* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 26 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

HORATIO CLARK FORD, III

Plaintiff-Appellant and Counter-Defendant,

v. BANK OF AMERICA; SUSAN L. GARCIA; KAREN L. POWERS, Defendant-Appellees, and FIRST FEDERAL BANK; VALLEY BANK OF COMMERCE in ROSWELL; FIRST SECURITY BANK; VALLEY BANK OF COMMERCE in DEXTER; TAMMEY BEAVER; JESSICA BRYANT; MAE ARNOLD; PAULA FRANCO, and VIOLA MARTINEZ,

Defendants, Counter-Claimants and Appellees. No. 99-2368 (D.C. No CIV-99-855-BB-RLP)

(D.N.M.)

ORDER AND JUDGMENT *1 After examining the briefs and appellate record , this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument.

2 Before BALDOCK, HENRY , and LUCERO , Circuit Judges.

The plaintiff, Horatio Clark Ford, III, appeals the district court’s grant of the motion to dismiss for failure to state a claim filed by the defendants Bank of America, Susan L. Garcia, Karen L. Powers, Valley B ank of Commerce in Dexter, Valley Bank of Commerce in Roswell, First Federal B ank, Tammey Beaver, Jessica Bryant, Mae Arnold, and Viola Martinez. Mr . Ford also appeals the district court’s grant of the motion for summary ju dgment filed by the defendants First Security Bank and Paula Franco. For the reas ons set forth below, we affirm the district court’s decisions. 1
This case arises out of the refusal of the defendan t banks and bank officials to open a non-interest bearing checking account forMr. Ford after he refused to provide them with his social security number. In h is complaint, Mr. Ford alleged that the defendants’ refusal violated his rights un der the Privacy Act, 5 U.S.C. § 552a, the Fourth Amendment, and Article II, section 10 of the New Mexico Constitution. The district court granted the defen dants’ motions to dismiss and motions for summary judgment, reasoning that the Pr ivacy Act did not apply to2 In his appellate brief, Mr. Ford does not argue i n support of his claim

under the New Mexico Constitution and we, therefore , do not consider that claim in this appeal. 3 the defendant banks and that Mr. Ford’s complaint d id not state a claim under the federal or New Mexico constitutions. See Rec. vol. II at 21-22 (Transcript of Dec. 3, 1999 Hr’g). On appeal, Mr. Ford argues that the district court erred in ruling on the defendants’ motions before discovery could be condu cted. He further argues that the district judge should have recused from the cas e because, between 1972 and 1975, he worked for one of the law firms representi ng the defendants. Finally, Mr. Ford challenges the district court’s ruling on the merits of his Privacy Act and Fourth Amendment claims. 2 Upon review of the record, we conclude that the dis trict court did not err in ruling on the defendants’ motions without waiting f or the parties to conduct discovery. The defendants’ motion to dismiss for f ailure to state a claim addressed the legal sufficiency of Mr. Ford’s compl aint. The defendants’ motion for summary judgment also raised legal issues regar ding Mr. Ford’s claims. There is no indication that discovery would have re vealed information relevant to the rulings now challenged by Mr. Ford in this appe al. Moreover, in responding to the defendants’ motions, Mr. Ford did not reques t that the court allow him additional time for discovery before rendering its decision. See Fed. R. Civ. P.4

56(f) (providing that “[s]hould it appear from the affidavits of a party opposing the [summary judgment] motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's op position, the court may . . . order a continuance to permit [discovery]”); Ben Ezra, Wei nstein, & Co. v. America Online, Inc. , 206 F.3d 980, 987 (10th Cir. 2000) (“A party may not invoke Fed. R. Civ. P. 56(f) by merely asserting that discovery is incomplete or that specific facts necessary to oppose summary judgment are unavailabl e. Rather, the party must demonstrate precisely how additional discovery will lead to a genuine issue of material fact.”) (citation omitted). We further conclude that the district judge’s prioremployment with the law firm representing several of the defendants does no t warrant recusal. A judge is required to recuse himself “in any proceeding in wh ich his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Ad ditionally, a judge must recuse if “in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as lawyer concerning the matter.” 28 U.S.C. § 455(b)( 2). Here, the district judge’s association with the defendant’s law firm almost tw enty-five years before the filing of this case does not provide reasonable gro unds to question his impartiality. Moreover, there is no indication tha t the district judge or any of his former law partners served as lawyers in this matte r or indeed any other matter5

involving Mr. Ford. Cf. United States v. Walton , 56 F.3d 551, 556 (4th Cir. 1995) (concluding that representation of defendant in the 1970s by a law firm at which judge had worked as a senior partner constitu ted “an attenuated connection” between the judge and the defendant tha t did not warrant recusal under § 455). On the merits, we agree with the defendants that th e Privacy Act of 1974, 5 U.S.C.§ 552a, is inapplicable to the conduct at iss ue here. Mr. Ford relies on a provision of the Privacy Act, 5 U.S.C. § 552a, whic h provides that “[i]t shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provide d by law because of such individual’s refusal to disclose a social security account number.” Privacy Act of 1974, Pub. L. No. 93-579, § 7, 88 Stat. 1897, 1909, reprinted in 5 U.S.C. § 552a, note. As used in the Privacy Act, “the term ‘agenc y’ . . . includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executiv e branch of the Government (including the Executive Office of the President), or any independent regulatory agency.” 5 U.S.C. § 552(f); see id. § 552a(a)(1). Applying those definitions, this circuit has concluded that the Privacy Act does not apply to national banks. See United States v. Miller , 643 F.2d 713, 715 n.1 (10th Cir. 1981); see also Williams v. City Bank , 566 F. Supp. 827, 830 (E.D. Mo. 1983) (concluding that plaintiff’s6

allegations that the defendant bank “is a member of the F.D.I.C., is federally regulated, operates under color of the federal gove rnment and exists only by virtue of federal authorization” were insufficient to raise an issue of fact as to whether the bank was a federal agency under the Pri vacy Act). Thus, the district court properly dismissed Mr. Ford’s Privacy Act cla im against the defendants. Finally, with regard to his Fourth Amendment claim, Mr. Ford has failed to allege the requisite search or seizure or invasion of his privacy rights. Accepting Mr. Ford’s allegations as true and affording him th e benefit of all favorable factual inferences, the defendants merely refused t o open an account for him. They did not subject him to a search or seizure or disclose private information.
See Horton v. California , 496 U.S. 128, 133 (1990) (noting that “[a] search compromises the individual interest in privacy; a seizure deprives the individual of dominion over his or her person or property”). Accordingly, the district court’s decisions dismiss ing Mr. Ford’s claims

against the defendants are AFFIRMED.7 Entered for the Court,

Robert H. Henry United States Circuit Judge