Appeal from the United States District Court for the District of Hawaii Samuel P. King, District Judge, Presiding D.C. No. CV-05-00620-SPK.
Argued and Submitted September 12, 2008 -- San Francisco, California.
Filed November 24, 2008; Amended May 22, 2009
Before: Diarmuid F. O'Scannlain, Ronald M. Gould, and Carlos T. Bea, Circuit Judges.
The petition for rehearing and the petition for rehearing en banc are DENIED. No further petitions for rehearing or rehearing en banc may be filed.
O'SCANNLAIN, Circuit Judge
We must decide whether a United States citizen may state a claim against the U.S. Department of State under the Privacy Act for damages arising from his imprisonment in a foreign country.
Leon Rouse is a citizen of the United States. On October 4, 1995, he was arrested in the Philippines when police entered his hotel room and found him and another individual, Godfrey Domingo, undressed. Domingo signed an affidavit stating he was a minor and that he and Rouse had engaged in sexual relations. Though Domingo later disavowed the affidavit, Rouse was charged under Philippine law with violating the "Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act." The trial court ignored Domingo's repudiation and convicted Rouse, relying on the original affidavit, testimony indicating Rouse had engaged in consensual sex with a twenty-year-old male who "look[ed] like a minor," and the fact that Domingo and Rouse were found undressed together. Rouse continued to challenge his conviction in Philippine courts, but was sentenced to over ten years imprisonment on January 12, 1998. After eight years, he was released for medical reasons and deported to the United States.
On January 30, 1996, during Rouse's trial, consular officials from the United States Embassy in Manila (the "Embassy") filed letters with the trial court, expressing concerns with evidentiary issues. The letters were accompanied by a warning that failure to respond would result in referral to the Philippine Ministry of Justice. The record does not appear to contain evidence of either a response from the judge or a referral by the Embassy.
Embassy officials raised Rouse's case with local officials, and the Ambassador himself broached the subject with a Philippine legislator. The Ambassador, however, did not think the matter merited the attention of the Philippine president. Consular officers also visited Rouse at least nineteen times during his confinement, communicated with him by telephone, and assisted in providing him with access to medical care.
Over the course of his confinement, Rouse executed numerous Privacy Act waivers permitting the Department of State (the "Department") to disclose information about his case to third parties. On several occasions, the Department responded to inquiries from private organizations and members of Congress without mentioning its doubts as to the propriety of Rouse's arrest and incarceration or its efforts to obtain his release. The Department also initially refused to release information to certain individuals or groups. Rouse asserts that he had signed Privacy Act waivers covering these parties and that the failure to disclose the records constituted ...