UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LOUIS A. MARKS, JR.; BRENDA J.

MARKS; JEREMY S. THOMPSON,

Plaintiffs-Appellants,

v.

UNITED STATES SOCIAL SECURITY

ADMINISTRATION; JOHN GROOVER;

COMMONWEALTH OF VIRGINIA,

Department of Rehabilitative

Services; CAROLINA LONGA, MD;

LUC VINH, MD; U.S. DEPARTMENT OF

VETERANS AFFAIRS; BANK OF

AMERICA NT&SA, successor by

No. 96-1055

merger to Security Pacific National

Bank, not in its individual capacity

but solely as Trustee for American

Housing Trust VI; BOATMAN'S

NATIONAL MORTGAGE COMPANY,

formerly known as National

Mortgage Company; SHAPIRO &

BURSON; CHRISTINE S. PATTERSON;

LORI-DON MACNAMEE; DANA

POWERS; LONG AND FOSTER REALTY;

LYNN THERELL; BILL PFEIFFER;

A. PAUL BURTON,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Virginia, at Newport News.

Raymond A. Jackson, District Judge.

(CA-95-50-4)

Submitted: July 2, 1996
Decided: August 6, 1996

Before HALL, WILKINS, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

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COUNSEL

Louis A. Marks, Jr., Brenda J. Marks, Jeremy S. Thompson, Appellants Pro Se. Susan Lynn Watt, OFFICE OF THE UNITED STATES

ATTORNEY, Norfolk, Virginia; LaDale Kenneth George, OFFICE

OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia; Donna Joyce Hall, MAYS & VALENTINE, Norfolk, Virginia;

Mary Christine Maggard, SHAPIRO & BURSON, Virginia Beach,

Virginia; Thomas Scott Carnes, SYKES, CARNES, BOURDON,

AHERN & SHAPIRO, Virginia Beach, Virginia; Alan Brody Rashkind, FURNISS, DAVIS, RASHKIND & SAUNDERS, Norfolk, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellants appeal from the dismissal of their complaint pursuant

to Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction. We affirm the dismissal of all claims except the claims against Drs. Carolina Longa and

Luc Vinh, employees of the Virginia Department of Rehabilitative

Services (the "Department"). Those claims we remand to the district

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court for further consideration in light of Biggs v. Meadows, 66 F.3d

56 (4th Cir. 1995).

In 1992, Appellant Brenda J. Marks filed an application for disability benefits. The Social Security Administration ("SSA") denied her

application and affirmed its decision on reconsideration. In 1994,

before a hearing was held by an Administrative Law Judge, the

Department reversed the denial. Since then, Ms. Marks has received

retroactive benefits and regular monthly disability payments. Thirteen

months passed between Ms. Marks's application for benefits and the

SSA's granting those benefits.

Over a year after Ms. Marks received retroactive disability benefits, Ms. Marks, her husband Louis Marks, and Ms. Marks's son, Jeremy Thompson, filed an action raising the following claims against

the following defendants:

(1) Against the SSA; John Groover, manager of the

Hampton Administration office; the Department; and

two employees of the Department, Dr. Longa and Dr.

Vinh. Appellants claim that these defendants improperly disposed of Brenda Marks's medical records,

which allegedly included an erroneous diagnosis and

were improperly sealed, thereby delaying her disability

determination. Appellants assert that this delay led to

foreclosure on their home and emotional distress;

(2) Against the Department of Veteran's Affairs (the

"VA"). Appellants claim that the VA failed in its statutory duty to provide assistance to Appellants to prevent

the foreclosure;

(3) Against the VA; Bank of America; Boatman's

National Mortgage Company ("National Mortgage");

Shapiro and Burson, a law firm; three lawyers who

work for Shapiro and Burson, Christine Patterson,

Lori-Don MacNamee, and Dana Powers; Long and

Foster Realty; two employees of Long and Foster,

Lynn Therell and Bill Pfeiffer; and A. Paul Burton,

City Attorney for the City of Hampton. Appellants

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claim that these defendants conspired to compromise

Appellants' rights to regain title to their property, causing them financial and emotional harm.

(4) Against Shapiro and Burson, Lori-Don MacNamee,

Christine Patterson, Dana Powers, Long and Foster,

Lynn Therell, Bill Pfeiffer, Bank of America; the VA;

and National Mortgage. Appellants contend that these

defendants misrepresented items to court officials,

altered legal documents, and authorized unnecessary

work and expenses in relation to the foreclosure.

Defendants, who are represented by various counsel, each moved

to dismiss the action. The district court granted the motion pursuant

to Rule 12(b)(1), finding first that federal jurisdiction hinged on

Claim (1) as the remaining allegations stated only state tort claims.

The court then found that it did not have jurisdiction over Claim (1)

under 42 U.S.C.A. § 405(g), 1983 (West 1994 & Supp. 1996) or 28

U.S.C. § 1331 (1988), and it could discern no other statutory basis for

a claim. Appellants appeal.

We affirm the dismissal of Claim (1) against all defendants except

Drs. Longa and Vinh on the reasoning of the district court. Marks v.

Social Sec. Admin., No. 95-CV-50 (E.D. Va. Nov. 2, 1995). With

regard to Drs. Longa and Vinh, the district court summarily assumed

that these employees of the Department were sued only in their official capacities. However, the district court did not address this court's

recent decision in Biggs v. Meadows, 66 F.3d 56 (4th Cir. 1995),

holding that a plaintiff need not plead expressly the capacity in which

he is suing a defendant in order to state a cause of action under

§ 1983. Instead, the court must examine the nature of the plaintiff's

claims, the relief sought, and the course of proceedings to determine

whether a state official is being sued in a personal capacity. Id. at 60-

61.

Biggs was decided on September 18, 1995, and the district court

entered its final order on November 2. However, all of the motions

to dismiss predated Biggs, and therefore, no briefing of the impact of

Biggs was before the court when it issued its decision.

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A determination of whether Drs. Longa and Vinh were sued in

their individual capacities impacts heavily on the remainder of the

issues in this case. First, if they were sued individually, they are not

entitled to Eleventh Amendment immunity in a suit pursuant to

§ 1331. See Scheuer v. Rhodes, 416 U.S. 232, 237-38 (1974),

overruled on other grounds, Davis v. Sherer , 468 U.S. 183 (1984).

Likewise, in a suit pursuant to § 1983, the question of capacity may

be determinative. Section 1983 allows suits for violations of civil

rights only if the violator acts under color of state law. It is unclear

whether the Department, and by extension its employees, acted under

color of federal or state law, and the circuits are split on this issue.

Compare Schoolcraft v. Sullivan, 971 F.2d 81, 88 (8th Cir. 1992)

(holding that the state disability determination agency operates pursuant to state statutory authority), cert. denied , ___ U.S. ___, 62

U.S.L.W. 3470 (U.S. Jan. 18, 1994) (No. 92-1392), and Laird v.

Ramirez, 884 F. Supp. 1265, 1281-82 (N.D. Iowa. 1995), and

Sorenson v. Concannon, 893 F. Supp. 1469, 1484 (D. Or. 1994), with

Ellis v. Blum, 643 F.2d 68, 76 (2d Cir. 1981) (holding that state defendants acted as mere agents of the SSA), and Ostroff, 554 F. Supp. at

353 (state agency and official acted under color of federal law). In

addition, if the district court finds that these Defendants were sued in

their individual capacities, they may be protected from suit by qualified immunity.

Finally, with regard to the remaining claims in the complaint, we

agree with the district court that they state no federal claim and therefore, do not confer federal jurisdiction. Furthermore, we find that it

would be inappropriate for the district court to exercise supplemental

jurisdiction over these claims should the claims against Drs. Longa

and Vinh survive. A district court may exercise supplemental jurisdiction over claims "that are so related to claims in the action within such

original jurisdiction that they form part of the same case or controversy." 28 U.S.C. § 1367(a) (1988). Appellants' claims regarding

their foreclosure are entirely separate from their claims against the

employees of the Department for negligent handling of Ms. Marks's

disability claim. None of the Defendants are the same, and the proof

required for each claim would not overlap.

Based on the foregoing reasoning, we remand for the limited purpose of addressing whether Appellants state a claim against Drs.

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Longa and Vinh in their individual capacities. We affirm the dismissal of all remaining defendants and claims. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the

decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED 

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