Fagot v. Federal Deposit Ins. Corp.

• Decision Date: 16 April 1984
• Docket Number: Civ. No. 81-2098CC.
• Parties: Pedro R. FAGOT, Plaintiff, v. FEDERAL DEPOSIT INSURANCE CORPORATION, Hoyle L. Robinson, Executive Secretary; John Doe, Richard Roe, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

584 F. Supp. 1168

Pedro R. FAGOT, Plaintiff, v. FEDERAL DEPOSIT INSURANCE CORPORATION, Hoyle L. Robinson, Executive Secretary; John Doe, Richard Roe, et al., Defendants.

Civ. No. 81-2098CC.

United States District Court, D. Puerto Rico.

April 16, 1984.

COPYRIGHT MATERIAL OMITTED

Felicita C. Jomp, Old San Juan, P.R., for plaintiff.

Daniel F. López-Romo, U.S. Atty. by Francisco A. Besosa, Asst. U.S. Atty., Hato Rey, P.R., for defendants.

OPINION AND ORDER

CEREZO, District Judge.

This is an action brought under the Freedom of Information Act, 5 U.S.C. 552 (FOIA), the Privacy Act, 5 U.S.C. 552a, the Administrative Procedure Act, 5 U.S.C. 701, 702 (APA), the First, Fourth, Fifth and Ninth Amendments of the Constitution of the United States and Sections Eight and Ten of Article II of the Constitution of the Commonwealth of Puerto Rico. It is essentially aimed at obtaining disclosure of certain memoranda and reports prepared by officers of defendant Federal Deposit Insurance Corporation (FDIC) concerning Mr. Fagot's work as a lawyer for a federally insured bank. Additionally there is an assortment of claims of privacy rights allegedly violated, appended to the disclosure claims, which are loosely attached to general principles and bent on the abstract. These coarse claims and those which can be liberally construed to state a FOIA-Privacy Act claim are indiscriminately directed at the FDIC, at Mr. Hoyle Robinson in his capacity as executive secretary of that corporation and at two, yet to be identified, unknown defendants, as custodian of records. The defendants have filed motions to dismiss and for summary judgment which, due to plaintiff's variegated pleadings, cover a spectrum of matters ranging from disclosure to sovereign immunity. Their opposition requires that plaintiff's general claims be assessed closer to the facts which, construed in the light most favorable to him, see e.g.: Packish v. McMurtrie, 697 F.2d 23, 27 (1st Cir.1983), we find as follows:

Pedro R. Fagot was director and legal counsel of a federally insured bank. On or about June 1979, he resigned apparently because of differences with bank president Eliseo Font who happens to be his cousin. Upon resigning, he requested a list of all matters then pending related to his work as attorney for the bank. This list supposedly also revealed deficiencies and irregularities in bank procedures. On October 1979 Mr. Fagot approached Thomas Conway, an FDIC examining officer, and expressed his concern over those irregularities. Conway indicated that such matters had to do with internal procedures and referred him to an auditor who concluded that the irregularities were already known to the FDIC.

On January 1980, plaintiff met with FDIC examiners Conway and Sargood and delivered another list he had prepared indicating that there were seventeen (17) documents which were classified as pending in the list originally given him upon resigning as to which he already had receipts from the bank. He allegedly told the examiners that this list was confidential. On March 1980, certain bank officers told Mr. Fagot that the FDIC was complaining of his confidential visits. They also threatened to disclose the contents of private conversations, recorded without his consent, to the Supreme Court of Puerto Rico and the Bar Association Ethics Committee. Thereafter, plaintiff continued to approach FDIC examiners, sometimes at the bank while they conducted investigations and other times in public places. He was dismayed upon learning that the list he had prepared showing the receipts had been given to the bank's directors. Perplexed at the FDIC's apparent lack of concern over the irregularities and illegal activities by bank officers and directors that he had denounced, he filed a complaint in the Superior Court of Puerto Rico, Mayagüez Part, against the bank and the directors who allegedly harassed him,¹ but did not include the FDIC or its examiners. Plaintiff was disturbed because the FDIC examiners he had approached were to be called as witnesses for the defendants in that case. On July 1981 he requested from the FDIC San Juan Field Office copies of memoranda prepared by the examiners he met with discussing their meetings. This request was partially granted. FDIC considered that the documents were exempt from disclosure under the FOIA and not part of a system of records as defined by the Privacy Act, yet chose to voluntarily disclose portions of them. Those portions describe Mr. Fagot's approaches to FDIC examiners regarding his concern over the alleged irregularities and the steps they took to look into the matter. An administrative appeal was unsuccessful and this action ensued. No attempt was made to correct or to amend the portion of the documents that was revealed, as provided by 5 U.S.C. 552a(d)(2), (3), nor to pursue other types of administrative claims regarding this matter.

Other than repeating the arguments raised in the administrative proceeding in support of disclosure of deleted portions, the complaint also charges that FDIC examiners disclosed the confidential list plaintiff had submitted and informed the bank of his meetings with FDIC. It is contended that such disclosure as well as the mere existence of the information on Mr. Fagot may affect his future chances of employment with FDIC regulated institutions or with the federal government. He states that the Privacy Act affords him the means to correct any inaccuracies in the record which could affect him in the future. Plaintiff also charges some sort of conspiracy between FDIC examiners and the bank officers in failing to act despite being constantly notified of bank irregularities and officers' illegal activities. This conspiracy theory, it is urged, is buttressed by the fact that FDIC officers were willing to testify against him in his Superior Court action against the bank directors. Injunctive and declaratory relief is sought disclosing all contents of the documents and enabling plaintiff to correct them according to his version of the facts, plus $100,000 in damages and attorney's fees.

This blend of pleadings is based on 5 U.S.C. 552, 552a(d), (e) and (g), some type of tort claim for invasion of privacy and injury to reputation and a Bivens action for violation of the constitutional right to privacy. Defendants' first challenge is addressed to the claims for access to information on the ground that the material is exempt from disclosure according to FOIA exemptions, 552(b)(2), (b)(4), (b)(5), (b)(6) and (b)(8). They also challenge the applicability of the Privacy Act claiming that these records are not part of a "system of records" retrievable by reference to plaintiff's name, as required by that statute. The tort claims are attacked on various jurisdictional grounds. It is urged that Hoyle Robinson has not been correctly served and that the delay should be ground for dismissal for lack of prosecution. They also contend that these claims are really actions against the United States under the Federal Tort Claims Act, 28 U.S.C. 2671 et seq. (FTCA), which require prior exhaustion of administrative remedies. The final argument raised is that the Administrative Procedure Act cannot be invoked as an independent source of jurisdiction and that, absent a valid FOIA-Privacy claim, there is no jurisdiction.

Defendants have submitted the deleted portions and documents withheld for the court's in-camera inspection and supplied a Vaughn index to plaintiff. See: Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973) cert. denied 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). They allege that there are no issues of fact and that a determination can be made on the record without need of trial. Plaintiff has raised multiple issues of fact which he claims require trial, such as: whether FDIC examiners revealed confidential information about him to third parties; whether the deleted and undisclosed documents were properly withheld; whether FDIC examiners conspired with bank officers; whether the contents of the records are accurate and timely and whether defendants' refusal to answer interrogatories is proper.

After carefully examining the record and the documents submitted for in-camera inspection, we conclude that there are no genuine controversies on material facts which would preclude a ruling on the merits at this stage. Most of the matters which plaintiff has set forth as issues of fact are questions of law which can be adequately resolved on the record before us. The remainder are facts which have not been properly controverted, are based on speculation not related to material facts, as required by Rule 56 Fed.R.Civ.P. See: Emery v. Merrimack Valley Woods Products, Inc., 701 F.2d 985 (1st Cir.1983) and Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975) cert. denied 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976). For instance, the scenario of a conspiracy of silence and inaction by FDIC consists of innuendos hurled in a void. The references to inaction by FDIC examiners despite plaintiff's complaints of bank irregularities and illegal activities, the participation of some of them in social activities hosted by the bank and their willingness to testify for the bank in the Commonwealth suit do not make a conspiracy. Absent the innuendo of conspiratorial silence by the FDIC, the wiretapping, eavesdropping and blackmail are all said to have been done by bank officers, not FDIC. Plaintiff must do more than rely on these "gossamer threads of whimsy, speculation and conjecture." Emery v. Merrimack Valley Wood Products, Inc., 701 F.2d 985, 992 (1st Cir.1983), to enable the court to, at least, consider the feasibility of a conspiracy claim.

We turn now to plaintiff's remaining claims, starting with the core claim for information, to determine whether, as a matter of law, they withstand the thrust of defendants' challenge. The access to information request falls under both the FOIA and the Privacy Act. In this...