Plaintiff must also overcome the prudential limitation on standing that litigants ordinarily may not be heard to raise the rights of others. Barrows v. Jackson, 346 U.S. 249, 255, 97 L. Ed. 1586, 73 S. Ct. 1031 (1953). In order to assert the rights of depositors plaintiff must show that: 1) he has a "close relationship to the third party" and 2) there "exists some hindrance to the third party's ability to protect his or her own interests." Powers v. Ohio, 499 U.S. 400, 411, 113 L. Ed. 2d 411, 111 S. Ct. 1364 (1991). But cf. Amato v. Wilentz, 952 F.2d 742 (3d Cir. 1991) (concluding these factors are not required, just relevant).
The reason for the first, "close relationship" factor is to ensure that the plaintiff will act as an effective advocate for the third party. As Justice Kennedy noted in Powers, "in certain circumstances 'the relationship between the litigant and the third party may be such that the former is fully, or very nearly, as effective a proponent of the right as the latter.'" 499 U.S. at 413 (citing Singleton v. Wulff, 428 U.S. 106, 115, 49 L. Ed. 2d 826, 96 S. Ct. 2868 (1976)). The courts have sometimes found that a "congruence of interests" exists when state action affects the business relationship between the plaintiff and a third party. See Craig v. Boren, 429 U.S. 190, 195, 50 L. Ed. 2d 397, 97 S. Ct. 451 (1976) ("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"); Pierce v. Society of Sisters, 268 U.S. 510, 69 L. Ed. 1070, 45 S. Ct. 571 (1925) (private school operators have standing to raise constitutional claims of parents to direct the upbringing of their children; focuses on plaintiff's objective of protecting the business relationship). See also National Cottonseed Products Ass'n v. Brock, 263 U.S. App. D.C. 345, 825 F.2d 482, 489-92 & n.15 (D.C. Cir. 1987) (discussing standing based on vendor-vendee relationship). In the current case, there is no existing business relationship between plaintiff and the third party depositors, but none can develop (at least with respect to unclaimed individual deposits in these banks) unless FDIC reveals the depositors' names. Plaintiff'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. Under these circumstances, I find that the relationship between plaintiff and the depositors is sufficiently close and the interests sufficiently aligned to allow plaintiff to raise the constitutional claims of the depositors.
In addition, of course, depositors themselves, who have not received actual notice of their unclaimed deposits and have no knowledge of the due process claim they could bring, initially have no ability to assert their rights.
Plaintiff has complied with both the constitutional and prudential standing requirements.
The seminal constitutional notice case, Mullane v. Central Hanover Bank and Trust Co, 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950), established that the due process clause requires "notice reasonably calculated, under all the circumstances, to apprise interested parties" of the pendency of any final action that affects their legal rights. In Mullane, the Supreme Court ruled that general publication in a newspaper was constitutionally permissible notice for those beneficiaries whose whereabouts could not be ascertained with due diligence, but that the trustees were required to send notice to the last address of beneficiaries known to them. 339 U.S. at 317-20. In making this ruling, the Court established "reasonableness" as the touchstone of constitutional notice analysis, stating that the notice must be of such nature "as reasonably to convey the required information" and it must "afford a reasonable time for those interested to make their appearance." Id. at 314. The Court concluded that "if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met the constitutional requirements are satisfied." Id. at 314-15.
Here, complying with the version of 12 U.S.C. § 1822(e) that was in effect when it assumed receivership of the three banks, FDIC sent written notice addressed to the holders of unclaimed deposits at their last know addresses. FDIC did not send another notice after enactment of the 1993 amendments, telling depositors that the period for filing their claims had been extended. The statute required no such notice. See Nordstrom v. United States, 169 Ct. Cl. 632, 342 F.2d 55, 59 (Ct. Cl. 1965) (federal government has no obligation to notify parties about changes in the law, unless directed to do so by statute). Nor did the amending statute require the government to publish unclaimed depositor lists before allowing the money to revert to FDIC. Instead, FDIC was directed to provide the names and last know addressed of depositors to States requesting them. Pub. L. No. 103-44, Sec. 2(c).
Plaintiff has the burden of persuasion in his Constitutional claim and has failed to carry it. Even assuming (in the absence of any proof of the proposition) that general publication would increase the number of depositors who would receive actual notice that their deposits were available for withdrawal, the Constitution requires only that the government take reasonable steps to notify depositors, not all possible steps or the very best ones. Plaintiff has failed to show that the notice required by statute and actually provided by FDIC is unreasonable under the circumstances. Defendant's motion for summary judgment on the due process claim will accordingly be granted.
An appropriate order accompanies this memorandum.
United States District Judge
Dated: September 8, 1997
For the reasons set forth in the attached memorandum opinion, it is this 8th day of September, 1997
ORDERED that defendant's motion for summary judgment [ # 18] is granted in part and denied in part as it applies to the FOIA claim (Count 1) and granted as it applies to the Constitutional claim (Count 2). It is
FURTHER ORDERED that plaintiff's cross-motion for summary judgment [ # 23] is granted in part and denied in part as it applies to the FOIA claim (Count 1) and denied as it applies to the Constitutional claim (Count 2). It is
FURTHER ORDERED that FDIC provide to plaintiff, within thirty days, a list of the businesses that have unclaimed deposits at the National Bank of Washington, Madison National Bank of Washington, D.C. and Madison National Bank of Virginia.
United States District Judge