Filed: July 14, 1998

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 97-1310

(CA-96-896-A)

Theodore S. Deeds, et al,

Plaintiffs - Appellants,

versus

County of Fairfax, Virginia,

Defendant - Appellee.

ORDER

The court amends its opinion filed June 5, 1998, as follows:

On the cover page, section 7, line 2 -- counsel’s name is

corrected to read "Peter Donald Andreoli, Jr."

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THEODORE S. DEEDS; MARGARET A.

DEEDS,

Plaintiffs-Appellants,

No. 97-1310

v.

COUNTY OF FAIRFAX, VIRGINIA,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CA-96-896-A)

Argued: March 5, 1998

Decided: June 5, 1998

Before WILKINS and HAMILTON, Circuit Judges, and

BROADWATER, United States District Judge for the

Northern District of West Virginia,

sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Richard E. Gardiner, Fairfax, Virginia, for Appellants.

Peter Donald Andreoli, Jr., Senior Assistant County Attorney, Fairfax,

Virginia, for Appellee. ON BRIEF: David P. Bobzien, County Attorney, Robert Lyndon Howell, Deputy County Attorney, Fairfax, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Theodore S. Deeds and Margaret A. Deeds (the Deeds) filed suit

against the County of Fairfax, Virginia (the County), for alleged civil

rights violations under Title 42, United States Code, Section 1983.

The Deeds allege that the County caused the improper disclosure of

their respective social security numbers in relation to their individual

applications for concealed handgun permits pursuant to Virginia Code

§ 18.2-308. Specifically, the Deeds argue that the disclosures were

made without informing the Deeds whether such was mandatory or

voluntary, by what statutory or other authority the social security

numbers were solicited, and as to what uses would be made of the

social security numbers as required by Section 7(b) of the federal Privacy Act of 1974, P.L. 93-579.1 The County filed a motion for summary judgment which the Deeds opposed. The district court granted

summary judgment in favor of the County on the grounds that, as a

matter of law, the County substantially complied with Section 7(b)

and the disclosures of the social security numbers did not cause the

damages the Deeds alleged. The Deeds appealed. We are of the opinion that the district court decided the summary judgment issues properly and, therefore, we affirm.

I.

Under Fed.R.Civ.P. 56(c), summary judgment is appropriate if the

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1 Section 7 of the Privacy Act of 1974, Pub. L. 93-579, appears as a

note under 5 U.S.C. § 552a. Section 7 of Pub. L. 93-579 provided that:

(b) Any Federal, State, or local government agency which

requests an individual to disclose his social security account

number shall inform that individual whether the disclosure is

mandatory or voluntary, by what statutory or other authority

such number is solicited, and what uses will be made of it.

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pleadings show there is no genuine issue as to any material fact and

the moving party is entitled to judgment as a matter of law. The party

seeking summary judgment bears the initial burden of showing the

absence of any issues of material fact. Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986); see also Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986).

A district court's grant of summary judgment is reviewed de novo.

Nguyen v. CNA Corp., 44 F.3d 234, 236-37 (4th Cir. 1995). In

reviewing the supported underlying facts, all inferences must be

viewed in the light most favorable to the party opposing the motion

to determine whether any material issues of fact exist for trial. Id. The

facts are reiterated below.

II.

On July 3, 1995,2 the Deeds appeared at the County's Public Safety

Complex to begin the process of applying for a concealed handgun

permit (CHP). The process required that the applicants complete FBI

fingerprint cards and be photographed.3 Anticipating a substantial

number of applicants, the County arranged for the County's police

personnel to aid in distributing the CHP applications promulgated by

the Virginia Supreme Court, application instructions from the Virginia Supreme Court, and other informational documents relating to

the application process. (J.A. at 240-241.) The Virginia Supreme

Court application required an applicant to provide his or her social

security number. The application instructed further that an applicant

must attach a fingerprint card with data blanks completed. The fingerprint card also required the applicant's social security number. (J.A.

at 13-16, 245.) The County's procedure included providing CHP

applicants with additional information and instructional documents.4

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2 Monday, July 3, 1995, was the first business day following the effective date of the 1995 amendments to Virginia Code § 18.2-308.

3 The photograph of the applicant was necessary to ensure that the person who had applied and whose fingerprints had been taken was the

same person who later picked up the CHP if issued. (Joint Appendix

[J.A.] at 249, 253.)

4 The CHP applicants were also provided the following: Filing Procedure for Concealed Handgun Permit (J.A. at 239.), Concealed Handgun

Permit Application (J.A. at 247.), and another document prepared by the

police department (J.A. at 248.).

 3
Due to the numerosity of applicants, a temporary processing area

was constructed outside the County Police Department Headquarters

Annex. The application process was divided into stations manned by

County personnel. Applicants were required to provide photo identification and complete the necessary paperwork at each station.

Near the end of the process, the CHP applicant was required to

pose at the photography station for an identification picture which

would accompany the CHP application. The County employee would

write the applicant's name and social security number on an erasable,

white marker board. Then, the applicant would stand with his or her

back to the County's Annex building, facing outward toward the public, and hold the white marker board at chest level for the picture.

Although the social security number was not identified as such on the

marker board, the numbers were separated by hyphens in the typical

social security number pattern.

As the 1995 CHP application process was newsworthy, there were

a large number of photographers, video cameramen, reporters, and

other members of the press present covering the activities at the

County Annex. (J.A. at 74.) At some time during the completion of

the process, the Deeds were photographed and interviewed by both

newspaper media and television personnel. Mrs. Deeds' picture

depicted her holding the board marked with her name and social

security number. The Deeds' comments, statements, and pictures

appeared in a Washington Times article the next day. However, the

picture of Mrs. Deeds was published a second time in the July 17,

1995 edition of U.S. News & World Report.

III.

Subsequent to that publication, the Deeds brought suit under Section 7(b) of the Privacy Act of 174. Section 7(b) provides in pertinent

part

Any Federal, State, or local government agency which

requests an individual to disclose his social security number

shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory authority or other

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authority such number is solicited, and what uses will be

made of it.

The Deeds allege that "as a result of the publication of the photograph

in U.S. News & World Report, Mrs. Deeds' name and social security

account number have been disclosed to the world."5 The Deeds allege

further that the County employees processing their CHP applications

did not make the proper inquiries of them as required by the language

of Section 7(b). The Deeds claim damages for injuries suffered,

including mental anguish and emotional distress, and ask for combined compensatory damages of $101,000.00.

The County filed a motion for summary judgment on the grounds

that Section 7(b) does not create a right, privilege, or immunity

actionable under 42 U.S.C. § 1983 as to state or local governments.

The County also argued that the Deeds were given notice of the

necessity of their social security numbers in the instructional documents provided to them at the initial processing stations.

The district court noted that the United States Supreme Court has

held that 42 U.S.C. § 1983 provides a cause of action for violations

of federal statutes as well for violations of the Constitution. Maine v.

Thiboutot, 448 U.S. 1, 4 (1980). A plaintiff alleging the violation of

a federal statute will be permitted to sue under 42 U.S.C. § 1983

unless (1) the statute does not create enforceable rights, privileges, or

immunities within the meaning of §1983, or (2) Congress has foreclosed such enforcement of the statute in the enactment itself. Wilder

v. Virginia Hospital Association, 496 U.S. 498, 508 (1990).6

Assuming without deciding that Section 7(b) creates a right, privilege, or immunity enforceable under § 1983, we conclude that the district court below was correct in finding that the County substantially

complied with the terms of Section 7(b). Therefore, the district court

appropriately granted summary judgment in favor of the County.

The instructions provided to the CHP applicants enforce the intent

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5 Complaint, ¶ 12. (J.A. at 16C.)

6 See Memorandum Opinion, p. 3. (J.A. at 218.)

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behind the language of Section 7(b). The CHP application itself

requires a social security number. Further, the application requires an

applicant to affirm that the information provided is correct and complete. The FBI fingerprint card instructed that it needed complete

information and required an applicant's social security number. The

application was also thorough as it indicated under what Virginia

code section it was promulgated, and as well, listed statutory disqualification criteria. The application informed CHP applicants that the

court needed to consult with law enforcement officials and that it

required a Central Criminal Records Exchange report before issuing

a permit.

Considering the above as a whole, the information and instructions

provided to each CHP applicant were sufficiently clear that the disclosure of a social security number was mandatory, the information was

solicited pursuant to the Virginia Code, and informed the applicant

that the social security number was necessary to complete a background check.

IV.

Upon consideration of the record, briefs, and oral argument, we

affirm for those reasons adequately stated by the district court in its

memorandum opinion, Theodore S. Deeds, et al. v. County of Fairfax,

Va., No. 96-896 (E.D.Va. February 21, 1997).

AFFIRMED

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