                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-9-1995

Beneficial vs. Polonowicz
Precedential or Non-Precedential:

Docket 94-1346




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                          N0. 94-1346


           BENEFICIAL CONSUMER DISCOUNT COMPANY,

                           Appellant

                               v.

           DAVID R. POLTONOWICZ; JOHN POLTONOWICZ;
THE INTERNAL REVENUE SERVICE OF THE UNITED STATES OF AMERICA



      On Appeal From the United States District Court
         For the Eastern District of Pennsylvania
            (D.C. Civil Action No. 93-cv-03780)



      Submitted Pursuant to Third Circuit LAR 34.1(a)
                       August 4, 1994

       BEFORE:    STAPLETON and GREENBERG, Circuit Judges,
                  and ATKINS,* District Judge

             (Opinion Filed    February 9, l995)




                        Shawn J. Lau
                        Bingaman, Hess, Coblentz & Bell
                        660 Penn Square, 601 Penn Street
                        P. O. Box 61
                        Reading, PA 19603
                          Attorney for Appellant

                        Frank W. Hunger
                        Assistant Attorney General
                        Michael R. Stiles
                        United States Attorney
*Honorable C. Clyde Atkins, United States District Judge for the
Southern District of Florida, sitting by designation.
                            Barbara L. Herwig
                            Irene M. Solet
                            Attorneys, Appellate Staff
                            Civil Division, Room 3343
                            U.S. Department of Justice
                            10th & Pennsylvania Ave., N.W.
                            Washington, DC 20530-0001
                              Attorneys for Appellee




                       OPINION OF THE COURT




STAPLETON, Circuit Judge:



          Beneficial Consumer Discount Co. ("Beneficial") appeals

from an order dismissing its third-party claim against the

Internal Revenue Service ("IRS"), and remanding the remainder of

this case to state court.    The district court reasoned that the

doctrine of sovereign immunity precluded Beneficial's claim

against the IRS.   At issue is whether the waiver of the sovereign

immunity of the United States set forth either in the Right to

Financial Privacy Act of 1978 ("RFPA"), 12 U.S.C. §§ 3401-3422,

or the Federal Torts Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b),

2671-2680, permits Beneficial's claim.     We hold that neither of

these statutes waives the federal government's sovereign immunity

against Beneficial's claim.    We will affirm in part and dismiss

in part for lack of jurisdiction.
                                I.

          This case arises out of a March 1991 installment loan

agreement between Beneficial and defendants David Poltonowicz and

John Poltonowicz ("the Poltonowiczs").    Beneficial, claiming that

the Poltonowiczs defaulted on that loan, filed suit against them

in the Pennsylvania Court of Common Pleas.   In response, the

Poltonowiczs asserted a counterclaim, alleging that Beneficial

had violated the terms of the loan agreement, as well as

unspecified state and federal laws, by providing certain

confidential information to third parties.

          Beneficial admits that it released information

concerning the Poltonowiczs to a third party, the IRS.     It

nevertheless argues that this alleged breach of confidentiality

was entirely justified.   It explains that IRS officials requested

the confidential information in writing and certified to

Beneficial, pursuant to the requirements of 12 U.S.C. § 3403(b),

that the request met the requirements of the RFPA.   The IRS also

informed Beneficial that good-faith reliance upon the RFPA

certification would relieve Beneficial of any possible liability

to the Poltonowiczs for disclosing the requested account

information.   See 12 U.S.C. § 3417(c).

          This appeal arises because Beneficial did something

more than assert the IRS's RFPA certification as a defense under

§ 3417(c); it joined the IRS, alleging that, if Beneficial were

held liable to the Poltonowiczs, it was entitled to judgment

against the IRS for any amount they recovered.   In response, the

IRS removed the case to the district court and filed a motion to
dismiss on the ground that Beneficial's claim was barred by the

doctrine of sovereign immunity.   The district court granted the

IRS's motion, dismissing Beneficial's claim against the IRS with

prejudice, and remanding the case to state court.     Beneficial

filed a timely motion for reconsideration.     The district court

denied that motion and this appeal followed.



                              II.

          We are presented with threshold issues of jurisdiction.

With certain exceptions not here relevant, we may review only

final orders of a district court.   Moreover, we are specifically

barred by 28 U.S.C. § 1447(d) from reviewing "[a]n order

remanding a case to the State court from which it was removed,"

where the district court has decided to remand because it

believes it "lacks subject matter jurisdiction."     28 U.S.C.

§§ 1447(c), (d), as interpreted in Thermtron Products, Inc. v.

Hermansdorfer, 423 U.S. 336 (1976), and Gravitt v. Southwestern

Bell Telephone Co., 430 U.S. 723 (1977).

          The November 30, 1993, order from which Beneficial

appeals dismissed with prejudice its cross-claim against the IRS

on "grounds of sovereign immunity" and remanded the remaining

claims in the case to the state court from which it came because

it had "no independent jurisdiction" over those claims.

Beneficial asks us to hold that the district court erred in

dismissing its claim against the IRS.   It further asks us to rule

that the district court erred in remanding the other claims in
the case whether or not it was justified in dismissing the IRS.1

We conclude that we have jurisdiction to review that portion of

the November 30, 1993, order which dismissed Beneficial's claim

against the IRS with prejudice, and we will affirm that part of

the order.     We are without jurisdiction, however, to review the

district court's remand decision.

          Because the district court's decision to dismiss

Beneficial's claim against the IRS affected the substantive

rights of the parties and was separable from the district court's

decision to remand, that portion of the order appealed from is a

final one over which we have appellate jurisdiction despite the

bar of 28 U.S.C. § 1447(d).    This is the teaching of the Supreme

Court's decision in City of Waco v. United States Fidelity &

Guaranty Co., 293 U.S. 140, 143-44 (1934) (review permitted of an

order dismissing one party to a case where that order was

accompanied by a motion to remand because "in logic and fact the

decree of dismissal preceded that of remand and was made by the

District Court while it had control of the case."), and our

decision in Carr v. American Red Cross, 17 F.3d 671, 674-78 (3d

Cir. 1994) (same).

          On the other hand, § 1447(d) bars our review of that

portion of the district court's order remanding this case to

state court.    City of Waco v. United States Fidelity & Guarantee


1
 . Beneficial contends that even if the IRS is protected by
sovereign immunity, the district court had jurisdiction to rule,
and should have ruled, on its motion for summary judgment on the
Poltonowiczs' claim against Beneficial under the RFPA.
Co., 293 U.S. 140, 143 (1934) (stating that "no appeal lies from

the order of remand"); see generally 15A Charles A. Wright et

al., Federal Practice & Procedure § 3914.11, at 712-15 (1992 &

Supp. 1994).     Cases permitting appellate consideration of remand

orders, such as Carr or Thermtron Products, are inapposite.     We

permitted review of the remand order in Carr because without that

review, our decision overturning the district court's order which

triggered the remand would have been meaningless.      17 F.3d at

683.   Our decision here, in contrast, affirms the order preceding

remand.   Thermtron Products is likewise inapplicable; the Supreme

Court there permitted mandamus review of a remand order which was

based "on grounds that [the district court] had no authority to

consider."     423 U.S. at 351.   Here the district court's remand

was based on its conclusion that it had no subject matter

jurisdiction over the remaining claims and, as Thermtron Products

expressly recognized, this is the kind of order which comes

within the scope of § 1447(d) and may not be reviewed.



                                  III.

             It is well settled that the United States enjoys

sovereign immunity from suits and, accordingly, may be sued only

if it has waived that immunity.      United States v. Idaho ex rel.
Dep't of Water Resources, 113 S. Ct. 1893, 1896 (1993); United

States v. Nordic Village, Inc., 112 S. Ct. 1011, 1014 (1992); FMC

Corp. v. Department of Commerce, 29 F.3d 833, 838-39 (3d Cir.

1994); In re University Med. Ctr. (University Med. Ctr. v.
Sullivan), 973 F.2d 1065, 1085 (3d Cir. 1992).      The IRS, as an
agency of the United States, is thus shielded from private

actions unless sovereign immunity has been waived.   United States

v. Mitchell, 463 U.S. 206, 212 (1983).

            "[W]aivers of federal sovereign immunity must be

'unequivocally expressed'" in the statutory text and "'[a]ny such

waiver must be strictly construed in favor of the United

States.'"   Idaho, 113 S. Ct. at 1896 (citations omitted);

Department of Energy v. Ohio, 112 S. Ct. 1627, 1633 (1992);

Nordic Village, 112 S. Ct. at 1014-15; Ardestani v. INS, 112

S. Ct. 515, 520 (1991); University Med. Ctr., 973 F.2d at 1085.

            Beneficial asserts that two federal statutes permit it

to bring its third-party claim against the IRS:    the Federal

Right to Privacy Act ("the FRPA") and the Federal Tort Claims Act

("the FTCA").    We consider the applicability of these two

statutes in turn.



                                IV.

            The Right to Financial Privacy Act of 1978, 12 U.S.C.

§§ 3401-3422, is designed "to protect the customers of financial

institutions from unwarranted intrusion into their records while

at the same time permitting legitimate law enforcement activity."

H.R. Rep. No. 1383, 95th Cong., 2d Sess. 33 (1978), reprinted in
1978 U.S.C.C.A.N. 9273, 9305.    The RFPA's civil enforcement

mechanism, § 3417(a), reflects this goal of protecting the

privacy interests of customers of financial institutions.      It

states in pertinent part:
           (a) Liability of agencies or departments of
           United States or financial institutions.
           Any agency or department of the United States
           or financial institution obtaining or
           disclosing financial records or information
           contained therein in violation of this
           chapter is liable to the customer to whom
           such records relate in an amount equal to the
           sum of --
           (1) $ 100 without regard to the volume of
           records involved;
           (2) any actual damages sustained by the
           customer as a result of the disclosure;
           (3) such punitive damages as the court may
           allow, where the violation is found to have
           been willful or intentional; and
           (4) in the case of any successful action to
           enforce liability under this section, the
           costs of the action together with reasonable
           attorney's fees as determined by the court.


           Beneficial maintains that § 3417(a) waives the IRS's

sovereign immunity, giving Beneficial a cause of action against

the IRS.   We disagree.   Nothing in the RFPA permits a financial

institution like Beneficial, which is not a "customer" within the

meaning of that Act, to bring suit to enforce its customers'

RFPA-protected rights.    Further, nothing in the RFPA permits a

financial institution to shift to the government as a joint tort-

feasor -- through a suit for contribution, indemnification, or

otherwise -- any part of its burden of paying civil penalties to

a customer for violations of the RFPA.   Accordingly, it is not

surprising that the text of the RFPA evidences no intent on the

part of Congress to waive sovereign immunity with respect to

claims like the one here asserted by Beneficial against the IRS.



                                 A.
          Section 3417(a) is specifically limited to actions

instituted by the "customer" whose rights to financial privacy

have been violated.   The term customer "means any person or

authorized representative of that person who utilized or is

utilizing any service of a financial institution, or for whom a

financial institution is acting or has acted as a fiduciary, in

relation to an account maintained in the person's name."     12

U.S.C. § 3401(5).   Here, Beneficial is the financial

institution,2 not the customer; no one claims that the IRS

somehow violated Beneficial's right to financial privacy.      Thus,

any § 3417(a) claim Beneficial could have against the IRS would

derive from its allegation that the IRS violated the

Poltonowiczs' rights to financial privacy.

          Beneficial suggests that § 3417(a) gives Beneficial the

right to stand in the Poltonowiczs' shoes and assert their rights

to privacy on their behalf.    Beneficial points to no provision in

the RFPA, however, indicating that financial institutions may

hold the government liable for violations of their customers'
rights to financial privacy.   Instead, the essence of

Beneficial's argument is that fairness requires that such a cause

of action and a waiver of sovereign immunity with respect thereto

be implied by courts called upon to enforce the RFPA.    It claims


2
 . The RFPA defines "financial institution" broadly as "any
office of a bank, savings bank, card issuer . . ., industrial
loan company, trust company, savings association . . ., credit
union, or consumer finance institution . . . ." 12 U.S.C.
3401(1). Beneficial does not contest that it is a financial
institution for the purposes of the RFPA.
that, unless this court implies such a cause of action and

waiver, Beneficial might be held liable to the Poltonowiczs

merely because it had complied in good faith with the IRS's

request for allegedly confidential financial information.

          Nothing in the statute or the legislative history

supports Beneficial's claim to an implied cause of action against

the government for financial institutions to vindicate the rights

of their customers.   In fact, § 3417(d), which states that "[t]he

remedies and sanctions described in this chapter shall be the

only authorized judicial remedies and sanctions for violations of

this chapter," appears to mandate the exact opposite conclusion.

See also H.R. Rep. No. 1383, at 49 (stating that "[t]he

definitions of 'financial records' and 'customers,' taken

together, are intended to preclude application of the bill to

anyone other than the person to whose account information the

government seeks to access").   Furthermore, Beneficial's fear of

being held liable for its good-faith reliance on the IRS's RFPA

certification is entirely unfounded.    Section 3417(c)

specifically provides relief for a financial institution caught

in a situation like the one Beneficial alleges, dictating that

the institution may not be held liable to customers under the

RFPA if it relied in good faith on a government authority's

certified request for information.3    The availability of this

3
.   Section 3417(c) states:

          Any financial institution or agent or
          employee thereof making a disclosure of
          financial records pursuant to this chapter in
          good-faith reliance upon a certificate by any
defense obviates any need financial institutions might have to

bring RFPA claims against the government for the government's

violations of their customers' rights to financial privacy.    We

therefore decline Beneficial's invitation to imply a derivative

right on its behalf and to find an unexpressed waiver of

sovereign immunity with respect to claims based on that right.



                               B.

          Our conclusion must be the same with respect to

Beneficial's effort to secure contribution or indemnity from the

IRS under the RFPA as a joint tort-feasor.   Nothing in the RFPA

creates a cause of action for contribution or indemnification in

favor of a financial institution which has been held liable to a

customer as a result of a disclosure to the government.

Moreover, even if we were disposed to imply a cause of action for

contribution or indemnification under the RFPA, we could not

imply a waiver of sovereign immunity with respect to that cause

of action without running afoul of the well-established

injunction against recognizing a waiver of federal sovereign



(..continued)
          Government authority or pursuant to the
          provisions of section 3413(l) of this title
          shall not be liable to the customer for such
          disclosure under this chapter, the
          constitution of any State, or any law or
          regulation of any State or any political
          subdivision of any State.


(Emphasis added.)
immunity not evidenced in the statutory text.    See, e.g., Idaho,

113 S. Ct. at 1896.



                                  V.

             As Beneficial points out, the Federal Tort Claims Act

waives sovereign immunity as to claims against the United States

for money damages for injury caused by the negligent or wrongful

act or omission of a government employee acting within the scope

of his employment "under circumstances where the United States,

if a private person, would be liable to the claimant in

accordance with the law of the place where the act or omission

occurred."    28 U.S.C. § 1346(b); see also 28 U.S.C. § 2674.

Beneficial insists that this waiver encompasses the following

cross-claim it seeks to assert against the IRS:
          In this matter, if [the Poltonowiczs']
          allegations are proven correct, officers
          and/or agents of the IRS specifically misled
          Beneficial employees into believing that they
          were at all times entitled to and under a
          duty to respond as requested in the IRS'
          Request for Documents. These requests were
          made by supposedly seasoned IRS agents, who
          knew or should have known of the requirements
          of the Federal Right to Financial Privacy
          Act. Beneficial presented these allegations
          in its complaint to join the IRS as [an]
          additional defendant. Should the allegation
          be proven correct, this conduct would rise to
          the level of tortious conduct under state
          law; the Government expressly waives
          sovereign immunity for such conduct by virtue
          of the Federal Tort Claims Act Title 28,
          §§ 1346 and 2674.


(Appellant's Br. at 21.)
            This is the claim, and the only claim, Beneficial asks

us to hold is within the scope of the sovereign immunity waiver

found in the FTCA.    The district court concluded that the claim

is not within the scope of that waiver because it "sounds in

misrepresentation or deceit" and § 2680(h) of the FTCA

specifically preserves the sovereign immunity of the United

States with respect to claims "arising out of . . .

misrepresentation [or] deceit."    28 U.S.C. § 2680(h).   We agree

with the district court.

            Beneficial contends that its claim is a fraud claim

under Pennsylvania law and that such claims differ from the

claims of "misrepresentation" or "deceit" barred by § 2680(h).

In its words, "the actions of the IRS representatives in this

matter were on a much greater scale than mere misrepresentations

and rose to the level of fraud.    Fraud or fraudulent

misrepresentation is not excluded by the Federal Tort Claims

Act."   (Appellant's Br. at 22.)   Beneficial's view of the law is

mistaken.

            The essence of an action for misrepresentation or

deceit, for the purposes of § 2680(h), is a communication of

misinformation upon which the recipient relies.    Block v. Neal,

460 U.S. 289, 296-97 (1983); United States v. Neustadt, 366 U.S.

696, 702-11 (1961).    As a result, courts have consistently held

that fraud claims against the government are not permitted under

the FTCA.   See, e.g., United States v. Texarkana Trawlers, 846

F.2d 297, 304 (5th Cir.), cert. denied, 488 U.S. 943 (1988); see
also McNeily v. United States, 6 F.3d 343, 349 (5th Cir. 1993)
(referring to § 2680(h) as the "fraud and misrepresentation"

exception to the FTCA).4

          Beneficial's fraud claim alleges that it relied to its

detriment on the IRS's alleged misrepresentation that the IRS was

entitled to the information it requested and that the IRS's

certificate relieved Beneficial of any possible liability to the

Poltonowiczs in connection with the disclosure of the account

information.   This claim fits squarely into § 2680(h)'s

misrepresentation and deceit exception to the FTCA's waiver of

sovereign immunity.   It accordingly is barred by the doctrine of

sovereign immunity.

          Beneficial at times characterizes the above-quoted

claim not only as a fraud claim but also as a claim for

contribution or indemnification.    The FTCA's waiver of sovereign

immunity normally encompasses claims for contribution or

indemnification where the law of the relevant state would hold a

private individual liable for contribution or indemnification in

the same circumstances.    See, e.g., Lockheed Aircraft Co. v.

United States, 460 U.S. 190, 196-98 (1983); United States v.
Yellow Cab Co., 340 U.S. 543, 546-52 (1951).5   Claims for
4
 . Beneficial's argument that under Pennsylvania law a fraud
claim is different from a claim for misrepresentation or deceit
misses the mark. The relevant issue is whether the claim
Beneficial here presses is a claim based on "misrepresentation"
and "deceit" as those terms are used in § 2680(h), and the scope
of the § 2680(h) misrepresentation or deceit exception is defined
by federal, not state, law. Cross Bros. Meat Packers, Inc. v.
United States, 705 F.2d 682, 683 (3d Cir. 1983).
5
 . The FTCA waives sovereign immunity only in circumstances in
which the United States would be liable under the law of the
place where the government employee's act or omission occurred.
contribution or indemnity against the government are prohibited,

however, when permitting the claims to go forward effectively

would defeat the purposes of a particular exception to the

government's waiver of sovereign immunity.   See Stencel Aero

Eng'g Corp. v. United States, 431 U.S. 666, 673-74 (1977)

(private party liable in tort to a military serviceman could not

recover from federal government under a contribution or

indemnification theory because permitting the claim would defeat

the purposes behind the government's immunity against the

serviceman's direct claim).

          However Beneficial may characterize the only claim it

here asserts against the IRS, the facts that give rise to

liability under that claim involve misrepresentations or deceit
(..continued)
Accordingly, a showing of a violation of federal law will not
alone suffice to qualify a claim under the FTCA's waiver.
Nuclear Transp. & Storage, Inc. v. United States, 890 F.2d 1348,
1351-53 (6th Cir. 1989) (no FTCA waiver with respect to Fifth
Amendment claim), cert. denied, 494 U.S. 1079 (1990); U.S. Gold &
Silver Invs. Inc. v. United States, 885 F.2d 621, 621-22 (9th
Cir. 1989) (same as to Lanham Act claim); Attallah v. United
States, 955 F.2d 776, 785 n.15 (1st Cir. 1992) (same as to claims
based on Customs regulations); Goldstar (Panama) S.A. v. United
States, 967 F.2d 965, 969 (4th Cir. 1992) (same as to Hague
Convention), cert. denied, 113 S. Ct. 411 (1992); Boda v. United
States, 698 F.2d 1174, 1176 (11th Cir. 1983) (same as to Due
Process claim). Beneficial refers us to no state law other than
Pennsylvania case law pertaining to fraud. Under the
Pennsylvania law of contribution and indemnity, as we understand
it, Beneficial could recover against the IRS under either theory
only if the IRS were directly liable to the Poltonowiczs for the
injuries they allegedly suffered. We have found no Pennsylvania
law which would impose liability on a private individual who did
no more than request information from a financial institution and
receive it when the request was voluntarily honored by the
institution. For this reason, we assume that Beneficial's
decision to rest its FTCA argument solely on the facts alleged in
support of its fraud claim was a deliberate one.
and reliance by Beneficial to its detriment.    Permitting

Beneficial to proceed with its "indemnification" and

"contribution" claims effectively would defeat the purposes of

the § 2680(h) misrepresentation and deceit exception to the

government's waiver of sovereign immunity.     Cf. Stencel, 431 U.S.

at 672-74; see also Colonial Bank & Trust Co. v. American

Bankshares Corp., 439 F. Supp. 797, 802-03 (E.D. Wis. 1977)

(holding that § 2680(h) bars a third-party misrepresentation

claim against a government agency); Marival, Inc. v. Planes,

Inc., 306 F. Supp. 855, 857-60 (N.D. Ga. 1969) (same).       We may

not permit that result.



                               VI.

          For the foregoing reasons, the district court properly

dismissed Beneficial's third-party claim against the Internal

Revenue Service for want of jurisdiction.    Accordingly, the

portion of its order effectuating that decision will be affirmed.

The remainder of the appeal will be dismissed for lack of

appellate jurisdiction.
