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.