E.D.Pa.: No § 1983 right under Privacy Act

A Pennsylvania federal district court held that there is to private right of action to enforce Section 7(b) of the Privacy Act, which requires that government agencies asking for Social Security numbers tell individuals why they are being asked and whether providing them is mandatory.

The court said the provision contained no “rights-creating language,” even though it contains language that in other contexts has been held to be rights-creating (“shall inform that individual”). The court cited no other decisions on § 7(b), though circuit courts have addressed the enforceability of the provision, reaching conflicting conclusions. Bush v. Lancaster City Bureau of Police, 20008 WL 3930290 (E.D. Pa. Aug. 26, 2008) (No. 07-3172).

          Gregory Bush was visiting a cousin when police answered a call about a gun in the home; he was arrested for obstructing police business. He brought several constitutional claims concerning the arrest, some of which the court refused to dismiss. He also brought a claim under 42 U.S.C. § 1983 alleging violation of the Privacy Act of 1974. Section 3 of the Act regulates record-keeping by government agencies, and has express remedies against federal agencies. Section 3 was described as an amendment to an existing statute, and codified at 5 U.S.C. § 552a. Section 7 did not amend any existing law, and was not codified. See Pub. L. 93-579, 5 U.S.C. § 552a (note). Section 7(b) of the Act states:

Any Federal, State, or local government agency which requests an individual to disclose his social security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it.

The court said § 7(b) was not privately enforceable under § 1983, because it “is not phrased with respect to a right conferred upon a group of individuals, but focuses on the obligations of governmental agencies.” The court contrasted § 7(b) with Title VI of the Civil Rights Act, which was held up as paradigms of rights-creating language in Gonzaga Univ. v. Doe, 536 U.S. 273 (2002), and uses the phrase “No person…shall…be subjected….”

            The court did not cite any previous cases on § 7(b), and there is conflicting authority on the enforceability of §7 against state agencies. The Ninth Circuit has held that § 7 creates no private right of action against state agencies, because the codified portions of the Act provide specific remedies against federal agencies only. Dittman v. California, 191 F.3d 1020 (9th Cir. 1999). The Eleventh Circuit criticized Dittman, stating that the codified remedies under § 3 had nothing to do with the uncodified requirements of § 7 – it provided remedies for other portions of the Act – and that § 7 did contain clear rights-creating language. Schwier v. Cox, 340 F.3d 1284 (11th Cir. 2003). An overview of the law published by the Justice Department reviewed these along with several district court cases favoring private enforcement of § 7. Overview of the Privacy Act of 1974 (May 2004), available at http://www.usdoj.gov/oip/1974ssnu.htm. More recently, the Sixth Circuit held that the Act’s codified definition of “agency” as including only federal agencies prevailed over the explicit, but uncodified, language (“Any Federal, State, or local government agency”) of § 7(b). Schmitt  v. City of Detroit, 395 F.3d 327 (6th Cir. 2005), cert. denied, 546 U.S. 1138 (2006).

                More generally, this decision runs contrary to a general trend of permitting § 1983 enforcement of provisions that use “individual” or similar terms. E.g., Ball v. Rodgers, 492 F.3d 1094, 1108 (9th Cir. 2007) (“While express use of the term ‘individuals’ (or ‘persons’ or similar terms) is not essential to finding a right for § 1983 purposes, usually such use is sufficient for that purpose”). Indeed, the language of § 7(b) is not very different from that of some Medicaid provisions that have been held enforceable under § 1983. E.g., id. at 1107 (provisions requiring that states inform disabled and elderly individuals of alternatives to institutional care).