Orekoya v. Mooney

• Decision Date: 15 May 2003
• Docket Number: No. 02-1306.,02-1306.
• Citation: 330 F.3d 1
• Parties: Sunday Dixon OREKOYA, Plaintiff, Appellant, v. James MOONEY; United States Secret Service, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 1

330 F.3d 1

Sunday Dixon OREKOYA, Plaintiff, Appellant, v. James MOONEY; United States Secret Service, Defendants, Appellees.

No. 02-1306.

United States Court of Appeals, First Circuit.

Heard March 6, 2003.

Decided May 15, 2003.

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

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

Before LYNCH, Circuit Judge, CAMPBELL, Senior Circuit Judge, and HOWARD, Circuit Judge.

LYNCH, Circuit Judge.

Sunday Dixon Orekoya is a black Nigerian national who brought suit asserting he was the victim of racial and national origin discrimination by an overzealous United States Secret Service agent who was investigating financial fraud crimes by Nigerian nationals. Orekoya asserted that this agent and another violated the Privacy Act of 1974, 5 U.S.C. § 552a (2000), in two instances. In 1989, Agent Melissa Walsh obtained and then released to Orekoya's employer, the Bank of New England, information about Orekoya (which turned out to be inaccurate) from the files of the Immigration and Naturalization Service. In 1990, Agent James Mooney is alleged to have released to the employer information from a Federal Bureau of Investigation record. Orekoya also asserts that Agent Mooney, through these and other actions, violated his Fifth Amendment rights.

The district court dismissed his Privacy Act claims after a bench trial. A jury had earlier rejected his claims under 42 U.S.C. § 1981 (2000). In this appeal, Orekoya argues that the jury was not properly instructed on his Fifth Amendment claims of discrimination, brought under the Bivens doctrine. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). He also attacks the district court's Privacy Act conclusions, claiming errors of fact and law. On the Bivens jury instruction claim, we affirm. On the Privacy Act claims, we affirm, holding that: (1) the Act permits an award of emotional distress damages, subject to firm requirements for proof of emotional distress; (2) plaintiff's proof of emotional distress damages was insufficient; and (3) an agency may not immunize itself from liability for its unauthorized disclosure on the grounds that the records disclosed did not come from its files but were obtained from a system of records maintained by another agency.

I. Background

A. Factual Background

Orekoya was born in Lagos, Nigeria in 1960 and came to the United States to attend college in 1983. He attended Roxbury Community College and took courses at Northeastern University and the New England Banking Institute. In 1986, Orekoya began working for the Bank of New England (BNE) as a teller. In 1988, he was promoted to a position as a Fund Accountant in the commercial lending department and transferred to BNE's headquarters.

In 1989, the United States Secret Service (USSS) and other federal agencies set up task forces in a number of cities to combat a rise in crime by Nigerian nationals. The Immigration and Naturalization Service (INS) estimated that a majority of the Nigerian nationals in the United States were involved in criminal activity. This activity revolved primarily around financial transaction and insurance fraud, and a typical suspect worked in a bank.

1. James Mooney

On January 31, 1989, Orekoya loaned his car to Isaac Olopade, another Nigerian national. Olopade was stopped by the Providence Police for speeding. He was the subject of a USSS credit card investigation, and so the police called the Providence office of the USSS to request an agent's presence at the scene of the traffic stop. James Mooney, an agent specializing in counterfeiting and fraud investigations who knew Olopade, arrived. He discovered that the car belonged to "Sunday Dixon." This name was not unfamiliar to Mooney; a car with a license plate registered in that name had previously appeared at businesses subject to investigation and surveillance by the USSS.

In March 1990, Mooney was contacted by the Rhode Island police, who were investigating an allegation that Orekoya had raped a woman in Cranston. The woman named "Sunday Dixon" as the rapist and identified Orekoya's photo. Mooney discovered through the owner of the apartment where the rape occurred that Orekoya worked for BNE. Mooney then contacted BNE and discussed Orekoya with Christopher Carney, Director of Corporate Security for BNE. Mooney informed Carney that the USSS was conducting an investigation into the use of BNE credit cards in a fraud scheme involving stolen rental cars. Orekoya later claimed that Mooney also told Carney about the rape investigation and Orekoya's prior arrest for robbery, information supposedly derived from the Federal Bureau of Investigation (FBI), and that Mooney asked for information about Orekoya's bank accounts.

On March 9, 1990, Orekoya was arrested at BNE by the Boston Police. Mooney interrogated him about the sexual assault and the involvement of Nigerians in credit card fraud. He also took a picture of Orekoya at the police station and kept it. Orekoya claimed that Mooney periodically showed the picture around the USSS office.

As a result of his arrest, Orekoya was suspended from work without pay. On June 25, 1991, the rape case was dismissed because the victim would not testify in court. That month Orekoya attempted to regain his job but was told that the position had been eliminated.

2. Melissa Walsh

In 1989, BNE began conducting an internal investigation into overdraft activity in Orekoya's personal bank account. In the course of the investigation, Carney noticed that Orekoya's passport had expired. On June 27, 1989, Carney contacted the USSS and asked Melissa Walsh, an agent, about Orekoya's immigration status. She called Carney back the next day and reported that she learned from "Immigration" that Orekoya was present in the United States illegally. When a BNE official contacted the INS, it refused to release any information over the phone.

Because Orekoya had lost his green card, he could not produce any legal documents proving his immigration status. As a result, on July 24, 1989, BNE temporarily suspended Orekoya, with pay. He went to the Boston INS office and returned to BNE the next day with a stamp on his passport proving eligibility. He was immediately given back his position.

B. Procedural History

Orekoya filed a complaint against USSS and Mooney. He claimed that he had been the victim of discrimination and alleged violations of the Fourth, Fifth, and Ninth Amendments, 42 U.S.C. §§ 1981, 1983, and the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I (2003). He also claimed that the USSS had violated the Privacy Act, 5 U.S.C. § 552a, and the Financial Privacy Act, 12 U.S.C. § 3417 (2000). Finally, he alleged counts of slander and abuse of process against Mooney.¹

Orekoya filed his first complaint in 1992. He filed an amended complaint in early 1996. Since that time, for a variety of reasons including illnesses and recusals, the case has been heard by no less than four federal district court judges. It has been over a decade since the first complaint was filed. We briefly navigate the contours of the procedural history, setting aside the niceties until they are relevant to the discussion.

In a summary judgment ruling in 1997, the district court dismissed the Fourth, Fifth, and Ninth Amendment claims and the § 1983 claim. It dismissed the Fifth and Ninth Amendment claims against Mooney based on a finding that he was entitled to qualified immunity.

In 1999, the district court granted summary judgment to the defendants for any remaining Fourth, Fifth, and Ninth Amendment claims. It also dismissed the Massachusetts Civil Rights Act and slander claims. After this order, all that remained were the § 1981 claim and the Privacy Act and Financial Privacy Act claims. The court also made clear that the § 1981 claim could encompass discrimination based on ethnicity and ancestry, but that Orekoya could not bring a separate claim for discrimination based on national origin under Bivens.

The § 1981 claim was tried in front of a jury in March 2000. Orekoya asked that the court submit a Bivens claim for national origin discrimination to the jury as well as the § 1981 claim for discrimination for race or ethnicity. The request was denied. On March 22, 2000, the jury found for the defendants.

On March 24, 2000 the district court held a bench trial. On February 15, 2002, the district court found for the defendants on the Privacy Act claim.² It found that Walsh's disclosure to BNE did not violate the Act because it did not involve the USSS's own records system, which does not maintain records regarding citizenship, and because Orekoya did not prove that he suffered adverse effects. It found that the Privacy Act did not allow recovery for emotional damages or other non-quantifiable injuries, and that in any case Orekoya had not proven emotional distress.

Plaintiff timely appealed both the refusal of the Bivens jury instruction and the district court's Privacy Act claims.

II. Discussion

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

When reviewing the decisions of the district court in a bench trial, we review the court's legal determinations de novo and its factual findings for clear error. N.E. Drilling v. Inner Space Servs., Inc., 243 F.3d 25, 37 (1st Cir.2001).

In the Privacy Act of 1974, Congress imposed restrictions on the ability of government agencies to disclose certain information on individuals which they had maintained in a system of records. See 5 U.S.C. § 552a(b). Since then, Congress has amended the statute several times, most recently in 1999, taking further incremental steps to protect the privacy of individuals. This court has had very few occasions to interpret or apply the Act....