve (and I would understand, does not signal

any preference relative to) the question of whether non-pecuniary

emotional distress damages of more than $1,000 may be recovered

under the rubric of "actual damages." Whatever the arguments

favoring such damages, as set out in the court's opinion, one must

also wrestle with the difficult question whether and where Congress

has provided "an unequivocal textual waiver of the Government's

immunity," necessary before such damages can be recognized and

allowed by the courts. United States v. Nordic Village, Inc., 503

U.S. 30, 39 (1992); see also Lane v. Pena, 518 U.S. 187, 192

(1996). This issue awaits another day.

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