UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


LEPELLETIER, ROBERT

v.

FDIC


97-5287a

D.C. Cir. 1999


*	*	*


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 


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


to requesting depositors, or by depositing funds that would be 
available to each depositor at other local banks. See id.  s


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


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


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 


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.


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


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


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


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


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


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


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


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


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


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


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


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 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


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


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.


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


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.